AGREEMENT AND PLAN OF MERGER by and among BAE SYSTEMS, INC., MIRA ACQUISITION SUB INC. and MTC TECHNOLOGIES, INC. dated as of December 21, 2007
Exhibit
99.1
AGREEMENT
AND PLAN OF MERGER
by
and among
MIRA
ACQUISITION SUB INC.
and
MTC
TECHNOLOGIES, INC.
dated
as
of
December
21, 2007
Page
-x-
-ii-
-iii-
INDEX
OF EXHIBITS
|
Exhibit
A
|
Stockholder
Voting Agreement
|
|
Exhibit
B
|
Certificate
of Incorporation of the Surviving Corporation
|
|
Exhibit
C
|
Bylaws
of the Surviving
Corporation
|
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER (this
“Agreement”), dated as of December 21, 2007, by and
among BAE Systems, Inc., a Delaware corporation
(“Parent”), Mira Acquisition Sub Inc., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger
Sub”), and MTC Technologies, Inc., a Delaware corporation (the
“Company”).
RECITALS
WHEREAS,
the respective Boards of
Directors of Parent, Merger Sub and the Company each have approved, and in
the
case of the Company and Merger Sub deem it advisable and in the best interests
of their respective stockholders to consummate, the acquisition of the Company
by Parent by means of a merger of Merger Sub with and into the Company upon
the
terms and subject to the conditions set forth in this Agreement, whereby
each
issued and outstanding share of the Company’s Common Stock (such issued and
outstanding shares of the Company’s Common Stock, collectively, the
“Shares”), other than Dissenting Shares, Shares owned
by Parent or any wholly-owned Subsidiaries of Parent or the Company, and
any
shares of Common Stock held in the treasury of the Company, will be converted
into the right to receive the Merger Consideration; and
WHEREAS,
concurrently with the
execution of this Agreement, and as a condition to the willingness of Parent
and
Merger Sub to enter into this Agreement, Xxxxxx X. Xxxx and a stockholder
affiliated with him are entering into an agreement with Parent in substantially
the form of Exhibit A attached hereto, pursuant to which Xxxxxx X. Xxxx
and such stockholder shall agree to take certain actions to support the
Transactions (the “Stockholder Voting
Agreement”).
NOW,
THEREFORE, in consideration of the
foregoing and the mutual representations, warranties, covenants and agreements
set forth in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, upon the terms and subject to the conditions of this Agreement,
the parties to this Agreement agree as follows:
THE
MERGER
Section
1.1 The
Merger. Upon the terms and subject to the conditions of this
Agreement and in accordance with the DGCL, at the Effective Time, Merger
Sub
will be merged with and into the Company (the
“Merger”), the separate corporate existence of Merger
Sub will cease, and the Company will continue as the surviving
corporation. The Company as the surviving corporation after the
Merger is referred to in this Agreement as the “Surviving
Corporation.”
Section
1.2 Closing. The
closing of the Merger (the “Closing”) shall take place
at 10:00 a.m. on the second Business Day after the satisfaction or waiver
of all of the conditions (other than any condition that by its nature cannot
be
satisfied until the Closing, but subject to satisfaction of any such condition)
set forth in Article VII (the “Closing
Date”), at the offices of Xxxxx Day, North Point, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000, unless another date or place is agreed to
in
writing by the parties to this Agreement.
Section
1.3 Effective
Time. The parties to this Agreement shall cause the Merger to be
consummated by filing a certificate of merger (the “Certificate of
Merger”) on the Closing Date (or on such other date as Parent and
the Company may agree) with the Secretary of State of the State of Delaware,
in
such form as required by, and executed in accordance with, the relevant
provisions of the DGCL (the date and time of the filing of the Certificate
of
Merger with the Secretary of State of the State of Delaware, or such later
time
as is specified in the Certificate of Merger and as is agreed to by Parent
and
the Company, being the “Effective Time”).
Section
1.4 Effect of
the Merger. The Merger shall have the effects set forth in the
applicable provisions of the DGCL. Without limiting the generality of
the foregoing and subject thereto, at the Effective Time, all the property,
rights, privileges, immunities, powers, franchises and authority of the Company
and Merger Sub shall vest in the Surviving Corporation and all debts,
liabilities and duties of the Company and Merger Sub shall become the debts,
liabilities and duties of the Surviving Corporation.
Section
1.5 Certificate
of Incorporation; Bylaws.
(a) At
the Effective Time, the Amended and Restated Certificate of Incorporation
of the
Company shall be amended so as to read in its entirety in the form attached
hereto as Exhibit B, and, as so amended, shall be the certificate of
incorporation of the Surviving Corporation until thereafter amended in
accordance with its terms and applicable Law.
(b) At
the Effective Time, the Amended and Restated Bylaws of the Company shall
be
amended so as to read in their entirety in the form attached hereto as
Exhibit C, and, as so amended shall be the bylaws of the Surviving
Corporation until thereafter amended in accordance with their terms, the
certificate of incorporation of the Surviving Corporation and applicable
Law.
Section
1.6 Directors
and Officers of the Surviving Corporation. The directors of
Merger Sub immediately before the Effective Time will be the initial directors
of the Surviving Corporation and the officers of Merger Sub immediately before
the Effective Time will be the initial officers of the Surviving Corporation,
in
each case until their successors are duly elected or appointed and qualified
or
until their earlier death, resignation or removal in accordance with the
certificate of incorporation and the bylaws of the Surviving
Corporation.
EFFECT
OF THE MERGER ON CAPITAL STOCK
Section
2.1 Conversion
of Securities. At the Effective Time, by virtue of the Merger and
without any action on the part of Parent, Merger Sub, the Company or the
holders
of Shares or securities of Parent or Merger Sub:
(a) Each
Share issued and outstanding immediately before the Effective Time (other
than
any Shares to be cancelled pursuant to Section 2.1(b)
and any Dissenting Shares) will be cancelled and extinguished and be converted
into the right to receive $24.00 in cash payable to the
holder of such Share, without interest (the “Merger
Consideration”), upon surrender of the certificate formerly
representing such Share (a “Certificate”) in the
manner provided in Section 2.2. All such
Shares, when so converted, will no longer be outstanding and will be
automatically cancelled, retired and cease to exist. Each holder of a
Certificate representing any such Shares will cease to have any rights with
respect to such Shares, except the right to receive the Merger Consideration
for
such Shares upon the surrender of such Certificate in accordance with
Section 2.2, without interest.
(b) Each
Share held in the treasury of the Company and each Share owned by Parent
or any
direct or indirect wholly-owned Subsidiary of Parent or the Company immediately
before the Effective Time will be cancelled and extinguished, and no payment
or
other consideration will be made with respect to such Shares.
(c) Each
share of common stock, par value $0.01 per share, of Merger Sub issued and
outstanding immediately before the Effective Time will thereafter represent
one
validly issued, fully paid and nonassessable share of common stock, par value
$0.01 per share, of the Surviving Corporation.
Section
2.2 Payment;
Surrender of Shares; Stock Transfer Books.
(a) Before
the Effective Time, Merger Sub shall designate a bank or trust company
reasonably acceptable to the Company to act as agent for the holders of Shares
in connection with the Merger (the “Paying Agent”) to
receive the funds necessary to make the payments contemplated by
Section 2.1(a). At the Effective Time, Parent
or Merger Sub shall deposit, or cause to be deposited, in trust with the
Paying
Agent in a separate account for the benefit of holders of Shares (the
“Payment Fund”) the aggregate Merger Consideration to
which such holders shall be entitled at the Effective Time pursuant to
Section 2.1(a). If for any reason the cash in
the Payment Fund shall be insufficient to fully satisfy all of the payment
obligations to be made in cash by the Paying Agent hereunder, Parent shall
promptly deposit cash into the Payment Fund in an amount which is equal to
the
deficiency in the amount of cash required to fully satisfy such cash payment
obligations.
(b) As
soon as reasonably practicable after the Effective Time and in any event
not
later than five Business Days following the Effective Time, Parent shall
cause
the Paying Agent to mail to each holder of record of a Certificate or
Certificates whose shares were converted into the right to receive the Merger
Consideration pursuant to Section 2.1(a) (i) a
letter of transmittal (which must specify that delivery will be effected,
and
risk of loss and title to the Certificates will pass, only upon delivery
of the
Certificates to the Paying Agent and will be in such form and have such other
provisions as the Company and Merger Sub may reasonably specify) and
(ii) instructions for use in surrendering Certificates in exchange for the
Merger Consideration. Each holder of a Certificate or Certificates
may thereafter until the first anniversary of the Effective Time surrender
such
Certificate or Certificates to the Paying Agent under cover of the letter
of
transmittal, as agent for such holder. Upon delivery of a valid
letter of transmittal and the surrender of Certificates on or before the
first
anniversary of the Effective Time, Merger Sub shall cause the Paying Agent
to
pay the holder of such Certificates, in exchange for the Certificates, cash
in
an amount equal to the Merger Consideration multiplied by the number of Shares
represented by such Certificate, without interest. Until so
surrendered, each Certificate (other than Certificates representing Dissenting
Shares, Shares held by Parent or any direct or indirect wholly-owned Subsidiary
of Parent or the Company, and Shares held in the treasury of the Company)
will
represent solely the right to receive the aggregate Merger Consideration
relating to the Shares represented by such Certificates.
(c) If
payment of the Merger Consideration in respect of cancelled Shares is to
be made
to a Person other than the Person in whose name a surrendered Certificate
is
registered, it will be a condition to such payment that the Certificate so
surrendered will be properly endorsed or otherwise be in proper form for
transfer and that the Person requesting such payment shall have paid any
transfer and other Taxes required by reason of such payment in a name other
than
that of the registered holder of the Certificate surrendered or shall have
established to the satisfaction of Merger Sub that such Tax either has been
paid
or is not applicable. The Merger Consideration paid upon the
surrender for exchange of Certificates in accordance with the terms of this
Article II will be deemed to have been paid in full
satisfaction of all rights pertaining to the Shares theretofore represented
by
such Certificates.
(d) At
the Effective Time, the stock transfer books of the Company will be closed
and
there will not be any further registration of transfers of any shares of
the
Company’s capital stock thereafter on the records of the
Company. From and after the Effective Time, the holders of
Certificates will cease to have any rights with respect to any Shares, except
as
otherwise provided for in this Agreement or by applicable Law. If,
after the Effective Time, Certificates (other than Certificates representing
Dissenting Shares, Shares held by Parent or any direct or indirect wholly-owned
Subsidiary of Parent or the Company, and Shares held in the treasury of the
Company) are presented to the Surviving Corporation, they will be cancelled
and
exchanged for Merger Consideration as provided in this Article
II. No interest will accrue or be paid on any cash
payable upon the surrender of a Certificate or Certificates which immediately
before the Effective Time represented the Shares.
(e) Promptly
following the date which is one year after the Effective Time, the Surviving
Corporation will be entitled to require the Paying Agent to deliver to it
any
cash, including any interest received with respect to such cash, and, for
the
avoidance of doubt, any Certificates or other documents, in its possession
relating to the transactions contemplated by this Agreement (the
“Transactions”), which had been made available to the
Paying Agent and which have not been disbursed to holders of Certificates
or
previously delivered to the Surviving Corporation, as applicable, and thereafter
such holders will be entitled to look to the Surviving Corporation (subject
to
abandoned property, escheat or similar Laws) only as general creditors of
the
Surviving Corporation with respect to the Merger Consideration payable upon
due
surrender of their Certificates, without any interest on such Merger
Consideration. Notwithstanding the foregoing, none of Parent, the
Surviving Corporation or the Paying Agent will 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.
(f) Notwithstanding
any provision in this Agreement to the contrary, Parent, the Surviving
Corporation and the Paying Agent shall be entitled to deduct and withhold
from
the consideration otherwise payable under this Agreement to any holder of
Shares, and from amounts payable pursuant to Section
2.3, such amounts as are required to be withheld or deducted under
the Code, the rules and regulations promulgated thereunder, or any provision
of
U.S. state, local or foreign Tax Law with respect to the making of such
payment. To the extent that amounts are so withheld or deducted and
paid over to the applicable Governmental Entity by Parent, the Surviving
Corporation or the Paying Agent, such withheld or deducted amounts shall
be
treated for all purposes of this Agreement as having been paid to the holder
of
the Shares or Options or RSUs in respect of which such deduction and withholding
were made.
Section
2.3 Treatment
of Stock Plans.
(a) At
the Effective Time, each then-outstanding option (the
“Options”) to purchase shares of the Company’s Common
Stock under a Stock Plan not previously exercised, whether or not then vested
and exercisable, will be converted into the right to receive, in settlement
thereof, a cash payment equal to the product of (i) the excess, if any, of
the
per Share Merger Consideration over the exercise price per share of Common
Stock
subject to such Option and (ii) the number of shares of Common Stock subject
to
such Option; provided that any Option for which the per share exercise
price exceeds the per Share Merger Consideration shall be canceled without
any
payment in respect thereof.
(b) At
the Effective Time, each holder of a restricted stock unit (a
“RSU”) under a Stock Plan will be entitled to receive,
in settlement thereof, for each share of the Company’s Common Stock subject to
such RSU, a cash payment equal to the Merger Consideration.
(c) All
amounts payable pursuant to this Section 2.3 shall be
subject to Section 2.2(f) and shall be paid without
interest.
(d) Prior
to the Effective Time, the Company shall obtain any necessary consents or
releases, if any, from the holders of Options and RSUs under the Stock Plans
and
take all such other lawful action as may be necessary (which include satisfying
the requirements of Rule 16b-3(e) promulgated under the Exchange Act, and
including adopting any necessary actions or resolutions of the Company Board
or,
if appropriate, any committee administering the Stock Plans) to provide for
and
give effect to the transactions contemplated by this Section
2.3. Except as otherwise agreed to in writing by the
parties, (i) the Stock Plans will terminate as of the Effective Time and
(ii)
the Company shall assure that following the Effective Time, no participant
in
any Stock Plan shall have any right under any such Stock Plan to acquire
the
capital stock of the Company or the Surviving Corporation.
(e) Prior
to the Effective Time, the Company shall cause the Transactions, and any
other
dispositions of equity interests of the Company (including derivative
securities) in connection with this Agreement by each individual who is subject
to the reporting requirements of Section 16(a) of the Exchange Act to be
approved by the Company Board or a committee of two or more non-employee
directors of the Company (as such term is defined in Rule 16b-3 promulgated
under the Exchange Act). Such approval shall specify: (A) the name of
each officer or director, (B) the number of securities to be disposed of
for
each named person, and (C) that the approval is granted for purposes of
exempting the transaction under Rule 16b-3 promulgated under the Exchange
Act.
Section
2.4 Dissenting
Shares.
(a) Shares
that are issued and outstanding immediately prior to the Effective Time and
which are held by holders who have not voted in favor of or consented to
the
Merger and who are otherwise entitled to demand and have properly demanded
and
perfected their rights to be paid the fair value of such Shares in accordance
with, and who comply in all respects with, Section 262 of the DGCL (the
“Dissenting Shares”) shall not be converted into the
right to receive the Merger Consideration, and the holders thereof shall
be
entitled to only such rights as are granted by Section 262 of the DGCL;
provided, however, that if any such stockholder of the Company
shall fail to perfect or shall effectively waive, withdraw or lose such
stockholder’s rights under Section 262 of the DGCL, such stockholder’s Shares in
respect of which the stockholder would otherwise be entitled to receive fair
value under Section 262 of the DGCL shall thereupon be deemed to have been
converted, at the Effective Time, into the right to receive the Merger
Consideration as provided in Section
2.1(a), without any interest thereon, upon
surrender of the Certificate or Certificates representing such Shares pursuant
to Section 2.2.
(b) The
Company shall give Parent (i) prompt notice of any notice received by the
Company of the intent of any holder of Shares to demand appraisal of any
Shares,
any written demand for appraisal, any withdrawals thereof and any instruments
served pursuant to Section 262 of the DGCL and received by the Company and
(ii) the opportunity to direct all negotiations and proceedings with
respect to the exercise of dissenters’ rights under Section 262 of the
DGCL. The Company shall not, except with the prior written consent of
Parent or as otherwise required by an Order, make any payment with respect
to
any such exercise of dissenters’ rights or offer to settle or settle any such
demands.
Section
2.5 Subsequent
Actions. If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation, its right, title or interest in, to or under any of the rights,
properties or assets of either of the Company or Merger Sub vested in or
to be
vested in the Surviving Corporation as a result of, or in connection with,
the
Merger or otherwise to carry out this Agreement, the officers and directors
of
the Surviving Corporation shall be authorized to execute and deliver, in
the
name and on behalf of either the Company or Merger Sub, all such deeds, bills
of
sale, assignments and assurances and to take and do, in the name and on behalf
of each of such corporations or otherwise, all such other actions and things
as
may be necessary or desirable to vest, perfect or confirm any and all right,
title and interest in, to and under such rights, properties or assets in
the
Surviving Corporation or otherwise to carry out this Agreement.
Section
2.6 Lost
Certificates. If 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 and, if required by the
Surviving Corporation, the posting by such Person of a bond, in such reasonable
amount as the Surviving Corporation may direct, as indemnity against any
claim
that may be made against it with respect to such Certificate, the Paying
Agent
will pay, in exchange for such lost, stolen or destroyed Certificate, the
Merger
Consideration to be paid in respect of the Shares represented by such
Certificate, as contemplated by this Article
II.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except
as set forth in the letter from
the Company, dated the date hereof, addressed to Parent and Merger Sub (the
“Company Disclosure Letter”) (with specific reference
to the Section or subsection of this Agreement to which the information stated
in such letter relates; provided, however, that information set
forth in one Section of the Company Disclosure Letter shall be deemed to
apply
to each other Section or subsection to which its relevance is readily apparent
on its face) or in the Company SEC Documents filed and publicly available
prior
to the date of this Agreement (to the extent the qualifying nature of such
disclosure is readily apparent on its face, but excluding any disclosure
in such
Company SEC Documents set forth under the heading “Risk Factors” or the heading
“Forward Looking Statements” or any other disclosures of risks generally faced
by participants in the industry in which the Company operates and descriptions
of general risks not related to specifically disclosed facts or circumstances),
the Company represents and warrants to Parent and Merger Sub as
follows:
Section
3.1 Organization.
(a) Each
of the Company and its Subsidiaries is a corporation, partnership or other
entity duly organized, validly existing and in good standing under the Laws
of
the jurisdiction of its incorporation or organization and has all requisite
corporate or other power and authority and all necessary governmental approvals
to own, lease and operate its properties and to carry on its business as
now
being conducted, except where the failure (i) other than in the case of the
Company, to be so organized, existing and in good standing or (ii) to have
such power, authority and governmental approvals, has not had and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(b) The
Company and each of its Subsidiaries is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by
it
makes such qualification or licensing necessary, except where the failure
to be
so duly qualified or licensed and in good standing has not had and would
not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. The Company does not own any equity interests in any
corporation or other entity, except for its Subsidiaries.
Section
3.2 Authorization;
Validity of Agreement; Company Action.
(a) The
Company has full corporate power and authority to execute and deliver this
Agreement and to consummate the Transactions. The execution, delivery
and performance by the Company of this Agreement, and the consummation by
it of
the Transactions, have been duly and validly authorized by the Board of
Directors of the Company (the “Company Board”), and no
other corporate action on the part of the Company is necessary to authorize
the
execution, delivery and performance by the Company of this Agreement and
the
consummation by it of the Transactions, except that the consummation of the
Merger requires the Stockholder Approval. This Agreement has been
duly executed and delivered by the Company and, assuming due and valid
authorization, execution and delivery of this Agreement by Parent and Merger
Sub, is a valid and binding obligation of the Company enforceable against
the
Company in accordance with its terms, except that (i) such enforcement may
be
subject to applicable bankruptcy, reorganization, insolvency, moratorium
or
other similar Laws, now or hereafter in effect, affecting creditors’ rights
generally and (ii) the remedy of specific performance and injunctive and
other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(b) Assuming
the accuracy of the representation and warranty in Section
4.4, the affirmative vote of the holders of a majority of the
outstanding Shares to adopt this Agreement (the “Stockholder
Approval”) is the only vote or consent of the holders of any class
or series of the Company’s capital stock, or any of them, that is necessary in
connection with the consummation of the Merger and the other
Transactions.
(c) At
a meeting duly called and held, the Company Board adopted resolutions, which
resolutions have not been subsequently rescinded, modified or withdrawn in
any
way, in which it (i) determined that this Agreement and the Transactions
are
fair to and in the best interests of the Company’s stockholders and declared
this Agreement advisable, (ii) approved this Agreement and the Transactions,
(iii) directed that the adoption of this Agreement be submitted to a vote
at a
meeting of the Company’s stockholders and (iv) resolved (subject to
Section 5.2) to recommend to the Company’s stockholders
that they adopt this Agreement (such recommendation, the “Company
Recommendation”).
Section
3.3 Consents
and Approvals; No Violations. Except, in the case of clause (b)
below, for filings, permits, authorizations, consents and approvals as may be
required under, and other applicable requirements of, the Exchange Act, the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
“HSR Act”), Section 721 of the Defense Production Act,
as amended (or any successor or replacement thereof, and including the rules
and
regulations thereunder, “Exon-Xxxxxx”), the filing
with the SEC of the Proxy Statement and the making of such other filings
as may
be required under the Exchange Act or by the rules of the Nasdaq Stock Market
in
connection with this Agreement, and the filing of the Certificate of Merger,
none of the execution, delivery or performance of this Agreement by the Company,
the consummation by the Company of the Transactions or compliance by the
Company
with any of the provisions of this Agreement will (a) conflict with or result
in
any breach of any provision of the Amended and Restated Certificate of
Incorporation or the Amended and Restated Bylaws of the Company or similar
organizational documents of any of the Company’s Subsidiaries, (b) require any
filing with, or any permit, authorization, consent or approval of, any court,
arbitral tribunal, administrative agency or commission or other governmental
or
regulatory authority or agency (whether domestic, foreign or supranational)
(a “Governmental Entity”), (c) result in a
violation or breach of, or constitute (with or without due notice or lapse
of
time or both) a default under, or give rise to a right of, or result in,
termination, amendment, cancelation or acceleration of any obligation or
to loss
of a material benefit under, or result in the creation of any Encumbrance
upon
any of the properties or assets of the Company or any of its Subsidiaries
under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, Company Permit or other permit, concession,
franchise, agreement or other instrument or obligation, whether written or
oral,
to which the Company or any of its Subsidiaries is a party or by which any
of
them or any of their properties or assets may be bound or (d) violate any
Order
or Law applicable to the Company, any of its Subsidiaries or any of their
properties or assets, except in the case of clauses (b), (c) or (d) where
failure to obtain such permits, authorizations, consents or approvals or
to make
such filings, or where such violations, breaches or defaults that would not
have, or that would not reasonably be expected to have, individually or in
the
aggregate, a Material Adverse Effect.
Section
3.4 Capitalization.
(a) The
authorized capital stock of the Company consists of 5,000,000 shares of
preferred stock, par value $0.001 per share (the “Preferred
Stock”), and 50,000,000 shares of common stock, par value $0.001
per share (the “Common Stock”). As of the
date of this Agreement, (i) no shares of Preferred Stock are issued and
outstanding, (ii) 15,147,906 shares of Common Stock are issued and
outstanding, (iii) 694,570 shares of Common Stock are
issued and held in the treasury of the Company, (iv) 852,509 shares of Common
Stock are reserved for issuance under the Stock Plans in respect of outstanding
and future awards, (v) with respect to all outstanding Options, 372,910
shares of Common Stock are issuable upon the exercise of such Options and
(vi)
91,133 shares of Common Stock are issuable upon the vesting of outstanding
RSUs. Section 3.4(a) of the Company
Disclosure Letter discloses, as of the date of this Agreement, the number
of
shares subject to each outstanding Option and the exercise price of each
Option
and the number of shares subject to each outstanding RSU. All the
outstanding shares of Common Stock are, and all shares of Common Stock which
may
be issued pursuant to the exercise of outstanding Options or the vesting
of
outstanding RSUs will be, when issued in accordance with the terms of the
Options or the RSUs, duly authorized, validly issued, fully paid and
non-assessable. Except as set forth in this Section
3.4(a) and for changes resulting from the exercise of the Options
outstanding as of the date hereof, there are no (v) shares of capital stock
or other equity interests or voting securities of the Company and its
Subsidiaries authorized, issued or outstanding, (w) existing options, warrants,
calls, preemptive rights, subscription or other rights, agreements, arrangements
or commitments of any character, obligating the Company or any of its
Subsidiaries to issue, transfer or sell or cause to be issued, transferred
or
sold any shares of capital stock or other equity interest or voting security
in
the Company or any of its Subsidiaries or securities convertible into or
exchangeable for such shares of capital stock or other equity interests or
voting securities, or obligating the Company or any of its Subsidiaries to
grant, extend or enter into any such option, warrant, call, preemptive right,
subscription or other right, agreement, arrangement or commitment (other
than
the Registration Rights Agreements), (x) outstanding contractual
obligations of the Company or any of its Subsidiaries to repurchase, redeem
or
otherwise acquire any Shares, or the capital stock or other equity interests
or
voting securities of the Company or of any Subsidiary or Affiliate of the
Company or to provide funds to make any investment (in the form of a loan,
capital contribution or otherwise) in any Subsidiary of the Company,
(y) issued or outstanding stock appreciation rights, “phantom” stock
rights, performance awards, units, dividend equivalent awards, rights to
receive
shares of Company’s Common Stock on a deferred basis, rights to purchase or
receive Company’s Common Stock or other equity interest or voting securities
issued or granted by the Company or any of its Subsidiaries to any current
or
former director, officer, employee or consultant of the Company or any of
its
Subsidiaries or (z) other rights or instruments that are linked to the
price or value of the Company’s Common Stock or other equity interest or voting
securities of the Company or its Subsidiaries (the items referred to in clauses
(v) through (z) of or with respect to any Person, collectively,
“Rights”). No Subsidiary of the Company
owns any Shares.
(b) Each
Option intended to qualify as an “incentive stock option” under Section 422
of the Code so qualifies. With respect to the Options, (i) to
the Company’s Knowledge, each grant of Options was duly authorized no later than
the date on which the grant of such Options was by its terms to be effective
(the “Grant Date”) by all necessary corporate action,
including, as applicable, approval by the Company Board (or a duly constituted
and authorized committee thereof), or a duly authorized delegate thereof,
and
any required stockholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was duly
delivered by the Company to the recipient, (ii) each such grant was made in
accordance with the terms of the applicable Stock Plan of the Company, the
Exchange Act and all other applicable Laws and rules or requirements or self
regulatory authorities, including the rules of the Nasdaq Stock Market,
(iii) to the Company’s Knowledge, the per share exercise price of each
Option was no less than the fair market value of a share of the Company’s Common
Stock on the applicable Grant Date and (iv) each such grant was properly
accounted for in all material respects in accordance with GAAP in the financial
statements (including the related notes) of the Company and disclosed in
the
Company SEC Documents in accordance with the Exchange Act and all other
applicable Laws. All Options may, by their terms, be treated in
accordance with Section 2.3.
(c) All
of the outstanding shares of capital stock and other Rights of each of the
Company’s Subsidiaries are owned beneficially or of record by the Company,
directly or indirectly, and all such shares and Rights have been validly
issued
and are fully paid and nonassessable and are owned by either the Company
or one
of its Subsidiaries free and clear of any
Encumbrances. Section 3.4 of the Company
Disclosure Letter lists each Subsidiary of the Company and its jurisdiction
of
organization.
(d) There
are no voting trusts or other agreements or understandings to which the Company
or any of its Subsidiaries is a party with respect to the voting of the capital
stock and other Rights of the Company or any of its Subsidiaries.
(e) As
of the date of this Agreement, except for its interests in its Subsidiaries,
the
Company does not own, directly or indirectly, any capital stock, membership
interest, partnership interest, joint venture interest or other equity interest
with a fair market value as of the date of this Agreement in excess of
$1,000,000 in any Person and neither the Company or its Subsidiaries has
any
obligation or commitment to acquire any such stock or other equity interest
or
make any investment in any Person.
(f) As
of December 19, 2007, the only outstanding Indebtedness of the types described
in clauses (a) and (b) of the definition of the term “Indebtedness” of, and
guarantees of such types of Indebtedness by, the Company or its Subsidiaries
is
(i) $10,000,000 in aggregate principal amount under the Variable Rate Industrial
Development Bonds issued by the Industrial Development Board of the City
of
Albertville, Alabama (the “IDB Bonds”) and (ii)
$75,125,000 in aggregate principal amount outstanding under the Credit and
Security Agreement dated as of April 21, 2005, among the Company, MTC
Technologies, Inc., the financial institutions named therein, National City
Bank, Branch Banking and Trust Company, Keybank National Association and
Fifth
Third Bank, as amended (the “Company Credit
Agreement”). The interest rate on the IDB Bonds is a
variable rate. All outstanding Indebtedness of the Company or its
Subsidiaries, including under the IDB Bonds and Company Credit Agreement,
may be
prepaid at the option of the Company without prepayment penalty or
premium.
Section
3.5 SEC
Reports and Financial Statements.
(a) The
Company has filed with or furnished to the SEC, and has made available to
Parent, true and complete copies of all forms, reports, schedules, statements,
certificates and other documents required to be filed or furnished by it
since
January 1, 2005, under the Exchange Act or the Securities Act of 1933, as
amended (the “Securities Act”) (collectively, the
“Company SEC Documents”). As of its
respective date, and, if amended, as of the date of the last such amendment,
each Company SEC Document, including any financial statements or schedules
included therein, did not contain any untrue statement of a material fact
or
omit to state a material fact required to be stated in such Company SEC Document
or necessary in order to make the statements in such Company SEC Document,
in
light of the circumstances under which they were made, not misleading and,
except to the extent that information contained in such Company SEC Document
has
been revised or superseded by a later filed or furnished, as applicable,
Company
SEC Document, as of the date of this Agreement, none of the Company SEC
Documents contains any untrue statement of a material fact or omits to state
any
material fact required to be stated therein or necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading. As of their respective dates, the Company SEC
Documents complied in all material respects with the applicable requirements
of
the Exchange Act, the Securities Act and the Xxxxxxxx-Xxxxx Act of 2002
(“SOX”), as the case may be, and the applicable rules
and regulations of the SEC under the Exchange Act, the Securities Act and
SOX,
as the case may be. None of the Company’s Subsidiaries is, or at any
time since January 1, 2005, has been, required to file any forms, reports
or
other documents with the SEC. Each of the consolidated financial
statements included in the Company SEC Documents (the “Financial
Statements”) (w) has been prepared from, and is in accordance
with, the books and records of the Company and its consolidated Subsidiaries,
(x) complies in all material respects with the applicable accounting
requirements and with the published rules and regulations of the SEC with
respect to such requirements, (y) has been prepared in accordance with the
United States generally accepted accounting principles
(“GAAP”), in all material respects, applied on a
consistent basis during the periods involved (except as may be indicated
in the
Financial Statements or in the notes to the Financial Statements and subject,
in
the case of unaudited statements, to normal year-end audit adjustments and
the
absence of footnote disclosure), and (z) fairly presents, in all material
respects, the consolidated financial position and the consolidated results
of
operations and cash flows (and changes in financial position, if any) of
the
Company and its consolidated Subsidiaries as of the date and for the periods
referred to in the Financial Statements.
(b) Neither
the Company nor any of the Company Subsidiaries is a party to, or has any
commitment to become a party to, any joint venture, off-balance sheet
partnership or any similar contract or arrangement (including any contract
relating to any transaction or relationship between or among the Company
and any
of its Subsidiaries, on the one hand, and any unconsolidated Affiliate,
including any structured finance, special purpose or limited purpose entity
or
person, on the other hand or any “off-balance sheet arrangements” (as defined in
Item 303(a) of Regulation S-K of the SEC)), where the result, purpose or
effect
of such arrangement is to avoid disclosure of any material transaction
involving, or material liabilities of, the Company or any of its Subsidiaries
in
the Company’s or such Subsidiary’s audited financial statements or other Company
SEC Documents.
(c) As
of the date of this Agreement, since December 31, 2005 neither the chief
executive officer nor the chief financial officer of the Company has become
aware of, and neither the Company’s auditors nor the Company Board has been
advised of (i) any fact, circumstance or change that is reasonably likely
to
result in a “significant deficiency” or a “material weakness” (each as defined
in Public Company Accounting Oversight Board Auditing Standard 2) in the
Company’s internal controls over financial reporting or (ii) any fraud, whether
or not material, that involves management or other employees who have a
significant role in the Company’s internal controls over financial
reporting.
Section
3.6 Absence of
Certain Changes. From January 1, 2007 through the date of this
Agreement, (a) the Company and its Subsidiaries have conducted their respective
businesses only in the ordinary course of business consistent with past
practice, (b) there has not been any event, circumstance, change, occurrence,
state of facts or effect (including the incurrence of any liabilities of
any
nature, whether or not accrued, contingent or otherwise) having, or that
would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and (c) neither the Company nor any of its Subsidiaries has
taken
any actions that if taken after the date of this Agreement would be prohibited
by Section 5.1.
Section
3.7 No
Undisclosed Material Liabilities. There are no liabilities or
obligations of the Company or any of its Subsidiaries, whether accrued,
absolute, determined or contingent, other than (i) liabilities or
obligations disclosed and provided for in the balance sheets included in
the
Financial Statements (or in the notes thereto) filed and publicly available
prior to the date of this Agreement and (ii) liabilities or obligations incurred
in the ordinary course of business consistent in the past practice since
December 31, 2006, that have not had and would not reasonably be expected
to
have, individually or in the aggregate, a Material Adverse Effect.
Section
3.8 Compliance
with Laws and Court Orders.
(a) The
Company and each of its Subsidiaries is and, since January 1, 2005, has been
in
compliance with, and, to the Knowledge of the Company, is not under
investigation with respect to and has not been threatened to be charged with
or
given notice of any violation of, any applicable Law or Order, except for
failures to comply or violations that have not had and would not reasonably
be
expected to have, individually or in the aggregate, a Material Adverse
Effect. The Company and its Subsidiaries hold all governmental
licenses, authorizations, permits, consents, approvals, variances, exemptions
and orders necessary for the operation of the businesses of the Company and
its
Subsidiaries, taken as a whole (the “Company
Permits”), except where such failure has not had and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. The Company and each of its Subsidiaries is in
compliance with the terms of the Company Permits, except for failures to
comply
or violations that have not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b) The
Company and its Subsidiaries are in compliance in all material respects with
all
statutory and regulatory requirements under the Arms Export Control Act,
the
International Traffic in Arms Regulations, the Export Administration Regulations
and associated executive orders, and the Laws implemented by the Office of
Foreign Assets Controls, United States Department of the Treasury (collectively,
and any successors or replacements thereof, the “Export Control
Laws”). To the Knowledge of the Company, neither the
Company nor any of its Subsidiaries has received any communication during
the
past 12 months that alleges that the Company or Subsidiary of the Company
is
not, or may not be, in compliance with, or has, or may have, any liability
under, the Export Control Laws.
(c) The
Company and its Subsidiaries are in compliance with all legal requirements
under
(i) the Foreign Corrupt Practices Act and the Organization for Economic
Cooperation and Development Convention Against Bribery of Foreign Public
Officials in International Business Transactions and legislation implementing
such convention and (ii) international anti-bribery conventions (other than
the convention described in clause (i)) and local anti corruption and
bribery Laws, in each case, in jurisdictions in which the Company and the
Company Subsidiaries are operating (collectively, the “Anti-Bribery
Laws”). To the Knowledge of the Company, neither the
Company nor any of its Subsidiaries has received any communication that alleges
that the Company, a Subsidiary of the Company or any of their directors,
officers, agents or employees is, or may be, in violation of, or has, or
may
have, any liability under, the Anti-Bribery Laws.
Section
3.9 Material
Contracts; Government Contracts.
(a) As
of the date hereof, neither of the Company nor any of its Subsidiaries is
a
party to or bound by any: (i) contract (other than this Agreement) that
would be required to be filed by the Company as a material contract pursuant
to
Item 601(b)(10) of Regulation S-K of the SEC; (ii) except for this
Agreement, contract or other commitment containing covenants of or binding
upon
the Company or any of its Subsidiaries (or which, following the consummation
of
the Merger, could bind Parent or any of its Affiliates) not to compete in
or
otherwise engage in any line of business or industry or in any geographical
area
or otherwise; (iii) contract which creates a partnership, joint venture,
strategic alliance, or similar arrangement that is material to the Company
and
its Subsidiaries, taken as a whole or which creates any teaming arrangements
with respect to the U.S. Air Force’s Flexible Acquisition and Sustainment Tool
Follow On Program (F2AST), (iv) indenture, credit agreement, loan
agreement, security agreement, guarantee, note, mortgage or other evidence
of
Indebtedness or agreement providing for Indebtedness in excess of $1,000,000;
(v) contract (other than this Agreement) for the sale of any of its assets
after the date hereof (other than sales of products in the ordinary course
of
business); (vi) collective bargaining agreement; (vii) contract that
contains a put, call, right of first refusal or similar right pursuant to
which
the Company or any of its Subsidiaries would be required to purchase or sell,
as
applicable, any equity interests of any Person; (viii) settlement agreement
or similar agreement with a Governmental Entity or Order to which the Company
or
any of its Subsidiaries is a party involving future performance by the Company
or any of its Subsidiaries; (ix) contract constituting a fixed price
deliverable contract that, together with related task orders, has a contract
value of at least $5,000,000; (x) contract or any related task orders that
subject to all reasonable assumptions (as of the date of this Agreement)
upon
which they are based and accounting for all anticipated related indirect
cost
(including selling general and administrative costs) could not reasonably
be
expected to be capable of performance in accordance with their terms without
a
material financial loss over the life of such contract or related task orders;
(xi) any contract granting to the Company or any of its Subsidiaries or the
other parties thereto any license or other right to use any material
Intellectual Property Rights (other than a license to use off-the-shelf
software) or any other material asset or right; (xii) any standstill
agreement binding on the Company or its Subsidiaries; (xiii) contract
providing for indemnification (including any obligations to advance funds
for
expenses) of the current or former directors or officers of the Company or
any
of its Subsidiaries; (xiv) contract with a third party for the resale or
distribution of any of the Company’s products or services; or (xv) other
contract (other than this Agreement, purchase orders for the purchase of
inventory or agreements between the Company and any of its wholly owned
Subsidiaries or between any of the Company’s wholly owned Subsidiaries) under
which the Company and its Subsidiaries are obligated to make payments in
the
future in excess of $1,000,000 per annum or $2,000,000 during the life of
the
contract, or receive payments in the future in excess of $2,000,000 per annum
or
$5,000,000 during the life of the applicable contract. Each such
contract described in clauses (i)-(xv) is referred to herein as a
“Material Contract.”
(b) Except
as has not had and would not reasonably be expected to have, individually
or in
the aggregate, a Material Adverse Effect, (i) neither the Company nor any
of its
Subsidiaries is (and, to the Knowledge of the Company, no other party is)
in
default under any Material Contract, Company Government Contract or Company
Government Subcontract (and no event has occurred with which notice or lapse
of
time or both would constitute a default or violation by the Company or a
Subsidiary of the Company), (ii) each of the Material Contracts, Company
Government Contracts and Company Government Subcontracts is in full force
and
effect, and is the valid, binding and enforceable obligation of the Company
and
its Subsidiaries, and to the Knowledge of the Company, of the other parties
thereto, except that (x) such enforcement may be subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar Laws,
now or
hereafter in effect, affecting creditors’ rights generally and (y) the remedy of
specific performance and injunctive and other forms of equitable relief may
be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought, (iii) the Company and its Subsidiaries
have performed all respective material obligations required to be performed
by
them to date under the Material Contracts, Company Government Contracts and
Company Government Subcontracts and are not (with or without the lapse of
time
or the giving of notice, or both) in breach thereunder and (iv) neither the
Company nor any of its Subsidiaries has received any notice of termination
with
respect to, and, to the Knowledge of the Company, no party has threatened
to
terminate any Material Contract. The Company has made available to
Parent true and complete copies of each Material Contract, Company Government
Contract and Company Government Subcontract, including all material amendments
thereto, except to the extent such disclosure would violate the confidentiality
provisions of such Material Contract.
(c) With
respect to each contract between the Company or any of its Subsidiaries,
on the
one hand, and any Governmental Entity, on the other hand, for which (i)
performance has not been or was not completed or (ii) final payment has not
been
or was not received, in either case, prior to the date that is three years
prior
to the date of this Agreement, and each outstanding bid, quotation or proposal
by the Company or any of its Subsidiaries (each, a
“Bid”) that if accepted or awarded could lead to a
contract between the Company or any of its Subsidiaries, on the one hand,
and
any Governmental Entity, on the other hand, including any facilities contract
for the use of government-owned facilities (each such contract or Bid, a
“Company Government Contract”), and each contract
between the Company or any of its Subsidiaries, on the one hand, and any
prime
contractor or upper-tier subcontractor, on the other hand, relating to a
contract between such Person and any Governmental Entity for which
(x) performance has not been or was not completed or (y) final payment has
not been or was not received, in either case, prior to the date that is three
years prior to the date of this Agreement, and each outstanding Bid that
if
accepted or awarded could lead to a contract between the Company or any of
its
Subsidiaries, on the one hand, and a prime contractor or upper-tier
subcontractor, on the other hand, relating to a contract between such Person
and
any Governmental Entity (each such contract or Bid, a “Company
Government Subcontract”):
(i) each
such Company Government Contract or Company Government Subcontract was to
the
Knowledge of the Company legally awarded, is binding on the parties thereto,
and
is in full force and effect, except any failure to be legally awarded or
in full
force and effect that, individually or in the aggregate, has not had, and
would
not reasonably be expected to have, a Material Adverse Effect; provided
that for purposes of this clause (i), the terms Company Government Contract
and Company Government Subcontract shall not include any Bids;
(ii) there
is no pending, and to the Knowledge of the Company no reasonable basis exists
to
give rise to a, (A) claim for fraud (as such concept is defined under the
state or federal Laws of the United States) in connection with any Company
Government Contract or Company Government Subcontract or other claim under
the
United States False Claims Act, or the United States Procurement Integrity
Act or (B) claim under the United States Truth in Negotiations
Act;
(iii) neither
the United States government nor any prime contractor, subcontractor or other
Person has notified the Company or any of its Subsidiaries in writing that
the
Company or any of its Subsidiaries has, or may have, breached or violated
in any
material respect any Law, certification, representation, clause, provision
or
requirement pertaining to such Company Government Contract or Company Government
Subcontract, and all facts set forth or acknowledged by any representations,
claims or certifications submitted by or on behalf of the Company or any
of its
Subsidiaries in connection with such Company Government Contract or Company
Government Subcontract were current, accurate and complete in all material
respects on the date of submission;
(iv) neither
the Company nor any of its Subsidiaries has received any written notice of
termination for convenience, written notice of termination for default, written
cure notice or written show cause notice pertaining to such Company Government
Contract or Company Government Subcontract, and the Company does not have
Knowledge of any facts that could reasonably be expected to provide a basis
for
any such notice except any notice that, individually or in the aggregate,
has
not had, and would not reasonably be expected to have a Material Adverse
Effect;
(v) no
cost in excess of $500,000 incurred by the Company or any of its Subsidiaries
pertaining to such Company Government Contract or Company Government Subcontract
has been questioned or challenged, is the specific subject of any audit or,
to
the Knowledge of the Company, investigation or has been disallowed by any
government or governmental agency;
(vi) no
payment due to the Company or any of its Subsidiaries pertaining to such
Company
Government Contract or Company Government Subcontract has been withheld or
set
off, and the Company and its Subsidiaries are entitled to all progress or
other
payments received to date with respect thereto, except as, individually or
in
the aggregate, has not had, and would not reasonably be expected to have
a
Material Adverse Effect; and
(vii) the
Company and its Subsidiaries have complied in all material respects with
all
requirements of such Company Government Contract or Company Government
Subcontract and any Law relating to the safeguarding of, and access to,
classified information (or the functional equivalents thereof).
(d) Neither
the Company nor any of its Subsidiaries, nor to the Knowledge of the Company,
any of the respective directors, officers, employees, consultants or agents
of
the Company or any of its Subsidiaries, is currently, or within the past
three
years has been (i) under any material administrative, civil or criminal
investigation, audit, inquiry, indictment or information request by any
Governmental Entity (and, in each case, to the Knowledge of the Company no
such
investigation, audit, inquiry, indictment or information request has been
threatened), in each case other than broad based routine audits or inquiries
in
the ordinary course or had a civil, criminal or other judgment rendered against
them or (ii) the subject of any audit, inquiry or investigation by the
Company or any of its Subsidiaries, in each case, with respect to any alleged
material act or omission arising under or relating to any Company Government
Contract or Company Government Subcontract and other than broad based routine
audits or inquiries in the ordinary course or (iii) debarred or suspended,
or
proposed for debarment or suspension, or received notice of actual or proposed
debarment or suspension (or the functional equivalents thereof), from
participation in the award of any contract with any Governmental
Entity. To the Knowledge of the Company, there exist no facts or
circumstances that would reasonably be expected to warrant the institution
of
suspension or debarment proceedings or a finding of nonresponsibility or
ineligibility with respect to the Company, any Subsidiary of the Company
or any
of their respective directors, officers or managers, in any such case, for
purposes of doing business with any Governmental Entity.
(e) Neither
the Company nor any of its Subsidiaries has received written notice of any
(i) outstanding material claims (including claims relating to bid or award
protest proceedings (or the functional equivalents thereof)) against the
Company
or any of its Subsidiaries, either by any Governmental Entity or by any prime
contractor, subcontractor, vendor or other Person, arising under or relating
to
any Company Government Contract or Company Government Subcontract, and
(ii) outstanding material claims or requests for equitable adjustment (or
the functional equivalents thereof) or disputes (including claims, requests
and
formal disputes relating to bid or award protest proceedings) between the
Company or any of its Subsidiaries, on the one hand, and the United States
government, on the other hand, under the United States Contract Disputes
Act, as
amended, or any other Law or between the Company or any of its Subsidiaries,
on
the one hand, and any prime contractor, subcontractor, vendor or other Person,
on the other hand, arising under or relating to any Company Government Contract
or Company Government Subcontract. To the Knowledge of the Company,
neither the Company nor any of its Subsidiaries has received any adverse
or
negative past performance evaluations or ratings in connection with any Company
Government Contract, Company Government Subcontract or other contract with
a
Governmental Entity within the past three years, except any evaluation or
rating
that has not had and would not reasonably be expected to have, individually
or
in the aggregate, a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries has (i) any interest in any pending or potential
claim against any Governmental Entity or (ii) any interest in any pending
claim against any prime contractor, subcontractor, vendor or other Person
arising under or relating to any Company Government Contract or Company
Government Subcontract, except for any claim in which the amount involved
is not
in excess of $1,000,000.
(f) During
the three years prior to the date of this Agreement there has not been any,
and
the Company does not have Knowledge of any facts that could reasonably be
expected to give rise to, the revocation of any security clearance of the
Company, any of its Subsidiaries or any director, officer, employee,
distributor, consultant or agent of the Company or any of its
Subsidiaries.
(g) As
of the date of this Agreement neither the Company nor any of its Subsidiaries
is
a party to or bound by any contract that contains any Organizational Conflict
of
Interest (as defined by Subpart 9.5 of the Federal Acquisition Regulations,
an “Organizational Conflict of Interest” ) provisions
or, to the Knowledge of the Company, presents or would reasonably be expected
to
present an Organizational Conflict of Interest issue for Parent.
Section
3.10 Information in Proxy
Statement. The proxy statement relating to the Special Meeting
(such proxy statement, as amended or supplemented from time to time, the
“Proxy Statement”) will not, at the date it is first
mailed to the Company’s stockholders, at the time of the Special Meeting or at
the time of any amendment or supplement thereof, contain any untrue statement
of
a material fact or omit to state any material fact required to be stated
in the
Proxy Statement or necessary in order to make the statements in the Proxy
Statement, in light of the circumstances under which they are made, not
misleading. The Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the rules
and
regulations thereunder. Notwithstanding anything to the contrary in
this Section 3.10, no representation or warranty is made
by the Company with respect to information contained or incorporated by
reference in the Proxy Statement supplied by or on behalf of Parent or Merger
Sub specifically for inclusion or incorporation by reference in the Proxy
Statement.
Section
3.11 Litigation.
(a) There
are no Actions pending or, to the Knowledge of the Company, threatened against
the Company or any of its Subsidiaries or any of their respective assets
or any
officer, director or employee of the Company in such capacity, which have
had or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Neither the Company nor any of its
Subsidiaries is a party or subject to or in default under any Order which
has
had or would reasonably be expected to have, individually or in the aggregate,
a
Material Adverse Effect.
Section
3.12 Labor
Matters. Neither the Company nor any of its Subsidiaries is a
party to any collective bargaining or other labor union
contracts. Except as has not had and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, the
Company has not received written notice during the past two years of the
intent
of any Governmental Entity responsible for the enforcement of labor, employment,
occupational health and safety or workplace safety and insurance/workers
compensation Laws to conduct an investigation of or affecting the Company
and,
to the Knowledge of the Company, no such investigation is in
progress. Except as has not had and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, there
is
no labor dispute, strike or work stoppage against the Company pending, or
to the
Knowledge of the Company, threatened.
Section
3.13 Employee Compensation
and Benefit Plans; ERISA.
(a) Section
3.13(a) of the Company Disclosure Letter sets forth a correct and
complete list of each material “employee benefit plan” (within the meaning of
Section 3(3) of ERISA but excluding any plan that is a “multiemployer plan,” as
defined in Section 3(37) of ERISA (a “Multiemployer
Plan”)) and each other material director and employee plan,
program, agreement or arrangement, vacation or sick pay policy, fringe benefit
plan, compensation, severance, or employment agreement, stock bonus, stock
purchase, stock option, restricted stock, stock appreciation right or other
equity-based plan, and bonus or other incentive compensation or salary
continuation plan or policy contributed to, sponsored or maintained by or
with
respect to which the Company or any Subsidiary of the Company has any liability
(contingent or otherwise) as of the date hereof for the benefit of any current,
former or retired employee, officer, consultant, independent contractor or
director of the Company or any Subsidiary of the Company, including the Stock
Plans (such plans, programs, policies, agreements and arrangements,
collectively, being the “Company Plans”).
(b) With
respect to each Company Plan, the Company has made available to Parent a
current, accurate and complete copy thereof (or, if a plan is not written,
a
written description thereof) and, to the extent applicable, (i) any related
trust or custodial agreement or other funding instrument, (ii) the most recent
determination letter, if any, received from the Internal Revenue Service
(the
“IRS”), (iii) any current summary plan description
or
employee handbook, (iv) for the most recent year (A) the Form 5500 and attached
schedules, (B) audited financial statements, and (C) actuarial valuation
reports, if any, and (v) copies of any correspondence from the IRS, SEC,
Pension Benefit Guaranty Corporation or Department of Labor (or any agency
thereof) relating to any material compliance issues with respect to any Company
Plan.
(c) Each
Company Plan has been established and is being administered in all material
respects in accordance with its terms and is in compliance with the applicable
provisions of ERISA, the Internal Revenue Code of 1986, as amended (the
“Code”), and other Law.
(d) Neither
the Company, nor any of its Subsidiaries, nor any trade or business, whether
or
not incorporated, that together with the Company or any of its Subsidiaries
would be deemed a “single employer” under Section 414 of the Code (an
“ERISA Affiliate”) currently has, and at no time in
the past has contributed to, or has had, an obligation to contribute to,
or
incurred any material liability in respect of a Multiemployer Plan, any
“multiple employer welfare arrangement” (as defined in Section 3(40) of
ERISA), or any single employer plan that has two or more contributing sponsors,
at least two of whom are not under common control, within the meaning of
Section 4063(a) of ERISA.
(e) No
material Actions (other than routine claims for benefits in the ordinary
course)
are pending or, to the Knowledge of the Company, threatened with respect
to any
Company Plan.
(f) Neither
any of the Company Plans, nor any other plan currently or previously maintained
by the Company, any of its Subsidiaries or any ERISA Affiliate, is subject
to
Title IV of ERISA.
(g) Each
Company Plan which is intended to be qualified under Section 401(a) of the
Code
is so qualified and has received a determination letter to that effect from
the
IRS and, to the Knowledge of the Company, no circumstances exist which would
reasonably be expected to materially adversely affect such qualification
or
exemption.
(h) Neither
the Company nor any of its Subsidiaries has any material obligations,
individually or in the aggregate, for retiree health and life benefits under
any
Company Plan or collective bargaining agreement, other than for benefits
required by applicable law or the cost of which is borne by the
participant.
(i) None
of the execution, delivery and performance by the Company of this Agreement,
and
the consummation by it of the Transactions, alone or in combination with
another
event (such as termination of employment), will (A) entitle any director,
officer, employee or consultant, or any former director, officer, employee
or
consultant, of the Company or any of its Subsidiaries to change of control,
severance or termination compensation or benefits, (B) accelerate the time
of payment or vesting, or trigger any payment or funding (through a grantor
trust or otherwise) of, or compensation or benefits under, or increase the
amount payable or trigger any other material obligation pursuant to, any
Company
Plan (or any grant or award thereunder) or (C) result in any breach or
violation of, or a default under, any Company Plan (or any grant or award
thereunder). No amount or benefit that could be received by any
“disqualified individual” (as defined in Treasury Regulation Section 1.280G 1)
with respect to the Company in connection with the Transactions (alone or
in
combination with any other event) would be characterized as an “excess parachute
payment” (as defined in Section 280G(b)(1) of the Code), and no such Person is
entitled to any additional payment or benefit in the event the excise tax
under
Section 4999 of the Code is imposed on such Person.
(j) To
the Knowledge of the Company, with respect to each Company Plan subject to
ERISA, there has not occurred any “prohibited transaction” (within the meaning
of Section 406 of ERISA or Section 4975 of the Code) that would reasonably
be
expected to subject the Company or any of its Subsidiaries or any of their
respective employees, or any trustee, administrator or other fiduciary of
any
trust created under any Company Plan, to any material tax or penalty on
prohibited transactions imposed by Section 4975 of the Code or the sanctions
imposed under Title I of ERISA or to any liability for breach of fiduciary
duty
under ERISA or any other applicable law.
(k) Each
Company Plan that is an “employee welfare benefit plan” within the meaning of
Section 3(1) of ERISA may be amended or terminated (including with respect
to
benefits provided to retirees and other former employees) without material
liability (other than liability for benefits then payable under such plan
without regard to such amendment or termination) to the Company or any of
its
Subsidiaries at any time after the Effective Time.
(l) To
the Knowledge of the Company, each Company Plan that is subject to
Section 409A of the Code has been operated in good faith compliance with
Section 409A of the Code in all material respects and no Person has a right
to
any gross up or indemnification from the Company with respect to any Company
Plan subject to Section 409A of the Code.
Section
3.14 Properties.
(a) Section
3.14(a) of the Company Disclosure Letter contains a true and
complete list of all material real property owned by the Company or any
Subsidiary of the Company (the “Owned Real
Property”).
(b) Section
3.14(b) of the Company Disclosure Letter contains a true and
complete list of all material real property leased or subleased (whether
as
tenant or subtenant) by the Company or any Subsidiary of the Company (including
the improvements thereon, the “Leased Real
Property”).
(c) Except
as has not had and would not reasonably be expected to have, individually
or in
the aggregate, a Material Adverse Effect, the Company or one of its Subsidiaries
has good and marketable fee simple title to all Owned Real Property and valid
leasehold estates in all Leased Real Property free and clear of all
Encumbrances, except Permitted Encumbrances. Except as has not had
and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, the Company or one of its Subsidiaries has exclusive
possession of each Leased Real Property and Owned Real Property, other than
any
use and occupancy rights granted to third-party owners, tenants or licensees
pursuant to agreements with respect to such real property entered in the
ordinary course of business.
(d) Except
as has not had and would not reasonably be expected to have, individually
or in
the aggregate, a Material Adverse Effect, (i) each lease for the Leased Real
Property is in full force and effect and is valid, binding and enforceable
in
accordance with its terms, except that (x) such enforcement may be subject
to
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
Laws, now or hereafter in effect, affecting creditors’ rights generally and (y)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court
before which any proceeding therefor may be brought, and (ii) there is no
default under any lease for the Leased Real Property either by the Company
or
its Subsidiaries or, to the Knowledge of the Company, by any other party
thereto, and no event has occurred that, with the lapse of time or the giving
of
notice or both, would constitute a default by the Company or its Subsidiaries
thereunder.
(e) Except
as have not had and would not reasonably be expected to have, individually
or in
the aggregate, a Material Adverse Effect, (i) there are no pending or, to
the
Knowledge of the Company, threatened condemnation or eminent domain proceedings
that affect any Owned Real Property or Leased Real Property, and (ii) the
Company has not received any written notice of the intention of any Governmental
Entity or other Person to take any Owned Real Property or Leased Real
Property.
Section
3.15 Intellectual
Property. Except as has not had and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
(i) the Company or one of its Subsidiaries owns all right, title, and interest
in, or has the right to use, pursuant to a license or otherwise, in each
case,
free and clear of all Encumbrances except Permitted Encumbrances, all
Intellectual Property Rights required to operate the Company’s business as
presently conducted (the “Company Intellectual
Property”), (ii) Section 3.15 of the
Company Disclosure Letter lists all registrations and applications for
Intellectual Property Rights owned by the Company or one of its Subsidiaries
and
material to the Company’s business, and (iii) as of the date hereof, (x) there
is no pending, and the Company has not received any written notice of any
actual
or threatened, Actions alleging a violation, misappropriation or infringement
of
the Intellectual Property Rights of any other Person by Company or its
Subsidiaries except for any of the foregoing that have since been resolved,
(y)
to the Knowledge of the Company, the operation of the business of the Company
as
currently conducted does not violate, misappropriate or infringe the
Intellectual Property Rights of any other Person, and (z) to the Knowledge
of
the Company, no other Person has violated, misappropriated or infringed any
Intellectual Property Rights owned by the Company or any of its
Subsidiaries.
Section
3.16 Environmental
Laws.
(a) Except
as would not reasonably be expected to have, individually or in the aggregate,
a
Material Adverse Effect, (i) the Company and its Subsidiaries comply and
have in
the past five years complied with all applicable Environmental Laws, and
possess
and comply, and have complied, with all applicable Environmental Permits
required under such Laws to operate the businesses of the Company and its
Subsidiaries as currently operated; (ii) there are no, and there have not
been
any, Materials of Environmental Concern at any property currently or, to
the
Knowledge of the Company, formerly owned or operated by the Company or its
Subsidiaries, under circumstances that have resulted in or are reasonably
likely
to result in liability of the Company or its Subsidiaries under any applicable
Environmental Laws; and (iii) the Company has not received any written
notification alleging that it is liable, or request for information, pursuant
to
any applicable Environmental Law, concerning any release, threatened release
of,
or exposure to, any Materials of Environmental Concern at any location except,
with respect to any such notification or request for information concerning
any
such release or threatened release, to the extent such matter has been fully
resolved with the appropriate Governmental Entity or Person. There
are no Actions arising under Environmental Laws pending or, to the Knowledge
of
the Company, threatened against the Company which would reasonably be expected
to have, individually or in the aggregate, a Material Adverse
Effect. The Company has made available to Parent all material
documentation in its possession or under its control regarding the Company,
its
Subsidiaries and related to Environmental Laws, Environmental Permits or
Materials of Environmental Concern.
(b) Notwithstanding
any other representations and warranties in this Agreement, the representations
and warranties in this Section 3.16 are the only
representations and warranties in this Agreement with respect to Environmental
Laws, Environmental Permits or Materials of Environmental Concern.
Section
3.17 Taxes.
(a) The
Company and each of its Subsidiaries has timely filed all material Tax Returns
that it was required to file and has timely paid all Taxes shown thereon
as due
and owing and all other Taxes required to be paid by it. All such Tax
Returns were correct and complete in all respects.
(b) The
most recent financial statements contained in the Company SEC Documents as
of
the date of this Agreement reflect an adequate reserve for all material Taxes
payable by the Company and its Subsidiaries.
(c) No
audit or other proceeding with respect to Taxes due from the Company or any
of
its Subsidiaries, or any Tax Return of the Company or any of its Subsidiaries,
is pending, threatened in writing, or, to the Knowledge of the Company, being
conducted by any Governmental Entity. Each assessed deficiency
resulting from any audit or examination relating to Taxes by any Governmental
Entity has been timely paid and there is no assessed deficiency, refund
litigation, proposed adjustment or matter in controversy with respect to
any
Taxes due and owing by the Company or any of its Subsidiaries.
(d) No
power of attorney with respect to any material Taxes has been executed or
filed
with any Governmental Entity by or on behalf of the Company or any of its
Subsidiaries.
(e) Neither
the Company nor any of its Subsidiaries has agreed to any extension or waiver
of
the statute of limitations applicable to any material Tax Return, or agreed
to
any extension of time with respect to a material Tax assessment or deficiency,
which period (after giving effect to such extension or waiver) has not yet
expired.
(f) Neither
the Company nor any of its Subsidiaries is a party to any material Tax
allocation or sharing agreement.
(g) Each
of the Company and its Subsidiaries has withheld and remitted all material
Taxes
required to have been withheld and remitted under applicable Law in connection
with any amounts paid or owing to any employee, independent contractor,
creditor, stockholder, member or other party.
(h) There
are no Encumbrances for unpaid Taxes on the assets of the Company or any
of its
Subsidiaries, except Encumbrances for current Taxes not yet due and
payable.
(i) Neither
the Company nor any of its Subsidiaries (i) has been a member of an affiliated
group of corporations within the meaning of Section 1504 of the Code (other
than
a group the common parent of which is the Company) or (ii) has any
liability for Taxes of any Person (other than the Company and its Subsidiaries)
under Treasury Regulation Section 1.1502-6 (or any similar provision of state,
local or foreign Law), as a transferee or successor, by contract or
otherwise.
(j) Neither
the Company nor any of its Subsidiaries has engaged in any “reportable
transaction” (as defined in Treasury Regulation § 1.6011-4(b)) or in any
“potentially abusive” tax shelter (as defined in Treasury Regulation
§ 301.6112-1(b)).
(k) Neither
the Company nor any of its Subsidiaries has constituted either a “distributing
corporation” or a “controlled corporation” (in each case within the meaning of
Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for
Tax-free treatment under Section 355 of the Code (i) in the two years
prior to the date of this Agreement or (ii) in a distribution which could
otherwise constitute part of a “plan” or “series of related transactions”
(within the meaning of Section 355(e) of the Code) in conjunction with the
Merger.
(l) Neither
the Company nor any of its Subsidiaries has been, at any time during the
period
specified in Section 897(c)(1)(A) of the Code, a United States real
property holding corporation within the meaning of Section 897(c)(2) of the
Code.
(m) No
unresolved claim has ever been made by any Governmental Entity in a jurisdiction
where the Company or any of its Subsidiaries does not file a Tax Return that
the
Company or any of its Subsidiaries is, or may be subject to, Tax by that
jurisdiction.
Section
3.18 Opinion of Financial
Advisor. The Company Board has received the opinions of Xxxxxxx
Xxxxx & Associates and Xxxxxx, Xxxxxxxx & Company, Incorporated, dated
the date of this Agreement, that, as of such date, the consideration to be
received in the Merger by the Company’s stockholders is fair to the Company’s
stockholders from a financial point of view, a copy of which opinion has
been
delivered to Parent and Merger Sub.
Section
3.19 Brokers or Finders;
Schedule of Fees and Expenses. Except for Xxxxxxx Xxxxx &
Associates and Xxxxxx, Xxxxxxxx & Company, Incorporated, no agent, broker,
investment banker, financial advisor or other firm or Person is or will be
entitled to any brokers’ or finder’s fee or any other commission or similar fee
or payment from the Company or any of its Subsidiaries in connection with
any of
the Transactions. As of the date of this Agreement, the estimated
third party fees and expenses incurred and to be incurred by the Company
in
connection with the Transactions are set forth in Section
3.19 of the Company Disclosure Letter.
Section
3.20 State Takeover
Statutes. No “moratorium,” “fair price,” “control share
acquisition” or other similar anti-takeover statute or regulation enacted under
state or federal Laws in the United States (with the exception of Section
203 of
the DGCL) applicable to the Company is applicable to the
Transactions. Assuming the accuracy of the representation and
warranty set forth in Section 4.4, the action of the
Company Board in approving this Agreement (and the Transactions, including
the
Stockholder Voting Agreement) is sufficient to render inapplicable to this
Agreement (and the Transactions, including the Stockholder Voting Agreement)
the
restrictions on “business combinations” (as defined in Section 203 of the DGCL)
as set forth in Section 203 of the DGCL.
Section
3.21 Transactions with
Related Persons. Section 3.21 of the
Company Disclosure Letter sets forth a true and complete list of all contracts
or other commitments in effect with Related Persons, true and complete copies
of
which have been made available to Parent prior to the date of this Agreement,
except with respect to any such oral contract or other commitment, in which
case
a true and complete description thereof is set forth in Section
3.21 of the Company Disclosure Letter. Since December
31, 2005, neither the Company nor any of its Subsidiaries has
(a) purchased, leased, licensed or otherwise acquired any property or
assets or obtained any services from, (b) sold, leased, licensed or
otherwise disposed of any property or assets or provided any services to,
(c) entered into or modified in any manner any contract or other commitment
with or otherwise engaged in any transactions with or (d) borrowed any
money from, or made or forgiven any loan or other advance to, any officer,
director or Affiliate of the Company or any of its Subsidiaries or any person
who has a family relationship (as defined in Item 401(d) of Regulation S-K)
with any officer, director or Affiliate of the Company or any of its
Subsidiaries (collectively, “Related
Persons”). Except for the ownership of Common Stock,
RSUs, and Options, no Related Person owns or has any other right (including
as
licensee) to or interest or investment in any assets or properties of the
Company and its Subsidiaries or used in or necessary to the conduct of the
business of the Company and its Subsidiaries.
Section
3.22 No Other
Representations or Warranties. Except for the representations and
warranties contained in this Article III, neither the
Company nor any other Person makes any other express or implied representation
or warranty on behalf of the Company or any of its Affiliates, including
with
respect to “Information” as defined in the Nondisclosure Agreement, dated
April 24, 2006, as amended, between the Company and Parent (the
“Confidentiality Agreement“).
REPRESENTATIONS
AND WARRANTIES OF PARENT AND MERGER SUB
Parent
and Merger Sub, jointly and
severally, represent and warrant to the Company as follows:
Section
4.1 Organization. Each
of Parent and Merger Sub is a corporation duly organized, validly existing
and
in good standing under the Laws of the jurisdiction of its incorporation
or
organization and has all requisite corporate or other power and authority
and
all necessary governmental approvals 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 or to have such power, authority
and governmental approvals has not had and would not reasonably be expected
to
have a material adverse effect on the ability of Parent and Merger Sub to
consummate the Merger and the other Transactions. Parent owns all of
the issued and outstanding capital stock of the Merger Sub.
Section
4.2 Authorization;
Validity of Agreement; Necessary Action. Each of Parent and
Merger Sub has full corporate power and authority to execute and deliver
this
Agreement and to consummate the Transactions. The execution, delivery
and performance by Parent and Merger Sub of this Agreement, and the consummation
by it of the Transactions have been duly and validly authorized by the
respective boards of directors of Parent and Merger Sub and by Parent as
the
sole stockholder of Merger Sub, and no other corporate action on the part
of
Parent or Merger Sub is necessary to authorize the execution, delivery and
performance by Parent and Merger Sub of this Agreement and the consummation
of
the Transactions. This Agreement has been duly executed and delivered
by Parent and Merger Sub and, assuming due and valid authorization, execution
and delivery of this Agreement by the Company, is a valid and binding obligation
of each of Parent and Merger Sub enforceable against each of them in accordance
with its terms, except that (a) such enforcement may be subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar Laws,
now or
hereafter in effect, affecting creditors’ rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief may
be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
Section
4.3 Consents
and Approvals; No Violations. Except, in the case of
clause (b) below, for filings, permits, authorizations, consents and
approvals as may be required under, and other applicable requirements of,
the
Exchange Act, the HSR Act, Exon-Xxxxxx and the filing of the Certificate
of
Merger, none of the execution, delivery or performance of this Agreement
by
Parent or Merger Sub, the consummation by Parent or Merger Sub of the
Transactions or compliance by Parent or Merger Sub with any of the provisions
of
this Agreement will (a) conflict with or result in any breach of any
provision of the respective certificate of incorporation, bylaws or other
similar organizational documents of Parent and Merger Sub, (b) require any
filing with, or permit, authorization, consent or approval of, any Governmental
Entity, (c) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default under, or give rise
to a
right of, or result in, termination, amendment, cancelation or acceleration
of
any obligation or to loss of a material benefit under, or result in the creation
of any Encumbrance upon any of the properties or assets of the Company or
any of
its Subsidiaries under, any of the terms, conditions or provisions of any
note,
bond, mortgage, indenture, lease, license, contract, permit, concession,
franchise, agreement or other instrument or obligation, whether written or
oral,
to which Parent or any of its Subsidiaries is a party or by which any of
them or
any of their properties or assets may be bound or (d) violate any Order or
Law applicable to Parent, any of its Subsidiaries (including Merger Sub)
or any
of their properties or assets, except in the case of clause (b), (c) or
(d) where failure to obtain such permits, authorizations, consents or
approvals or to make such filings, or where such violations, breaches or
defaults have not had and would not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the ability of Parent and
Merger Sub to consummate the Merger and the other Transactions.
Section
4.4 Ownership
of Common Stock. Neither Parent nor any of its Subsidiaries
(including Merger Sub) is, and at no time during the last three years has
Parent
or any of its Subsidiaries (including Merger Sub) been, an “interested
stockholder” of the Company as defined in Section 203 of the
DGCL. Neither Parent nor any of its Subsidiaries (including Merger
Sub) owns (beneficially or of record), or is a party to any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
or
disposing of, any shares of capital stock of the Company (other than as
contemplated by this Agreement) in excess of 5% of the Company’s outstanding
Common Stock.
Section
4.5 Information
in Proxy Statement. None of the information supplied or to be
supplied by or on behalf of Parent or Merger Sub specifically for inclusion
or
incorporation by reference in the Proxy Statement will, at the date it is
first
mailed to the Company’s stockholders, at the time of the Special Meeting or at
the time of any amendment or supplement thereof, contain any untrue statement
of
a material fact or omit to state any material fact required to be stated
in the
Proxy Statement or necessary in order to make the statements in the Proxy
Statement, in light of the circumstances under which they are made, not
misleading.
Section
4.6 Financing. As
of the date of this Agreement, Parent and Merger Sub have access to, and
at the
Closing will have, sufficient funds available to finance and consummate the
Transactions.
Section
4.7 No Prior
Activities. Except for obligations or liabilities incurred in
connection with its incorporation or organization or the negotiation and
consummation of this Agreement and the Transactions (including any financing),
Merger Sub has not incurred any obligations or liabilities, and has not engaged
in any business or activities of any type or kind whatsoever or entered into
any
agreements or arrangements with any Person or entity.
Section
4.8 Litigation. There
are no Actions pending or, to the Knowledge of Parent, threatened against
Parent
or Merger Sub or, to the Knowledge of Parent, any officer, director or employee
of Parent or Merger Sub in such capacity, which would, individually or in
the
aggregate, prevent or materially delay Parent or Merger Sub from performing
its
obligations under this Agreement. Neither Parent nor Merger Sub is a
party or subject to or in default under any Order which would prevent or
materially delay Parent or Merger Sub from performing its obligations under
this
Agreement.
Section
4.9 Disclaimer
of Warranties. Parent and Merger Sub acknowledge that neither the
Company nor any Person has made any express or implied representation or
warranty on behalf of the Company or any of its Affiliates as to the accuracy
or
completeness of any information regarding the Company provided to Parent
and
Merger Sub, except as expressly set forth in Article
III.
COVENANTS
Section
5.1 (a) Interim
Operations of the Company. Except (A) as expressly
contemplated by this Agreement, (B) as set forth on Section
5.1 of the Company Disclosure Letter, (C) as required by Law,
or (D) as consented to in writing by Parent after the date of this
Agreement and prior to the Effective Time, which consent shall not be
unreasonably withheld or delayed, the Company agrees that:
(i) the
Company and its Subsidiaries will conduct business only in the ordinary course
of business consistent with past practice and, to the extent consistent
therewith, each of the Company and its Subsidiaries shall use its reasonable
best efforts to preserve its business organization intact and maintain its
existing relations with customers, suppliers, employees, creditors and business
partners, Governmental Entities (including maintaining all Company
Permits);
(ii) the
Company will not amend its Amended and Restated Certificate of Incorporation
or
Amended and Restated Bylaws and the Company’s Subsidiaries will not amend their
certificate of incorporation, bylaws or other comparable charter or
organizational documents;
(iii) neither
the Company nor any of its Subsidiaries will (A) declare, set aside or pay
any
dividend or other distribution, whether payable in cash, stock or other
property, with respect to its capital stock; (B) issue, sell, transfer, pledge,
dispose of or encumber or agree to issue, sell, transfer, pledge, dispose
of or
encumber any additional shares of capital stock or other Rights of the Company
or any of its Subsidiaries (including treasury stock), other than in respect
of
the shares of the Company’s capital stock reserved for issuance on the date of
this Agreement and issued pursuant to the exercise of Options outstanding
on the
date of this Agreement, (C) split, combine or reclassify the Shares or any
other
outstanding capital stock of the Company or any of the Subsidiaries of the
Company or issue or authorize the issuance of any other securities in respect
of, in lieu of or in substitution therefor or (D) redeem, purchase or
otherwise acquire, directly or indirectly, any capital stock or other Rights
of
the Company or any of its Subsidiaries;
(iv) except
as required by applicable Law or under the terms of any Company Plan as of
the
date of this Agreement, the Company will not and will not permit its
Subsidiaries to (A) make any changes in the compensation payable or to
become payable to any of its officers, directors, employees, agents, consultants
(other than general increases in wages to employees who are not officers,
directors or Affiliates of the Company in the ordinary course of business
and
consistent with past practice) or other Persons providing management services,
(B) enter into or amend any employment, consulting, severance or
termination agreement or any Company Plan, except that the Company and its
Subsidiaries may in the ordinary course consistent with past practice (I)
enter
into an agreement providing for annual compensation less than $100,000 or
(II)
enter into any consulting agreement providing for compensation less than
$100,000 on an annualized basis which is entered into with a consultant that
is
a United States citizen and solely in connection with sales or other business
in
the United States, or (C) make any loans (other than travel and payroll
advances to non-officer employees in the ordinary course of business consistent
with past practice) to any of its officers, directors, employees, Affiliates,
agents or consultants or make any change in its existing borrowing or lending
arrangements for or on behalf of any of such Persons pursuant to a Company
Plan
or otherwise;
(v) except
as required by applicable law or under the terms of any Company Plan as of
the
date of this Agreement, the Company will not and will not permit its
Subsidiaries to (A) pay or make any accrual or arrangement for payment of
any
pension, retirement allowance or other employee benefit pursuant to any existing
plan, agreement or arrangement to any officer, director, employee or Affiliate,
(B) pay or agree to pay or make any accrual or arrangement for payment to
any
officers, directors, employees or Affiliates of the Company of any amount
relating to unused vacation days (other than in the ordinary course consistent
with past practice), or (C) adopt or pay, grant, issue, accelerate or accrue
salary or other payments or benefits pursuant to any Company Plan, agreement
or
arrangement, or any employment or consulting agreement with or for the benefit
of any director, officer, employee, agent or consultant, whether past or
present;
(vi) neither
the Company nor any of its Subsidiaries will (A) incur or assume
(1) any long-term Indebtedness, or (2) any short-term Indebtedness
except in the ordinary course of business consistent with past practice,
in
amounts consistent with past practice, (B) assume, guarantee, endorse or
otherwise become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other Person, or enter into any
arrangement having the economic effect of any of the foregoing, except in
the
ordinary course of business consistent with past practice with respect to
Indebtedness of wholly-owned Subsidiaries permitted to be incurred or assumed
pursuant to clause (A) above in amounts consistent with past practice,
(C) make any loans, advances or capital contributions to, or investments
in, any other Person except from the Company or any direct or indirect
wholly-owned Subsidiary of the Company (on the one hand) to the Company or
any
direct or indirect wholly-owned subsidiary (on the other hand) or (D) enter
into any material commitment or transaction (including any borrowing, capital
expenditure or purchase, sale or lease of assets or real estate), except
in the
ordinary course of business consistent with past practice;
(vii) neither
the Company nor any of its Subsidiaries will make or authorize any capital
expenditure, other than capital expenditures contemplated by (and not in
advance
of the applicable date or dates contemplated therefor in) the Company’s existing
2008 capital budget, a copy of which has been included in the Company Disclosure
Letter;
(viii)
neither the Company nor any of its Subsidiaries will (A) pay, discharge,
waive, settle or satisfy, or make any payment for the waiver thereof, any
rights, claims, liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge,
waiver,
settlement or satisfaction, in the ordinary course of business consistent
with
past practice, of claims, liabilities or obligations reflected or reserved
against in, or contemplated by, the Financial Statements (or the notes to
the
Financial Statements) (for amounts not materially in excess of such reserves)
or
of claims, liabilities or obligations incurred since the date of the Financial
Statements in the ordinary course of business consistent with past practice
or
(B) waive any claims of substantial value;
(ix) neither
the Company nor any of its Subsidiaries will (A) change any of the accounting
methods, principles or practices used by it unless required by a change in
GAAP
or Law, (B) settle any material Tax claim or assessment, (C) consent to any
material Tax claim or assessment or any waiver of the statute of limitations
for
any such claim or assessment or (D) make or change any material Tax
election;
(x) neither
the Company nor any of its Subsidiaries will (A) adopt a plan of complete
or
partial liquidation, dissolution, merger, consolidation, business combination,
restructuring, recapitalization or other reorganization (other than this
Agreement), (B) acquire by merging or consolidating with, or by purchasing
a
substantial equity interest in or portion of the assets of, or by any other
manner, any business or any corporation, partnership, joint venture, association
or other business organization or division thereof or (C) acquire, transfer,
lease, license, sell, mortgage, pledge, dispose of or encumber any material
assets, other than, in the case of this clause (C), acquisitions of raw
materials and inventory and sales of inventory, in each case in the ordinary
course of business consistent with past practice;
(xi) neither
the Company nor any of its Subsidiaries will waive the benefits of, or agree
to
modify in any manner, or consent to any matter with respect to which its
consent
is required under, any material confidentiality agreement or any standstill
or
similar agreement to which the Company or any of its Subsidiaries is a
party;
(xii) neither
the Company nor any of its Subsidiaries will (A) enter into a contract, or
make
a Bid that if accepted or awarded would lead to a contract, or accept a task
order, which if entered into would (1) be a contract of the type described
in
Section 3.9(a)(ii), (2) include an Organizational
Conflict of Interest provision or that would or would reasonably be expected
to
create an Organizational Conflict of Interest issue for Parent, (3) otherwise
be
a Material Contract, other than (x) teaming agreements which include an
exclusivity or similar provision, Bids for fixed price development contracts,
Bids for fixed price production contracts with a contract value of at least
$5,000,000, in each case entered into or made following consultation with
Parent, which shall not be unduly delayed by Parent and (y) teaming agreements
that do not include an exclusivity or similar provision, or (4) be a contract
with a Related Person or amend, revise, or renew or terminate any such contract,
Bid, Material Contract or contract with a Related Person or (B) enter into
any
contract under which the consummation of the Merger and the other Transactions
or compliance by the Company with the provisions of this Agreement could
reasonably be expected to conflict with, or result in a violation or breach
of,
or default (with or without notice or lapse of time, or both) under, or give
rise to a right of, or result in, termination, cancelation or acceleration
of
any obligation or to a loss of a material benefit under, or result in the
creation of any Encumbrance upon any of the properties or assets of the Company
or any of its Subsidiaries;
(xiii) neither
the Company nor any of its Subsidiaries will select any “Fixed Rate Period” for
any of the IDB Bonds;
(xiv) neither
the Company nor any of its Subsidiaries will expand the nature or scope of
its
business outside of the United States, including with respect to countries,
sales practices, distributors, agents and customers;
(xv) neither
the Company nor any of its Subsidiaries will revalue any assets that are
material to the Company and its Subsidiaries, taken as a whole, except as
required by GAAP; and
(xvi) neither
the Company nor any of its Subsidiaries will enter into an agreement, contract,
commitment or arrangement to do any of the foregoing, or to authorize,
recommend, propose or announce an intention to do any of the
foregoing.
(b) Except
as set forth in Section 5.1(b) of the Company Disclosure
Letter, the Company shall cause all contracts or other agreements between
the
Company and any of its Subsidiaries, on the one hand, and Xxxxxx X. Xxxx
and his
Affiliates (including all stockholders of the Company that are party to the
Stockholder Voting Agreement), or any of their Related Persons, on the other
hand, (i) that are listed in Section 3.21 of the Company
Disclosure Letter to be terminated (for the avoidance of doubt, including
provisions that purport to survive termination) immediately prior to the
Closing
without the payment of any fees, expenses or other amounts thereunder and
(ii)
that would be required to be included in Section 3.21 of
the Company Disclosure Letter but were not listed therein to be terminated
(for
the avoidance of doubt, including provisions that purport to survive
termination), at Parent's option, immediately prior to the Closing without
the
payment of any fees, expenses or other amounts thereunder. Except as
set forth in Section 5.1(b) of the Company Disclosure
Letter, the Company shall not make any payments or commit or agree to make
any
payments under any contract or agreement described in (i) and (ii) of the
forgoing sentence between the date of this Agreement and the
Closing.
(c) Certain
Tax Matters.
(i) During
the period from the date of this Agreement to the Effective Time, the Company
shall, and shall cause each of its Subsidiaries to promptly notify Parent
of any
audit or other Action that becomes pending against or with respect to the
Company or any of its Subsidiaries in respect of any Tax.
(ii) The
Company shall deliver to Parent at or prior to the Closing a certificate,
in
form and substance reasonably satisfactory to Parent, duly executed and
acknowledged, in accordance with Treasury Regulation Section 1.1445-2 certifying
that the payment of the Merger Consideration and any payments made in respect
of
the Dissenting Shares pursuant to the terms of this Agreement are exempt
from
withholding pursuant to the Foreign Investment in Real Property Tax Xxx
0000.
(iii) To
the extent Section 6043A of the Code applies to the transactions
contemplated by this Agreement, the parties to this Agreement shall cooperate
with each other and provide each other with all information as is reasonably
necessary for the parties to this Agreement to satisfy the reporting obligations
under Section 6043A of the Code.
(d) The
Company and its Subsidiaries shall promptly advise Parent if, after the date
of
this Agreement, the chief executive officer or chief financial officer of
the
Company becomes aware of, or the Company’s auditors or the Company’s Board are
advised of, any of the matters described in clauses (i) and (ii) of Section
3.5(c).
Section
5.2 No
Solicitation by the Company.
(a) From
and after the date of this Agreement, the Company shall not, nor shall it
authorize or permit any of its Subsidiaries, nor shall it authorize or permit
any officer, director or employee of or any investment banker, attorney,
accountant or other advisor, agent or representative (collectively, the
“Representatives”) of, the Company or any of its
Subsidiaries to, directly or indirectly (i) solicit, initiate, facilitate
or encourage the submission of any Company Takeover Proposal, (ii) enter
into
any agreement with respect to any Company Takeover Proposal (other than a
confidentiality agreement in accordance with this Section
5.2 ) or resolve, agree or propose to take any
such actions, or (iii) provide any non-public information regarding the Company
to any third party or engage in any negotiations or discussions in connection
with, or otherwise cooperate in any way with, any Company Takeover Proposal;
provided, however, that prior to the receipt of the Stockholder
Approval, the Company and the Representatives of the Company may, in response
to
a Company Takeover Proposal that was not solicited by the Company or its
Subsidiaries or any of its or their Representatives and did not otherwise
result
from a breach of this Section 5.2, if the Company Board
determines in good faith, after consultation with outside counsel and its
financial advisor, that the following actions would reasonably be expected
to
result in the Company Takeover Proposal becoming a Company Superior Proposal,
provide any non-public information regarding the Company to the Person making
such Company Takeover Proposal pursuant to a customary confidentiality agreement
substantially similar to, and not less restrictive of such Person than, the
Confidentiality Agreement (provided that such confidentiality agreement
and any related agreement shall not contain any provision calling for a right
to
negotiate exclusively with the Person making such Company Takeover Proposal
or
having the effect of prohibiting the Company from satisfying any of its
obligations under this Agreement, provided, further, that all
information provided to a third party under this Section
5.2 is provided or made available on a prior or substantially
concurrent basis to Parent and Merger Sub if such information has not previously
been provided to Parent or Merger Sub) or engage in any negotiations or
discussions with such Person regarding any Company Takeover
Proposal. The Company shall, and shall cause each of its Subsidiaries
to immediately cease and cause to be terminated any existing activities,
discussions or negotiations by the Company, any Subsidiary of the Company
or any
Representative of the Company or its Subsidiaries with any parties (other
than
Parent and Merger Sub) conducted heretofore with respect to any of the foregoing
and request from each Person that has executed a confidentiality agreement
with
the Company the prompt return or destruction of all confidential information
previously furnished to such Person or its Representatives and terminate
access
by each such Person and its Representatives to any online or other data rooms
containing any information in respect of the Company or any of its
Subsidiaries. It is understood that any violation of the restrictions
set forth in this Section 5.2(a) by any
Representative of the Company or any of its Subsidiaries shall be deemed
to be a
breach of this Section 5.2(a) by the
Company. Neither the Company nor the Company Board shall approve, or
take any action to render Section 203 of the DGCL or any similar takeover
statute inapplicable to, any Company Takeover Proposal other than in connection
with entering into a definitive agreement with respect to a Company Superior
Proposal to the extent permitted under Section 5.2(b)).
(b) Neither
the Company Board nor any committee thereof shall (i) withdraw or modify
in a
manner adverse to Parent or Merger Sub, the Company Recommendation or its
approval of this Agreement or any of the Transactions, (ii) recommend that
the Company’s stockholders reject adoption of this Agreement,
(iii) determine that this Agreement and the Transactions are no longer fair
to and in the best interests of the Company’s stockholders or declare that this
Agreement is no longer advisable, (iv) approve or recommend any Company
Takeover Proposal or (v) resolve, agree or publicly propose to take any
such actions. Notwithstanding the foregoing, at any time after the
date hereof and prior to the receipt of the Stockholder Approval, (x) in
response to a Company Superior Proposal which was not solicited by the Company
or its Subsidiaries or Affiliates or any of its or their Representatives
and did
not otherwise result from a breach of this Section 5.2,
the Company Board may terminate this Agreement pursuant to Section
8.1(c) in order to cause the Company to concurrently enter into a
definitive agreement with respect to a Company Superior Proposal and
(y) the Company Board may withdraw or modify in a manner adverse to Parent
the Company Recommendation, in each case, only (A) if and to the extent that
the
Company Board determines in good faith, after consultation with outside counsel
and its financial advisor, that failing to take any such action would result
in
a breach of the fiduciary duties of the Company Board and (B) at a time that
is
after the fourth Business Day following the Company’s delivery to Parent of
written notice advising Parent that the Company Board intends to take such
action, specifying, in the case of clause (x), the terms and conditions of
such Company Superior Proposal, including the identity of the Person making
the
Company Superior Proposal and, in the case of clause (y), reasonable
details regarding the cause for, and nature of, the withdrawal or modification
of the Company Recommendation; provided that (I) any amendment to
the financial terms or any other material term of any applicable Company
Takeover Proposal or Company Superior Proposal shall require a new written
notice by the Company and a new three Business Day period, and no such
termination of this Agreement by the Company or withdrawal or modification
of
the Company Recommendation may be made during any such three Business Day
period, (II) the Company shall, and shall cause its financial and legal advisors
to, during such four or three Business Day period described above, negotiate
with Parent and Merger Sub in good faith, to the extent Parent and Merger
Sub
desire to negotiate, to make such changes in the terms and conditions of
this
Agreement so that such Company Takeover Proposal ceases to constitute a Company
Superior Proposal or that the cause for such withdrawal or modification of
the
Company Recommendation ceases to exist, (III) the Company Board shall take
into account any changes to the financial and other terms of this Agreement
proposed by Parent in response to any such written notice by the Company
or
otherwise and (IV) the requirements for terminating this Agreement and
withdrawing or modifying the Company Recommendation are still satisfied at
the
time this Agreement is terminated or at the time of such withdrawal or
modification of the Company Recommendation.
(c) The
Company shall promptly (but in no case later than 24 hours after receipt)
advise
Parent orally and in writing of the receipt of any Company Takeover Proposal
and
of the price and other material terms and conditions of any such Company
Takeover Proposal (including the identity of the Person making such Company
Takeover Proposal) and of any changes or supplements thereto. The
Company (i) promptly (but in no case later than 24 hours thereafter) shall
advise Parent orally and in writing of the commencement of any discussions
with
any third party or its representatives regarding a Company Takeover Proposal
by
such third party and (ii) will keep Parent fully apprised on a current basis
of
any material related developments, discussions, and negotiations and shall
provide to Parent promptly (but in no case later than 24 hours) after receipt
or
delivery thereof with copies of such Company Takeover Proposal (including
any
amendments or supplements thereto) and all such other information provided
in
writing to the Company by the party making such Company Takeover
Proposal.
(d) Nothing
contained in this Section 5.2 or in Section
6.6 shall prohibit the Company or the Company Board from taking
and
disclosing to its stockholders a position contemplated by Rule 14e-2(a) or
Rule
14d-9 promulgated under the Exchange Act or from making any other disclosure
to
the Company’s stockholders if, in the Company Board’s determination in good
faith after consultation with outside counsel, the failure so to disclose
would
be inconsistent with its obligations under applicable Law provided that the
Company and the Company Board may not withdraw or modify in a manner adverse
to
Parent the Company Recommendation, except to the extent expressly permitted
by
the exceptions described in
Section 5.2(b).
ADDITIONAL
AGREEMENTS
Section
6.1 Preparation
of Proxy Statement.
(a) As
soon as reasonably practicable after the date of this Agreement, the Company
shall file with the SEC the Proxy Statement and cause the Proxy Statement
to be
disseminated to the holders of the Shares, as and to the extent required
and
permitted by applicable federal securities Laws. Subject to Section
5.2, the Proxy Statement will contain the Company Recommendation.
(b) Parent
and Merger Sub will provide for inclusion or incorporation by reference in
the
Proxy Statement of all required information relating to Parent or its
Affiliates. Parent and its counsel shall be given the opportunity to
review and comment on the Proxy Statement before it is filed with the
SEC. In addition, the Company will provide Parent and its counsel, in
writing, any comments or other communications, 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 Proxy Statement promptly after the receipt of such comments
or other communications, and the opportunity to review and comment on such
comments. The Company will respond promptly to any such comments from
the SEC or its staff. The Company shall not file or mail the Proxy
Statement or respond to comments of the SEC prior to receiving Parent’s
approval, which approval shall not be unreasonably withheld or
delayed.
(c) Each
of the Company, Parent and Merger Sub agrees to promptly (i) correct any
information provided by it specifically for use in the Proxy Statement if
and to
the extent that such information shall have become false or misleading in
any
material respect and (ii) supplement the information provided by it specifically
for use in the Proxy Statement to include any information that shall become
necessary in order to make the statements in the Proxy Statement, in light
of
the circumstances under which they were made, not misleading. The
Company further agrees to cause the Proxy Statement as so corrected or
supplemented promptly to be filed with the SEC and to be disseminated to
the
holders of the Shares, in each case as and to the extent required by applicable
federal securities Laws.
Section
6.2 Stockholders
Meeting.
(a) The
Company shall, as soon as practicable after the date of this Agreement, in
accordance with applicable Law, duly call, give notice of, convene and hold
a
special meeting of the Company’s stockholders (the “Special
Meeting”) for the purpose of considering and taking action upon
the adoption of this Agreement. Without limiting the generality of
the foregoing, the Company’s obligations pursuant to this Section
6.2 shall not be affected by (i) the commencement, public proposal,
public disclosure or communication to the Company of any Company Takeover
Proposal or (ii) any withdrawal or modification in a manner adverse to Parent
of
the Company Recommendation.
(b) Parent
shall vote, or cause to be voted, all of the Shares then owned by it, Merger
Sub
or any of its other Subsidiaries and Affiliates (other than any Shares that
may
be owned, for investment purposes only, by a pension or other plan for the
benefit of the employees of Parent, its ultimate parent company, or their
respective Affiliates) in favor of the approval of the Merger and the adoption
of this Agreement.
Section
6.3 Reasonable
Best Efforts.
(a) Prior
to the Closing, Parent, Merger Sub and the Company shall use their respective
reasonable best efforts to (x) take, or cause to be taken, actions, and
(y) do, or cause to be done, things necessary, proper or advisable under
any applicable Laws to consummate and make effective the Transactions as
promptly as practicable, including using reasonable best efforts in (i) the
preparation and filing of all forms, registrations and notices required to
be
filed to consummate the Transactions, (ii) obtaining (and cooperating with
each
other in obtaining) any consent, authorization, Order or approval of, or
any
exemption by, any third party, including any Governmental Entity (which actions
shall include furnishing all information required under the HSR Act and in
connection with approvals of or filings with any other Governmental Entity)
required to be obtained or made by Parent, Merger Sub, the Company or any
of
their respective Subsidiaries in connection with the Transactions and (iii)
the
execution and delivery of any additional instruments necessary to consummate
the
Transactions and to fully carry out the purposes of this Agreement (it being
understood that nothing in this Section 6.3 shall
require Parent to (A) consent to any action or omission that would be
inconsistent with Section 5.1 or Section
6.3(g) or (B) agree to amend or waive any provision of this
Agreement). Additionally, each of Parent and the Company shall use
reasonable best efforts not to take any action after the date of this Agreement
that would reasonably be expected to materially delay the obtaining of, or
result in not obtaining, any permission, approval or consent from any
Governmental Entity necessary to be obtained prior to Closing.
(b) Prior
to the Closing, each party shall promptly consult with the other parties
to this
Agreement with respect to, provide any necessary information with respect
to
(and, in the case of correspondence, provide the other parties (or their
counsel) copies of), all filings made by such party with any Governmental
Entity
or any other information supplied by such party to, or correspondence with,
a
Governmental Entity in connection with this Agreement and the
Transactions. Each party to this Agreement shall promptly inform the
other parties to this Agreement of any communication from any Governmental
Entity regarding any of the Transactions. If any party to this
Agreement or any Affiliate of such parties receives a request for additional
information or documentary material from any Governmental Entity with respect
to
the Transactions, then such party will use reasonable best efforts to make,
or
cause to be made, promptly and after consultation with the other parties
to this
Agreement, an appropriate response in compliance with such
request. To the extent that transfers of any permits issued by any
Governmental Entity are required as a result of the execution of this Agreement
or the consummation of the Transactions, the Company shall use its reasonable
best efforts to effect such transfers.
(c) The
Company and Parent shall use reasonable best efforts to file, as promptly
as
practicable, but in any event no later than fifteen Business Days after the
date
of this Agreement, notifications under the HSR Act and shall use reasonable
best
efforts to respond, as promptly as practicable, to any inquiries received
from
the Federal Trade Commission and the Antitrust Division of the Department
of
Justice for additional information or documentation and to respond, as promptly
as practicable, to all inquiries and requests received from any state Attorney
General or other Governmental Entity in connection with antitrust
matters.
(d) Each
of Parent and the Company shall use reasonable best efforts to resolve such
objections, if any, as may be asserted by any Governmental Entity with respect
to the Transactions under the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx
Act, as amended, the Federal Trade Commission Act, as amended, and any other
United States federal or state or foreign or supranational Laws that are
designed to prohibit, restrict or regulate actions having the purpose or
effect
of monopolization or restraint of trade (collectively, “Antitrust
Laws”). Notwithstanding the foregoing or any other
provision of this Agreement, nothing in this
Section 6.3(d) shall limit the right of any party
hereto to terminate this Agreement pursuant to
Section 8.1, so long as such party hereto has, up
to the time of termination, complied in all material respects with its
obligations under this Section 6.3(d). Each
of Parent and the Company shall use reasonable best efforts to take such
action
as may be required to cause the expiration of the notice periods under the
HSR
Act or other Antitrust Laws with respect to the Transactions as promptly
as
possible after the execution of this Agreement.
(e) The
parties shall use their respective reasonable best efforts to avoid or eliminate
each and every impediment under any Antitrust Laws so as to enable the Closing
to occur as promptly as practicable (and in any event no later than the Outside
Date), including to avoid Parent or its Subsidiaries from being disqualified
or
otherwise precluded from providing certain goods or services to the United
States Department of Defense as a result of an Organizational Conflict of
Interest issue. Those efforts shall include using reasonable best
efforts, subject to Section 6.3(g), in (i) proposing,
negotiating, committing to and effecting, by consent decree, hold separate
order, or otherwise, the sale, divestiture or disposition of businesses,
product
lines, assets or operations of the Company and its Subsidiaries, unless such
sale, divestiture or disposition would reasonably be expected to have a Material
Adverse Effect, (ii) otherwise taking or committing to take actions that
after the Closing Date would limit Parent’s or its Subsidiaries’ ability to
retain one or more of the businesses, product lines, assets or operations
of the
Company and its Subsidiaries, unless such action would reasonably be expected
to
have a Material Adverse Effect and (iii) cooperating to satisfy Section 7.2(f),
including agreeing to the divestiture or other transfer or disposition of
contracts listed on Section 6.3(e) of the Company Disclosure Letter (the
“Specified Contracts”), in each case in connection
with using reasonable best efforts to avoid the entry of, or to effect the
dissolution of, any preliminary or permanent injunction, in any Action under
any
Antitrust Laws, which would otherwise have the effect of preventing the Closing
or to avoid such disqualification or preclusion; provided,
however, that any such action shall be conditioned upon the consummation
of the Merger. Notwithstanding the foregoing, if on or after March 1,
2008, the Company determines in good faith that it is necessary or advisable
to
divest or otherwise transfer or dispose of the Specified Contracts in order
to
satisfy Section 7.2(f), then the Company shall be entitled to take all legally
permissible actions to divest or otherwise transfer or dispose of the Specified
Contracts to the extent such actions would not reasonably be expected to
result
in an Organizational Conflict of Interest issue for, or otherwise impose
any
material liability or obligation on, Parent or the Company or their respective
Subsidiaries.
(f) (i)
The Company and Parent shall cooperate with respect to the prompt preparation
and submission of a joint filing and any requested supplemental information
(collectively, the “Joint Filing”) to the Committee on
Foreign Investment in the United States (including any successor or replacement,
“CFIUS”) under Exon-Xxxxxx with regard to the
Transactions, (ii) Parent shall take primary responsibility for preparation
and
submission of the Joint Filing and (iii) the Company shall promptly provide
to
Parent all necessary information and otherwise promptly assist Parent in
order
for Parent to complete preparation and submission of the Joint Filing, to
respond to any inquiries from CFIUS or any other interested Governmental
Entity
and use reasonable best efforts to secure the approval of CFIUS of the
transactions contemplated hereby.
(g) Notwithstanding
any provision herein to the contrary, neither this
Section 6.3 nor any other provision in this
Agreement shall require Parent or any of its Affiliates to agree to any
prohibition, limitation, restriction or other requirement (i) on the businesses,
product lines, assets or operations of Parent or any of its Affiliates, or
if
such prohibition, limitation, restriction or other requirement would reasonably
be expected to have a Material Adverse Effect, any portion of the businesses,
product lines, assets or operations of the Company and its Subsidiaries or
(ii)
that requires Parent or any of its Affiliates to dispose of or hold separate
any
portion of the businesses, product lines, assets or operations of Parent
or any
of its Affiliates, or if such prohibition, limitation, restriction or other
requirement would reasonably be expected to have a Material Adverse Effect,
any
portion of the businesses, product lines, assets or operations of the Company
and its Subsidiaries or (iii) that otherwise restricts the ability of Parent
and
its Affiliates to acquire, manage and hold, if such prohibition, limitation,
restriction or other requirement would reasonably be expected to have a Material
Adverse Effect, any portion of the businesses, product lines, assets or
operations of the Company and its Subsidiaries, and in each case nothing
in this
Agreement shall authorize the Company or any of its Subsidiaries to (and
the
Company and its Subsidiaries shall not) propose, commit or agree to any of
the
foregoing.
(h) The
Company and the Company Board shall (i) take all action necessary to ensure
that
no state takeover statute or similar statute or regulation is or becomes
applicable to any of the Transactions or this Agreement and (ii) if any state
takeover statute or similar statute or regulation becomes applicable to the
Transactions or this Agreement, take all action necessary to ensure that
the
Merger and the other Transactions may be consummated as promptly as practicable
on the terms contemplated by this Agreement and otherwise to minimize the
effect
of such statute or regulation on the Merger and the other
Transactions.
(i) The
Company shall, simultaneously with the Effective Time, satisfy all outstanding
obligations under (A) the Company Credit Agreement and (B) the IDB Bonds,
including in the case of the IDB Bonds, compliance with the payoff notice
(which
may be conditioned on the Closing) and defeasance provisions of the IDB Bonds
to
the extent and in the manner and at the times reasonably requested by
Parent.
Section
6.4 Notification
of Certain Matters. Subject to applicable Law, the Company shall
give prompt notice to Merger Sub and Parent, and Merger Sub and Parent shall
give prompt notice to the Company of (a) the occurrence or non-occurrence
of any
event whose occurrence or non-occurrence would be likely to cause either
(i) any representation or warranty contained in this Agreement to be untrue
or inaccurate in any material respect at any time from the date of this
Agreement to the Effective Time or (ii) any condition to the Merger to be
unsatisfied in any material respect at the Effective Time and (b) any material
failure of the Company, Merger Sub or Parent, as the case may be, or any
officer, director, employee, agent or representative of the Company, Merger
Sub
or Parent as applicable, to comply with or satisfy any covenant or agreement
to
be complied with or satisfied by it under this Agreement; provided,
however, that the delivery of any notice pursuant to this
Section 6.4 shall not limit or otherwise affect
the
remedies available under this Agreement to the party receiving such
notice.
Section
6.5 Access;
Confidentiality. Subject to the Confidentiality Agreement and
applicable Law relating to the sharing of information, the Company agrees
to
provide, and shall cause its Subsidiaries to provide, Parent and its
Representatives, from time to time prior to the earlier of the Effective
Time or
the termination of this Agreement, (x) reasonable access during normal
business hours to, and (y) upon request, copies of relevant information to
Parent regarding (i) the Company’s and its Subsidiaries’ respective properties,
books, contracts, commitments, personnel and records, (ii) information
regarding actual or potential Organizational Conflict of Interest issues,
(iii)
information regarding the business of the Company and its Subsidiaries outside
the United States, including with respect to sales practices, distributors,
agents, customers and revenue and (iv) such other information as Parent
shall reasonably request with respect to the Company and its Subsidiaries
and
their respective businesses, financial condition and
operations. Parent shall and shall cause Parent’s Affiliates and
Representatives to hold any non-public information received from the Company,
its Affiliates or Representatives, directly or indirectly, pursuant to this
Section 6.5 in accordance with the Confidentiality
Agreement.
Section
6.6 Publicity. Neither
the Company, Parent nor any of their respective Affiliates shall issue or
cause
the publication of any press release or other announcement with respect to
this
Agreement or the Transactions without the prior consultation of the other
party
and giving the other party the opportunity to review and comment on such
press
release or other announcement, if practicable, except as such party reasonably
believes, after receiving the advice of outside counsel and after informing
all
other parties to this Agreement, is required by Law or by any listing agreement
with or rules of any applicable national securities exchange, trading market
or
listing authority and except as may be requested by a Governmental
Entity.
Section
6.7 Indemnification;
Directors’ and Officers’ Insurance.
(a) From
and after the Effective Time, the Surviving Corporation shall, and Parent
shall
cause the Surviving Corporation to, to the fullest extent permitted under
the
DGCL, honor the Company’s obligations existing as of the date of this Agreement
to indemnify and hold harmless each present and former director and officer
of
the Company and its Subsidiaries and each such individual who served at the
request of the Company or its Subsidiaries as a director, officer, trustee,
partner, fiduciary, employee or agent of another corporation, partnership,
joint
venture, trust, pension or other employee benefit plan or enterprise
(collectively, the “Indemnified Parties”) against all
costs and expenses (including attorneys’ fees), judgments, fines, losses,
claims, damages, liabilities and settlement amounts paid in connection with
any
claim, action, suit, proceeding or investigation (whether arising before
or
after the Effective Time), whether civil, administrative or investigative,
based
on the fact that such individual is or was such a director or officer or
is or
was serving at the request of the Company or its Subsidiaries and arising
out of
or pertaining to any action or omission occurring at or before the Effective
Time (including the Transactions).
(b) The
Surviving Corporation shall, and Parent shall cause the Surviving Corporation
to, provide, for a period of not less than six years after the Effective
Time,
the Company’s current and former directors and officers (as defined to mean
those persons insured under such policy) with an insurance and indemnification
policy that provides coverage for events occurring at or prior to the Effective
Time (the “D&O Insurance”) that is no less
favorable than the existing policy or, if substantially equivalent insurance
coverage is unavailable, the best available coverage; provided,
however, that the Surviving Corporation shall not be required to
pay an
annual premium for the D&O Insurance in excess of 300 percent of the
aggregate annual premiums paid by the Company for such insurance in 2007
through
the date of this Agreement on an annualized basis (the “D&O
Premium”), but in such case shall purchase as much of such
coverage as possible for such amount; and provided, further,
however, that at Parent’s option in lieu of the foregoing insurance
coverage, the Surviving Corporation may purchase “tail” insurance coverage that
provides coverage identical in all material respects to the coverage described
above and such purchases do not result in any gaps or lapses in coverage
with
respect to matters occurring prior to the Effective Time. The Company
represents and warrants to Parent that the Company’s 2007 annual premium was
$465,000.
(c) The
certificate of incorporation and bylaws of the Surviving Corporation shall
contain the provisions with respect to indemnification set forth in the Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws
of the
Company, which provisions shall not be amended, modified or otherwise repealed
for a period of six years from the Effective Time in any manner that would
adversely affect the rights thereunder as of the Effective Time of any
individual who at the Effective Time is a director, officer, employee or
agent
of the Company or is or previously was serving at the request of the Company
or
its Subsidiaries as a director, trustee, officer, member, manager, employee
or
agent of another corporation, partnership, joint venture, trust, limited
liability company, pension or other employee benefit plan or other enterprise,
unless such modification is required after the Effective Time by Law and
then
only to the minimum extent required by such Law.
(d) The
rights of each Indemnified Party under this Section 6.7
shall be in addition to any rights such individual may have under the Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws
(or
other governing documents) of the Company and any of its Subsidiaries, under
the
DGCL or any other applicable Laws or under any agreement of any Indemnified
Party with the Company or any of its Subsidiaries. These rights shall
survive consummation of the Merger and are intended to benefit, and shall
be
enforceable by, each Indemnified Party.
(e) In
the event that the Parent or Surviving Corporation or any of their respective
successors or assigns (i) consolidates with or merges into any other Person
and
is not the continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfers or conveys all or substantially all of its
properties and assets to any Person, then, and in each such case, proper
provision will be made so that the successors and assigns of the Surviving
Corporation assume the obligations set forth in this Section
6.7.
Section
6.8 Merger Sub
Compliance. Parent shall cause Merger Sub to comply with all of
its obligations under or related to this Agreement.
Section
6.9 Employee
Matters.
(a) Benefits. From
and after the Effective Time and until the first anniversary of the Effective
Time, Parent shall, or shall cause the Surviving Corporation or one of its
other
Subsidiaries to, maintain in effect Parent Plans which provide benefits which
are in the aggregate substantially comparable, excluding equity awards, to
the
benefits provided under the Company Plans as of the date hereof (provided
that
there will be no duplication of benefits).
(b) Eligibility. With
respect to any Parent Plan in which any employee of the Company or any of
its
Subsidiaries first becomes eligible to participate on or after the Effective
Time, Parent shall: (i) waive all pre-existing conditions, exclusions
and waiting periods with respect to participation and coverage requirements
applicable to each such employee and his or her eligible dependents under
such
Parent Plan, except to the extent such pre-existing conditions, exclusions
or
waiting periods applied immediately prior thereto under the analogous Company
Plan; (ii) provide such employee and his or her eligible dependents with
credit
for any co-payments and deductibles paid prior to becoming eligible to
participate in such Parent Plan under the analogous Company Plan (to the
same
extent that such credit was given under such Company Plan) in satisfying
any
applicable deductible or annual or lifetime maximum out-of-pocket requirements
under such Parent Plan; and (iii) recognize all service of such employee
with
the Company and its Subsidiaries and predecessors (including recognition
of all
prior service with any entity (including any such Subsidiary prior to its
becoming a Subsidiary of the Company) that was recognized by the Company
(or any
such Subsidiary) prior to the date hereof in the ordinary course of
administering its (or such Subsidiary’s) employee benefits), for purposes of
eligibility to participate in and vesting in benefits (other than under any
defined benefit pension plan or as would result in any duplication of benefits)
under such Parent Plan, to the extent that such service was recognized for
such
purpose under the analogous Company Plan.
(c)
No Third Party Beneficiaries. This Section
6.9 is not intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
Section
6.10
Stockholder Litigation. The Company shall give Parent the
opportunity to participate in the defense or settlement of any stockholder
litigation against the Company and its directors relating to any of the
Transactions; provided, however, that no such settlement shall be
agreed to without Parent’s consent, not to be unreasonably withheld or
delayed.
CONDITIONS
Section
7.1 Conditions
to Each Party’s Obligation to Effect the Merger. The respective
obligation of each party to effect the Merger shall be subject to the
satisfaction on or prior to the Closing Date of each of the following
conditions, any and all of which may be waived in whole or in part by the
Company, Parent and Merger Sub to the extent permitted by applicable
Law:
(a) Stockholder
Approval. The Stockholder Approval shall have been
obtained.
(b) Governmental
Approvals. (i) The waiting period (including any extension
thereof) applicable to the consummation of the Merger under the HSR Act shall
have expired or been terminated, (ii) the period of time for any applicable
review process under Exon-Xxxxxx shall have expired, and the President of
the
United States shall not have taken action to prevent the consummation of
the
Merger or the transactions contemplated hereby and (iii) all other material
filings with or permits, authorizations, consents and approvals of or
expirations of waiting periods imposed by any Governmental Entity required
to
consummate the Merger or the other Transactions shall have been obtained
or
filed or shall have occurred.
(c) No
Injunctions or Restraints. No Order or Law, entered, enacted,
promulgated, enforced or issued by any court of competent jurisdiction, or
any
other Governmental Entity, or other legal restraint or prohibition
(collectively, “Restraints”) shall be in effect
preventing the consummation of the Merger or the other Transactions;
provided, however, that each of the parties to this Agreement
shall have used its reasonable best efforts to prevent the entry of any such
Restraints and to appeal as promptly as possible any such Restraints that
may be
entered to the extent required by and subject to
Section 6.3.
Section
7.2 Conditions
to Obligations of Parent and Merger Sub. The obligation of Parent
and Merger Sub to effect the Merger is further subject to the satisfaction,
or
waiver by Parent and Merger Sub, on or prior to the Closing Date of the
following conditions:
(a) Representations
and Warranties.
(i) The
representations and warranties of the Company contained in this Agreement
shall
be true and correct at and as of the date of this Agreement and at and as
of the
Closing (without regard to any qualifications therein as to materiality or
Material Adverse Effect), as though made at and as of such time (or, if made
as
of a specific date, at and as of such date), except for such failures to
be true
and correct as have not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(ii) The
representations and warranties of the Company contained in Sections
3.4, 3.8(c),
3.9(a)(ii), 3.9(c)(ii),
3.9(d) and 3.21 of this
Agreement shall be true and correct in all material respects at and as of
the
date of this Agreement and at and as of the Closing (without regard to any
qualifications therein as to materiality or Material Adverse Effect), as
though
made at and as of such time (or, if made as of a specific date, at and as
of
such date).
(b) Performance
of Obligations of the Company. The Company shall have performed
or complied with in all material respects (or with respect to any covenant
or
agreement qualified by materiality or Material Adverse Effect, in all respects)
the covenants and agreements contained in this Agreement to be performed
or
complied with by it prior to or on the Closing Date.
(c) Officer’s
Certificate. The Company shall have furnished Parent with a
certificate dated the Closing Date signed on its behalf by its chief executive
officer and chief financial officer to the effect that the conditions set
forth
in Section 7.2(a) and Section
7.2(b) have been satisfied.
(d) Absence
of Material Adverse Effect. Since January 1, 2007, there
shall not have been any event, circumstance, change, occurrence, state of
facts
or effect (including the incurrence of any liabilities of any nature, whether
or
not accrued, contingent or otherwise) having, or that would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(e) No
Litigation. There shall not be pending any suit, proceeding or
other action by any Governmental Entity that seeks or that would reasonably
be
expected to have any of the effects described in Section
6.3(g).
(f) Specified
Contracts. With respect to each Specified Contract, prior to the
consummation of the Merger and with the concurrence of the United States
government, each Organizational Conflict of Interest provision thereunder
shall
have been deleted or modified in a manner such that it shall not apply to
or
affect Parent, the Company or any of their respective Subsidiaries following
the
Merger or such Specified Contract shall have been divested or otherwise
transferred to a third party.
Section
7.3 Conditions
to Obligations of the Company. The obligation of the Company to
effect the Merger is further subject to the satisfaction, or waiver by the
Company, on or prior to the Closing Date of the following
conditions:
(a) Representations
and Warranties. The representations and warranties of Parent and
Merger Sub contained in this Agreement shall be true and correct at and as
of
the date of this Agreement and at and as of the Closing (without regard to
any
qualifications therein as to materiality or material adverse effect), as
though
made at and as of such time (or, if made as of a specific date, at and as
of
such date), except for such failures to be true and correct as would not
reasonably be expected to prevent or otherwise have a material adverse effect
on
the ability of Parent to consummate the Merger.
(b) Performance
of Obligations of Parent and Merger Sub. Each of Parent and
Merger Sub shall have performed or complied with in all material respects
(or
with respect to any covenant or agreement qualified by materiality or material
adverse effect, in all respects) the covenants and agreements contained in
this
Agreement to be performed or complied with by it prior to or on the Closing
Date.
(c) Officer’s
Certificate. Each of Parent and Merger Sub shall have furnished
the Company with a certificate dated the Closing Date signed on its behalf
by
its chief executive officer (or chief legal officer in the case of Parent)
and
chief financial officer to the effect that the conditions set forth in
Section 7.3(a) and Section
7.3(b) have been satisfied.
Section
7.4 Frustration
of Closing Conditions. Neither Parent or Merger Sub nor the
Company may rely on the failure of any condition set forth in
Section 7.1, Section 7.2 or
Section
7.3, as the case may be, to be satisfied to
excuse it from its obligation to effect the Merger if such failure was caused
by
such party’s failure to comply with its obligations to consummate the Merger and
the other Transactions to the extent required by and subject to
Section 6.3.
TERMINATION
Section
8.1 Termination. This
Agreement may be terminated and the Merger may be abandoned at any time prior
to
the Effective Time (notwithstanding any Stockholder Approval):
(a) by
mutual written consent of Parent, Merger Sub and the Company;
(b) by
either Parent or the Company if:
(i) the
Merger has not been consummated on or before April 30,
2008 (the “Outside Date”);
provided, however, that the
right to terminate this Agreement
pursuant to this Section 8.1(b)(i) shall not be
available to any party whose breach of any provision of this Agreement in
any
material respect results in the failure of the Merger to be consummated by
such
time; providedfurther, however, that, if, on the Outside
Date, any of the conditions to the Closing set forth in Section
7.1(b), Section 7.1(c),
Section 7.2(e) or Section
7.2(f)
shall not have been fulfilled but all other conditions to the Closing either
have been fulfilled or are then capable of being fulfilled, then the Outside
Date shall, without any action on the part of the parties hereto, be extended
to
July 31, 2008, and such date shall become the Outside Date for purposes of
this
Agreement;
(ii) a
permanent injunction or other Order which is final and nonappealable shall
have
been issued or taken restraining or otherwise prohibiting consummation of
the
Merger or any of the other Transactions; provided, however, that
the party seeking to terminate this Agreement pursuant to this
Section 8.1(b)(ii) shall have used all reasonable best
efforts to prevent the entry of such permanent injunction or other Order
to the
extent required by and subject to Section 6.3;
or
(iii) if
the Special Meeting (including any adjournments and postponements thereof)
shall
have concluded without the Stockholder Approval having been obtained by reason
of the failure to obtain the required vote of the holders of
Shares.
(c) by
the Company only prior to the receipt of the Stockholder Approval, in order
to
concurrently enter into a definitive agreement with respect to a Company
Superior Proposal; provided that the Company shall have complied with all
provisions of Section 5.2(b) and shall have paid or
shall concurrently pay the fees due under Section
8.2(b).
(d) by
Parent, if the Company Board or any committee thereof shall have withdrawn,
or
modified in a manner adverse to Parent, the Company Recommendation.
(e) by
Parent, if the Company breaches or fails to perform or comply with any of
its
representations, warranties, agreements or covenants contained in this
Agreement, which breach or failure to perform or comply (i) would give rise
to
the failure of a condition set forth in
Section 7.2(a) or
Section 7.2(b) and (ii) cannot be cured
by the
Outside Date (provided that Parent is not then in material breach of any
representation, warranty, agreement or covenant contained in this
Agreement);
(f) by
the Company, if Parent or Merger Sub breaches or fails to perform or comply
with
any of its representations, warranties, agreements or covenants contained
in
this Agreement, which breach or failure to perform or comply (i) would give
rise to the failure of a condition set forth in
Section 7.3(a) or
Section 7.3(b) and (ii) cannot be cured by the
Outside Date (provided that the Company is not then in material breach of
any representation, warranty, agreement or covenant contained in this
Agreement).
Section
8.2 Effect of
Termination.
(a) If
this Agreement is terminated pursuant to
Section 8.1, this Agreement shall become void and
of no effect with no liability on the part of any party (or any stockholder,
director, officer, employee, agent, consultant or representative of such
party)
to the other party hereto; provided, however, that if such
termination shall result from the (i) failure of either party to fulfill a
condition to the performance of the obligations of the other party to the
extent
required by this Agreement or (ii) failure of either party to perform an
agreement or covenant hereof, such party shall not be relieved of any liability
to the other party as a result of such failure or breach;
providedfurther, however, that the provisions of
Section 3.19,
Section 6.6,
this
Section 8.2,
Article IX and
Article X
hereof and the provisions of the
Confidentiality Agreement shall survive such termination.
(b) If
this Agreement is terminated (i) by Parent pursuant to the provisions of
Section 8.1(d), (ii) by the Company pursuant
to the provisions of Section 8.1(c) or
(iii) by either Parent or the Company pursuant to the provisions of
Section 8.1(b)(i) (but only if the Stockholder
Approval has not been obtained prior to the Outside Date) or
Section 8.1(b)(iii) and (A) prior to such
termination a Company Takeover Proposal shall have been made to the Company
or
its stockholders or a Company Takeover Proposal shall have otherwise become
publicly known and (B) at any time on or prior to the 12 month anniversary
of such termination the Company or any of its Subsidiaries enters into a
definitive agreement with respect to any Company Takeover Proposal or the
transactions contemplated by any Company Takeover Proposal are consummated
(provided that solely for purposes of this Section 8.2(b)(iii)(B), the term
“Company Takeover Proposal” shall have the meaning set forth in the definition
of Company Takeover Proposal except that all references to 20% shall be deemed
references to 35%), the Company shall pay Parent a fee equal to
$12,850,000 by wire transfer (to an account designated by
Parent) in immediately available funds (x) in the case of clause (i),
within two business days after such termination, (y) in the case of
clause (ii), prior to or concurrently with such termination, and
(z) in the case of clause (iii), upon the earlier of entering into
such definitive agreement with respect to a Company Takeover Proposal or
consummation of the transactions contemplated by a Company Takeover Proposal
(unless the transactions contemplated by such Takeover Proposal were consummated
prior to such termination, in which case, such fee shall be payable on the
date
of such termination).
(c) The
Company acknowledges that the agreements contained in Section 8.2(b) are
an
integral part of the Transactions, and that, without these agreements, Parent
and Merger Sub would not enter into this Agreement; accordingly, if the Company
fails to pay in a timely manner any amount due pursuant to Section 8.2(b)
and,
in order to obtain such payment, Parent or Merger Sub commences a claim,
action,
suit or other proceeding that results in a judgment against the Company,
the
Company shall pay to Parent interest on such amount from and including the
date
payment of such amount was due to but excluding the date of actual payment
at
the prime rate set forth in the Wall Street Journal in effect on the
date such payment was required to be made plus 1%, together with reasonable
legal fees and expenses incurred in connection with such claim, suit, proceeding
or other action.
MISCELLANEOUS
Section
9.1 Amendment
and Waivers. Subject to applicable Law, and in accordance with
the immediately following sentence, this Agreement may be amended by the
parties
hereto by action taken or authorized by or on behalf of their respective
boards
of directors, at any time prior to the Closing Date, whether before or after
adoption of this Agreement by the stockholders of the Company and Merger
Sub. This Agreement may not be amended except by an instrument in
writing signed by the parties hereto. At any time prior to the
Effective Time, any party hereto may (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 by the other party contained
herein or in any document delivered pursuant hereto, and (iii) subject to
the
requirements of applicable Law, waive compliance by the other party with
any of
the agreements or conditions contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed
by
the party or parties to be bound thereby. The failure of any party to
this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
Section
9.2 Non-survival
of Representations and Warranties. None of the representations
and warranties in this Agreement or in any schedule, instrument or other
document delivered pursuant to this Agreement shall survive the Effective
Time.
Section
9.3 Expenses. All
fees, costs and expenses (including all legal, accounting, broker, finder
or
investment banker fees) incurred in connection with this Agreement and the
Transactions are to be paid by the party incurring such fees, costs and
expenses.
Section
9.4 Notices. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and sent by facsimile, by nationally
recognized overnight courier service or by registered mail and shall be deemed
given and effective on the earliest of (i) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Section 9.4 prior to 5:00 p.m.
(New York City time) on a Business Day and a copy is sent on such Business
Day
by nationally recognized overnight courier service, (ii) the Business Day
after
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Agreement later
than 5:00 p.m. (New York time) on any date and earlier than 12 midnight (New
York City time) on the following date and a copy is sent no later than such
date
by nationally recognized overnight courier service, (iii) when received,
if sent
by nationally recognized overnight courier service (other than in the cases
of
clauses (i) and (ii) above), or (iv) upon actual receipt by the party to
whom
such notice is required to be given if sent by registered mail. The
address for such notices and communications shall be as follows:
(a) if
to Parent or Merger Sub, to:
0000
Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx,
XX 00000
Attention:
(000) 000-0000
Telephone
No: (000)
000-0000
Facsimile
No.: Xxxxxx
X. Xxxxxxx, Esq.
with
a copy to:
Cravath,
Swaine & Xxxxx
LLP
000
Xxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Telephone
No.: (000)
000-0000
Facsimile
No.: (000)
000-0000
Attention: Xxxxxx
Xxxxxxxx, Esq.
(b) if
to the Company, to:
MTC
Technologies, Inc.
0000
Xxxxxx Xxxxxx
Xxxxxx,
Xxxx 00000
Telephone
No.: (000)
000-0000
Facsimile
No.: (000)
000-0000
Attention: Xxxxx
X. Xxxxxxx,
Senior
Vice President and General Counsel
with
a copy to:
Xxxxx
Day
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxx 00000
Telephone
No.: (000)
000-0000
Facsimile
No.: (000)
000-0000
Attention: Xxxxxx
X. Xxxxxxxx, Esq.
Xxxxx
X. Xxxxxxxxx, Esq.
Section
9.5 Counterparts. This
Agreement may be executed in two or more counterparts, each of which will
be
deemed an original but all of which will constitute one instrument.
Section
9.6 Entire
Agreement; No Third Party Beneficiaries. This Agreement
(including the schedules and annexes to this Agreement, and taken together
with
the Company Disclosure Letter), the Stockholder Voting Agreement, and the
Confidentiality Agreement constitute the entire agreement and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter of this Agreement. Other than as
provided in Section 6.7, nothing herein, express or
implied, is intended to or shall confer upon any Person other than the parties
to this Agreement and their permitted assigns any rights, benefits or remedies
of any nature whatsoever under or by reason of this Agreement.
Section
9.7 Severability. Any
term or provision of this Agreement that is held by a court of competent
jurisdiction or other Governmental Entity to be invalid, void or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions of this Agreement or
the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction or other Governmental Entity declares that
any
term or provision of this Agreement is invalid, void or unenforceable, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible and the parties
agree
that the court making such determination shall have the power to reduce the
scope, duration, area or applicability of the term or provision, to delete
specific words or phrases, or to replace any invalid, void or unenforceable
term
or provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable
term
or provision.
Section
9.8 Governing
Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware without giving effect to
the
principles of conflicts of law of the Laws of the State of
Delaware.
Section
9.9 Assignment. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned by any of the parties to this Agreement (whether
by
operation of Law or otherwise) without the prior written consent of the other
parties, except that Merger Sub may assign, in its sole discretion, any or
all
of its rights, interests and obligations under this Agreement to Parent or
to
any direct or indirect wholly-owned Subsidiary of Parent. Any
attempted assignment in violation of this Section 9.9
shall be void. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the parties
and
their respective successors and assigns.
Section
9.10 Consent to
Jurisdiction.
(a) Each
of the parties hereto (i) consents to submit itself to the personal
jurisdiction of the state and federal courts of the State of Delaware in
the
event that any dispute arises out of this Agreement or any of the Transactions,
(ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and
(iii) agrees that it will not bring any action relating to this Agreement
or any of the Transactions in any other court. Each of the parties
hereto irrevocably and unconditionally waives (and agrees not to plead or
claim)
any objection to the laying of venue of any dispute arising out of this
Agreement or any of the Transactions in the state and federal courts of the
State of Delaware, or that any such dispute brought in any such court has
been
brought in an inconvenient forum.
(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 (I) 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, (II) IT UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY,
AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.10(b).
Section
9.11 Specific
Enforcement. The parties 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. The parties accordingly agree that the parties will be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in
any
federal court located in the State of Delaware or a Delaware state court,
this
being in addition to any other remedy to which they are entitled at law or
in
equity.
DEFINITIONS;
INTERPRETATION
Section
10.1 Cross
References. Each of the following terms is defined in the section
set forth opposite such term.
|
Defined
Term
|
Section
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|
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Agreement
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Preamble
|
|
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Anti-Bribery
Laws
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3.8(c)
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Antitrust
Laws
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6.3(d)
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Bid
|
3.9(c)
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Certificate
|
2.1(a)
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Certificate
of Merger
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1.3
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CFIUS
|
6.3(f)
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Closing
|
1.2
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Closing
Date
|
1.2
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Code
|
3.13(c)
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Common
Stock
|
3.4(a),
Recitals
|
|
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Company
|
Preamble
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Company
Board
|
3.2(a)
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Company
Credit Agreement
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3.4(f)
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Company
Disclosure Letter
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Article
III Preamble
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Company
Government Contract
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3.9(c)
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Company
Government Subcontract
|
3.9(c)
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Company
Intellectual Property
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3.15
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Company
Permits
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3.8(a)
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Company
Plans
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3.13(a)
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Company
Recommendation
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3.2(c)
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Company
SEC Documents
|
3.5
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Confidentiality
Agreement
|
3.22
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D&O
Insurance
|
6.7(b)
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D&O
Premium
|
6.7(b)
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Dissenting
Shares
|
2.4(a)
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Effective
Time
|
1.3
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Exon-Xxxxxx
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3.3
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Export
Control Laws
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3.8(b)
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Financial
Statements
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3.5
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GAAP
|
3.5
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Governmental
Entity
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3.3
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Grant
Date
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3.4(b)
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HSR
Act
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3.3
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IDB
Bonds
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3.4(f)
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Indemnified
Parties
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6.7(a)
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IRS
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3.13(b)
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Joint
Filing
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6.3(f)
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Leased
Real Property
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3.14(b)
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Material
Contract
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3.9(a)
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Merger
|
1.1
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Merger
Consideration
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2.1(a)
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Merger
Sub
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Preamble
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Multiemployer
Plan
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3.13(a)
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Options
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2.3(a)
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Organizational
Conflicts of Interest
|
6.9(g)
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Outside
Date
|
8.1(b)(i)
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Owned
Real Property
|
3.14(a)
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Parent
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Preamble
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Paying
Agent
|
2.2(a)
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Payment
Fund
|
2.2(a)
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Preferred
Stock
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3.4(a)
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Proxy
Statement
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3.10
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Related
Persons
|
3.21
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Representatives
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5.2(a)
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Restraints
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7.1(c)
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RSU
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2.3(b)
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Securities
Act
|
3.5
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|
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Shares
|
Recitals
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SOX
|
3.5
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|
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Special
Meeting
|
6.2(a)
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|
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Specified
Contract
|
6.3(e)
|
|
|
Stockholder
Approval
|
3.2(b)
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|
|
Stockholder
Voting Agreement
|
Recitals
|
|
|
Surviving
Corporation
|
1.1
|
|
|
Transactions
|
2.2(e)
|
Section
10.2 Certain Terms
Defined. The following terms shall have the meanings set forth
below for purposes of this Agreement:
“Action”
means any claim, action, suit, proceeding or investigation by or before any
Governmental Entity.
“Affiliates”
has the meaning set forth in Rule 12b-2 of the Exchange Act.
“Business
Day” means any day other than a Saturday, Sunday or a day on which
banks in New York, New York are authorized or obligated by Law or Order to
close.
“Company
Superior
Proposal” means a Company Takeover Proposal (i) that if
consummated would result in a third party (or in the case of a direct merger
between such third party and the Company, the stockholders of such third
party)
acquiring, directly or indirectly, more than 50% of the voting power of the
Common Stock or all or substantially all the assets of the Company and its
Subsidiaries, taken as a whole, for consideration consisting of cash and/or
securities, (ii) that is reasonably capable of being completed, taking into
account all financial, legal, regulatory and other aspects of such proposal,
including all conditions contained therein, and (iii) that the Company Board
determines in good faith, after consultation with outside counsel and its
financial advisor (taking into account any changes to this Agreement proposed
by
Parent in response to a Company Takeover Proposal), has a higher value to
the
stockholders of the Company than the consideration to be received by the
stockholders of the Company in the Merger and the other
Transactions.
“Company
Takeover
Proposal” means (i) any inquiry, proposal or offer for or with
respect to a merger, consolidation, business combination, recapitalization,
binding share exchange, liquidation, dissolution, joint venture or other
similar
transaction involving the Company or any of its “Significant Subsidiaries” (as
such term is defined in the Exchange Act), (ii) any inquiry, proposal or
offer
to acquire in any manner, directly or indirectly, more than 20% of the
outstanding Common Stock or (iii) any inquiry, proposal or offer to acquire
in
any manner (including the acquisition of stock in any Subsidiary of the
Company), directly or indirectly, assets or businesses of the Company or
its
Subsidiaries representing more than 20% of the consolidated assets, revenues
or
net income of the Company, in each case, other than the
Transactions.
“DGCL”
means
the General Corporation Law of the State of Delaware.
“Encumbrance”
means any security interest, pledge, mortgage, lien, charge, hypothecation,
option to purchase or lease or otherwise acquire any interest, conditional
sales
agreement, adverse claim of ownership or use, title defect, easement, right
of
way, or other encumbrance of any kind.
“Environmental
Laws” means all Laws relating to the protection of the
environment, including the ambient air, soil, surface water or groundwater,
or
relating to the protection of human health from exposure to Materials of
Environmental Concern.
“Environmental
Permits” means all permits, licenses, registrations, and other
authorizations required under applicable Environmental Laws.
“ERISA”
means
the Employment Retirement Income Security Act of 1974, as amended, and the
rules
and regulations promulgated thereunder.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“Indebtedness”
of
any
Person means (a) all indebtedness for borrowed money or for the deferred
purchase price of property or services (other than current trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness which is evidenced by a
note,
bond, debenture or similar instrument, (c) all obligations under financing
leases, (d) all obligations in respect of acceptances issued or created,
(e) all liabilities secured by any lien on any property, and (f) all
guarantee obligations.
“Intellectual
Property
Rights” means United States or foreign intellectual property,
including (i) patents and patent applications, together with all reissues,
continuations, continuations-in-part, divisionals, provisionals, extensions
and
reexaminations thereof, (ii) trademarks, service marks, logos, trade names,
corporate names, trade dress, including all goodwill associated therewith,
and
all applications, registrations and renewals in connection therewith,
(iii) copyrights and copyrightable works and all applications and
registrations in connection with any of the foregoing, (iv) inventions and
discoveries (whether patentable or not), industrial designs, trade secrets,
confidential information and know-how, (v) computer software (including
databases and related documentation), (vi) uniform resource locators, web
site addresses and Internet domain names, and registrations therefor,
(vii) moral and economic rights of authors and inventors and (vii) all
other proprietary rights whether now known or hereafter recognized in any
jurisdiction.
“Knowledge”
means (i) with respect to Parent, the actual knowledge (after reasonable
inquiry) of the following persons: Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx, Xxx
Xxxxx
and Xxxxxx X. Xxxxxx, and (ii) with respect to the Company, the actual
knowledge (after reasonable inquiry) of the following executive officers
of the
Company: Xxxxxx X. Xxxx, Xxxx X. Xxxxx, Xxxxxxx X.
Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxxxxxx and Xxxxxx Xxxxxxx.
“Law”
means
any law, statute, code, ordinance, regulation or rule of any Governmental
Entity.
“Material
Adverse Effect” means any event, circumstance,
change, occurrence, state of facts or effect that (i) has a material
adverse effect on the business, assets, condition (financial or otherwise)
or
results of operations of the Company and its Subsidiaries, taken as a whole
(other than events, circumstances, changes, occurrences, any state of facts
or
effects to the extent arising out of or caused by (A) changes in industries
in which the Company and its Subsidiaries operate in general and not
specifically relating to the Company and its Subsidiaries, (B) general
legal, regulatory, political, business, economic, financial or securities
market
conditions in the United States or elsewhere (including fluctuations, in
and of
themselves, in the price of the Shares, provided that any underlying
event, circumstance, change, occurrence, state of facts or effect that may
have caused or contributed to such change in the trading price of the Shares
shall not be excluded), (C) the announcement of this Agreement and the
undertaking and performance or observance of the obligations contemplated
by
this Agreement or necessary to consummate the Transactions (including
uncertainties associated with the period between the date hereof and the
Closing
Date) including the impact thereof on relationships, contractual or otherwise,
with customers, suppliers, distributors, partners or employees, (D) acts of
war, insurrection or terrorism, (E) changes in GAAP or the accounting rules
or regulations of the SEC or (F) the failure, in and of itself, by the
Company to meet any internal or published projections, forecasts or revenue
or
earnings predictions for any period ending on or after the date of this
Agreement, provided that any underlying event, circumstance, change,
occurrence, state of facts or effect that may have caused or contributed to
such failure shall not be excluded), except, in the case of clauses (A),
(B), (D) or (E), to the extent such event, circumstance, change, occurrence,
state of facts or effect has a disproportionate effect on the Company and
its Subsidiaries, taken as a whole, compared with other similarly situated
companies, or (ii) has a material adverse effect on the ability of the
Company to consummate the Merger or otherwise perform its obligations under
this
Agreement, provided that “material” and “materially” have correlative
meanings. Without limiting the generality of the foregoing, any
event, circumstance, change, occurrence, state of facts or effect (whether
or not previously disclosed in the Company Disclosure Letter or in the Company
SEC Documents publicly available prior to the date of this Agreement or
otherwise) that, individually or in the aggregate, has resulted in, or would
reasonably be expected to result in, the suspension or debarment (or the
functional equivalents thereof) of, or that warrants or would reasonably
be
expected to warrant the institution of suspension or debarment proceedings
(or
the functional equivalents thereof) with respect to, the Company or any of
its
Subsidiaries or divisions (or any portion of any of the foregoing) or any
of
their respective directors, officers, employees, consultants or agents (in
their
capacity as such for the Company and its Subsidiaries), shall be deemed to
have
had a Company Material Adverse Effect.
“Materials
of Environmental
Concern” means any hazardous, acutely hazardous, or toxic
substance or waste defined or regulated as such under Environmental Laws,
including the federal Comprehensive Environmental Response, Compensation
and
Liability Act and the federal Resource Conservation and Recovery
Act.
“Order”
means
any order, judgment, ruling, injunction, assessment, award, decree or writ
of
any Governmental Entity.
“Parent
Plan”
means each “employee benefit plan” (within the meaning of Section 3(3) of ERISA
but excluding any Multiemployer Plan) and each other material director and
employee plan, program, agreement or arrangement, vacation or sick pay policy,
fringe benefit plan, compensation, severance or employment agreement, stock
bonus, stock purchase, stock option, restricted stock, stock appreciation
right
or other equity-based plan, and bonus or other incentive compensation or
salary
continuation plan or policy contributed to, sponsored or maintained by Parent
or
Merger Sub or, after the Effective Time, the Surviving Corporation.
“Permitted
Encumbrances” means: (i) Encumbrances that relate to Taxes,
assessments and governmental charges or levies imposed upon the Company that
are
not yet due and payable or that are being contested in good faith by appropriate
proceedings or for which reserves have been established in accordance with
GAAP
on the most recent financial statements included in the Company SEC Documents
(but only to the extent of such reserves), (ii) Encumbrances imposed by Law
that
relate to obligations that are not yet due and have arisen in the ordinary
course of business, (iii) pledges or deposits to secure obligations under
workers’ compensation Laws or similar legislation or to secure public or
statutory obligations, (iv) mechanics’, carriers’, workers’, repairers’ and
similar Encumbrances imposed upon the Company arising or incurred in the
ordinary course of business, (v) Encumbrances that relate to zoning, entitlement
and other land use and environmental Laws, (vi) other imperfections or
irregularities in title, charges, easements, survey exceptions, leases,
subleases, license agreements and other occupancy agreements, reciprocal
easement agreements, restrictions and other customary encumbrances on title
to
or use of real property, (vii) utility easements for electricity, gas, water,
sanitary sewer, surface water drainage or other general easements granted
to
Governmental Entities in the ordinary course of developing or operating any
Site, (viii) any Laws affecting any Site, (ix) any utility company rights,
easements or franchises for electricity, water, steam, gas, telephone or
other
service or the right to use and maintain poles, lines, wires, cables, pipes,
boxes and other fixtures and facilities in, over, under and upon any of the
Sites, (x) any encroachments of xxxxxx, areas, cellar steps, trim and
cornices, if any, upon any street or highway; provided, however,
that in the case of clauses (v) through (x), none of the foregoing, individually
or in the aggregate, materially adversely affect the continued use of the
property to which they relate in the conduct of the business currently conducted
thereon and (xi) as to any Leased Real Property, any Encumbrance affecting
the
interest of the lessor thereof.
“Person”
means a natural person, sole proprietorship, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
society or association, joint venture, Governmental Entity or other legal
entity
or organization.
“Registration
Rights
Agreements” means the Registration Rights Agreement dated June 11,
2002, by and between the Company and Xxxxxx X. Xxxx and the Registration
Rights
Agreement dated October 1, 2003, by and among the Company and Xxxxxx Xxxx,
Xxxx
Xxxx, and Xxxx Xxxx.
“SEC”
means
the United States Securities and Exchange Commission.
“Site”
means
each location where the Company or any Subsidiary of the Company conducts
business, including each Owned Real Property and Leased Real
Property.
“Stock
Plans”
means the Company’s 2002 Equity and Performance Incentive Plan (Amended and
Restated February 25, 2004) and 2007 Equity Compensation Plan.
“Subsidiary”
means, with respect to any party, any foreign or domestic corporation or
other
entity, whether incorporated or unincorporated, of which (a) such party or
any other Subsidiary of such party is a general partner (excluding such
partnerships where such party or any Subsidiary of such party does not have
a
majority of the voting interest in such partnership) or (b) at least a
majority of the securities or other equity interests having by their terms
ordinary voting power to elect a majority of the directors or others performing
similar functions with respect to such corporation or other entity is directly
or indirectly owned or controlled by such party or by any one or more of
such
party’s Subsidiaries, or by such party and one or more of its
Subsidiaries.
“Tax”
or
“Taxes” means all federal, state, local and foreign
taxes, payments due under any applicable abandoned property, escheat, or
similar
Laws and other assessments of a similar nature (whether imposed directly
or
through withholding), including any interest, additions to tax, or penalties
applicable thereto.
“Tax
Return”
or “Tax Returns” means all federal, state, local
and
foreign tax returns, declarations, statements, reports, schedules, forms
and
information returns and any amended tax return related to Taxes.
Section
10.3 Other
Definitional and Interpretative Provisions. The words “hereof,”
“herein” and “hereunder” and words of like import used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of
this
Agreement. Terms defined in the singular in this Agreement shall also
include the plural and vice versa. The captions and headings herein
are included for convenience of reference only and shall be ignored in the
construction or interpretation hereof. References to Articles,
Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and
Schedules of this Agreement unless otherwise specified. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation,” whether or not
they are in fact followed by those words or words of like import. The
phrases “the date of this Agreement,” “the date hereof” and phrases of similar
import, unless the context otherwise requires, shall be deemed to refer to
the
date set forth in the Preamble. The word “extent” in the phrase “to
the extent” shall mean the degree to which a subject or other thing extends, and
such phrase shall not mean simply “if”. The word “will” shall be
construed to have the same meaning as the word “shall”. The term “or”
is not exclusive. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. If any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden
of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
[Signatures
on Following Page.]
IN
WITNESS WHEREOF, Parent, Merger Sub
and the Company have caused this Agreement and Plan of Merger to be signed
by
their respective officers thereunto duly authorized as of the date first
written
above.
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | ||
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
||
|
Title:
|
Senior
Vice President and General Counsel
|
||
|
MIRA
ACQUISITION SUB INC.
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | ||
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
||
|
Title:
|
Vice
President and Assistant Secretary
|
||
|
MTC
TECHNOLOGIES, INC.
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxx | ||
|
Name:
|
Xxxxxx X. Xxxx | ||
|
Title:
|
Chairman and Chief Executive Officer | ||
-55-
CERTIFICATE
OF INCORPORATION
OF
MTC
TECHNOLOGIES, INC.
ARTICLE
I
The
name
of the corporation (hereinafter called the “Corporation”) is MTC
Technologies, Inc.
ARTICLE
II
The
address of the Corporation’s registered office in the State of Delaware is 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx. The name of
the registered agent at such address is The Corporation Trust
Company.
ARTICLE
III
The
purpose of the Corporation is to engage in any lawful act or activity for
which
corporations may be organized under the General Corporation Law of the State
of
Delaware.
ARTICLE
IV
The
total
number of shares of all classes of stock that the Corporation shall have
authority to issue is 1,000 shares of Common Stock having the par value of
$0.01
per share.
ARTICLE
V
The
number of directors of the Corporation shall be fixed from time to time by
the
Board of Directors of the Corporation.
ARTICLE
VI
In
furtherance and not in limitation of the powers conferred upon it by law,
the
Board of Directors of the Corporation is expressly authorized to adopt, amend
or
repeal the Bylaws of the Corporation.
ARTICLE
VII
Unless
and except to the extent that the Bylaws of the Corporation so require, the
election of directors of the Corporation need not be by written
ballot.
ARTICLE
VIII
To
the
fullest extent from time to time permitted by law, no director of the
Corporation shall be personally liable to any extent to the Corporation or
its
stockholders for monetary damages for breach of his or her fiduciary duty
as a
director.
ARTICLE
IX
Section
1. This Section 1 shall apply only with respect to matters arising
out of or pertaining to any action or omission occurring at or before the
Effective Time (as defined in the Agreement and Plan of Merger by and among
BAE
Systems, Inc., Mira Acquisition Sub Inc. and the Corporation dated December
21,
2007).
(a) Each
person who was or
is made a party or is threatened to be made a party to or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative
or
investigative (a “Proceeding”), by reason of the fact that he or she was
a director or an officer of the Corporation or was serving at the request
of the
Corporation as a director, officer, employee or agent of another corporation
or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (an “Indemnitee”), whether the
basis of such Proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving
as a
director, officer, employee or agent, shall be indemnified and held harmless
by
the Corporation to the fullest extent permitted or required by the General
Corporation Law of the State of Delaware (the “DGCL”), as the same exists
or may hereafter be amended (but, in the case of any such amendment, only
to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide
prior
to such amendment), against all expense, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such Indemnitee in
connection therewith; provided, however, that, except as provided
in Section 1(c) of this Article IX with respect to Proceedings to enforce
rights
to indemnification, the Corporation shall indemnify any such Indemnitee in
connection with a Proceeding (or part thereof) initiated by such Indemnitee
only
if such Proceeding (or part thereof) was authorized by the Board of
Directors.
(b) The
right to
indemnification conferred in Section 1(a) of this Article IX shall include
the
right to be paid by the Corporation the expenses (including, without limitation,
attorneys’ fees and expenses) incurred in defending any such Proceeding in
advance of its final disposition (an “Advancement of Expenses”);
provided, however, that, if the DGCL so requires, an Advancement
of Expenses incurred by an Indemnitee in his or her capacity as a director
or
officer of the Corporation (and not in any other capacity in which service
was
rendered by such Indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation
of an
undertaking (an “Undertaking”), by or on behalf of such Indemnitee, to
repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (a “Final
Adjudication”) that such Indemnitee is not entitled to be indemnified for
such expenses under this Section 1(b) or otherwise. The rights to
indemnification and to the Advancement of Expenses conferred in Section 1(a)
and
(b) of this Article IX shall be contract rights, and such rights shall continue
as to an Indemnitee who has ceased to be a director, officer, employee or
agent
and shall inure to the benefit of the Indemnitee’s heirs, executors and
administrators.
(c) If
a claim under Section
1(a) or (b) of this Article IX is not paid in full by the Corporation within
60
calendar days after a written claim has been received by the Corporation,
except
in the case of a claim for an Advancement of Expenses, in which case the
applicable period shall be 20 calendar days, the Indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount
of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an Advancement of Expenses pursuant
to the
terms of an Undertaking, the Indemnitee shall be entitled to be paid also
the
expense of prosecuting or defending such suit. In (i) any suit brought by
the
Indemnitee to enforce a right to indemnification hereunder (but not in a
suit
brought by the Indemnitee to enforce a right to an Advancement of Expenses)
it
shall be a defense that, and (ii) any suit brought by the Corporation to
recover
an Advancement of Expenses pursuant to the terms of an Undertaking, the
Corporation shall be entitled to recover such expenses upon a Final Adjudication
that, the Indemnitee has not met any applicable standard for indemnification
set
forth in the DGCL. Neither the failure of the Corporation (including its
Board
of Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such suit that indemnification
of the
Indemnitee is proper in the circumstances because the Indemnitee has met
the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the Indemnitee has not met such applicable
standard of conduct, shall create a presumption that the Indemnitee has not
met
the applicable standard of conduct or, in the case of such a suit brought
by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee
to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or brought by the Corporation to recover an Advancement of Expenses pursuant
to
the terms of an Undertaking, the burden of proving that the Indemnitee is
not
entitled to be indemnified, or to such Advancement of Expenses, under Section
1
of this Article IX or otherwise shall be on the Corporation.
(d) The
rights to
indemnification and to the Advancement of Expenses conferred in this Section
1
of this Article IX shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporation’s Certificate
of Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
(e) The
Corporation may
maintain insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation, partnership,
joint
venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
(f) The
Corporation may, to
the extent authorized from time to time by the Board of Directors, grant
rights
to indemnification and to the Advancement of Expenses to any employee or
agent
of the Corporation to the fullest extent of the provisions of Section 1 of
this
Article IX with respect to the indemnification and Advancement of Expenses
of
directors and officers of the Corporation.
Section
2. This Section 2 shall apply only with respect to matters arising
out of or pertaining to any action or omission occurring after the Effective
Time.
Each
person who is or was or had agreed to become a director or officer of the
Corporation, and each such person who is or was serving or who had agreed
to
serve at the request of the Corporation as a director, officer, partner,
member,
employee or agent of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise (including the heirs,
executor, administrators or estate of such person), shall be indemnified
by the
Corporation to the fullest extent permitted from time to time by applicable
law,
which indemnification shall not be deemed exclusive of any other rights to
which
such person may be entitled under the Bylaws of the Corporation or any
agreement, vote of stockholders or disinterested directors or
otherwise. Any repeal or modification of this Article IX shall not
adversely affect any right to indemnification of any persons existing at
the
time of such repeal or modification with respect to any matter occurring
prior
to such repeal or modification.
EXHIBIT
C
BYLAWS
of
MTC
Technologies, Inc.
(hereinafter
called the “Corporation”)
ARTICLE
I
Offices
Section
1. Registered
Office. The address of the Corporation's registered office in the
State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx. The name of the registered agent at such address is The
Corporation Trust Company.
Section
2. Other
Offices. The Corporation may have such other offices in such
places, either within or without the State of Delaware, as the Board of
Directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE
II
Meetings
of Stockholders
Section
1. Place
of Meetings. Meetings of the stockholders shall be held at such
time and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors or the Chairman of the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section
2. Annual
Meetings. An annual meeting of the stockholders shall be held on
such date and at such time as shall be designated from time to time by the
Board
of Directors and stated in the notice of the meeting, at which meetings the
stockholders shall transact such business as may be properly brought before
the
meeting. Written notice of each annual meeting stating the place,
date and hour of the meeting shall be given not less than 10 nor more than
60
days before the date of the meeting to each stockholder entitled to vote at
such
meeting.
Section
3. Special
Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, special meetings of the stockholders, for any
purpose or purposes, may be called at any time by the Board of
Directors. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called shall be given not less than 10 nor more than 60 days before the
date
of the meeting to each stockholder entitled to vote at such meeting. Only
business that is specified in the written notice of a special meeting may be
transacted at such meeting of stockholders.
1
Section
4. Quorum. Unless
otherwise prescribed by law or by the Certificate of Incorporation, the holders
of a majority of the capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at
all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of
the
stockholders, the stockholders entitled to vote thereat, present in person
or
represented by proxy, shall have the power to adjourn the meeting from time
to
time, without notice other than announcement at such meeting, until a quorum
shall be present or represented by proxy. At such adjourned meeting
at which a quorum shall be present or represented by proxy, any business may
be
transacted which might have been transacted at the meeting as originally
noticed. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice
of
the adjourned meeting shall be given to each stockholder entitled to vote at
the
meeting.
Section
5. Voting. Unless
otherwise prescribed by law, the Certificate of Incorporation or these Bylaws,
any question brought before any meeting of the stockholders shall be decided
by
the vote of the holders of a majority of the stock represented and voting on
such question. Each stockholder represented at a meeting of the
stockholders shall be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder. Such votes
may be cast in person or by proxy.
Section
6. Consent
of Stockholders in Lieu of Meeting. Unless otherwise provided in
the Certificate of Incorporation, any action required or permitted to be taken
at any meeting of stockholders of the Corporation may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
capital stock entitled to vote thereon having not less than the minimum number
of votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and
voted. Such writing or writings shall be filed with the minutes of
meetings of the stockholders and prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
Section
7. Meeting
by Means of Conference Telephone. Unless otherwise provided by
the Certificate of Incorporation or these Bylaws, any stockholder may
participate in a meeting of the stockholders by means of a conference telephone
or similar communications equipment that enables all persons participating
in
such meeting to hear each other, and participation in a meeting pursuant to
this
Section 7 shall constitute presence in person at such meeting.
Section
8. List
of Stockholders Entitled to Vote. The officer of the Corporation
who has charge of the stock ledger of the Corporation shall prepare and make,
at
least ten days before every meeting of the stockholders, a complete list of
the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to
examination by any stockholder, for any purpose germane to the meeting for
a
period of at least ten days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii) during ordinary
business hours, at the principal place of business of the
corporation. In the event that the corporation determines to make the
list available on an electronic network, the corporation may take reasonable
steps to ensure that such information is available only to stockholders of
the
corporation. If the meeting is to be held at a place, then the list
shall be produced and kept at the time and place of the meeting during the
whole
time thereof, and may be inspected by any stockholder who is
present.
2
Section
9. Stock
Ledger. The stock ledger of the Corporation shall constitute the
list required by Section 8 of this Article I and shall be the only evidence
as
to the stockholders entitled to examine the stock ledger or to vote in person
or
by proxy at any meeting of stockholders.
ARTICLE
III
Directors
Section
1. Qualification
and Election of Directors. Directors need not be
stockholders. The Board of Directors shall have the authority to
prescribe required qualifications for directors. Each of the
directors shall hold office until his resignation or removal in the manner
hereinafter provided.
Section
2. Resignations. Any
director may resign at any time. Such resignation shall be made in
writing and shall take effect at the time specified therein, or if no time
at
which it becomes effective shall be specified therein, at the time of its
receipt by the Chairman of the Board, if any, the President or the
Secretary. The acceptance of a resignation shall not be necessary to
make it effective.
Section
3. Removal. Except
as hereinafter provided, any director or directors may be removed with or
without cause at any time by the affirmative vote of the holders of a majority
of the shares of capital stock entitled to vote for the election of directors,
and the vacancy thus created may be filled, at such meeting, by the affirmative
vote of holders of a majority of the shares of capital stock entitled to vote
for the election of directors.
Section
4. Vacancies. Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and the directors
so
chosen shall hold office until the earlier of their resignation or
removal.
Section
5. Duties
and Powers. The business of the Corporation shall be managed by
or under the direction of the Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not
by
statute or by the Certificate of Incorporation or by these Bylaws conferred
upon
or reserved to the stockholders; provided, however, that any
action taken by the Board of Directors shall be subject to reversal in the
event
of a contrary vote by the stockholders.
3
Section
6. Meetings. The
Board of Directors may hold meetings either within or without the State of
Delaware.
Section
7. Quorum. Unless
otherwise provided by law, the Certificate of Incorporation or these Bylaws,
at
all meetings of the Board of Directors, a majority of the entire Board of
Directors then in office shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting
at
which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at such meeting, until
a
quorum shall be present.
Section
8. Actions
by Consent. Unless otherwise provided by law, the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken
at
any meeting of the Board of Directors may be taken without a meeting, if all
the
members of the Board of Directors consent thereto in writing, and such writing
is filed with the minutes of proceedings of the Board of Directors.
Section
9. Meeting
by Means of Conference Telephone. Unless otherwise provided by
law, the Certificate of Incorporation or these Bylaws, members of the Board
of
Directors of the Corporation may participate in a meeting of the Board of
Directors by means of a conference telephone or similar communications equipment
that enables all persons participating in the meeting to hear each other, and
participation in a meeting pursuant to this Section 9 shall constitute presence
in person at such meeting.
Section
10. Committees. The
Corporation shall not have any committees of the Board of
Directors.
Section
11. Compensation. The
directors who are officers or employees of an affiliate of the Corporation
shall
serve on the Board of Directors without compensation or reimbursement of
expenses. The compensation of any other director shall be in the form
of a fixed fee and expenses of attendance set by resolution adopted by the
Board
of Directors. Nothing herein contained, however, shall be construed
to preclude any director from serving the Corporation in any other capacity
as
an officer, agent or otherwise, and receiving compensation
therefor.
Section
12. Interested
Directors. No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association or other organization in which
one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting
of
the Board of Directors which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors, and the Board
of Directors in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though
the
disinterested directors be less than a quorum; (ii) the material facts as
to his or their relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote thereon, and
the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board
of Directors thereof or the stockholders. Common or interested directors may
be
counted in determining the presence of a quorum at a meeting of the Board of
Directors which authorizes the contract or transaction.
4
ARTICLE
IV
Officers
Section
1. General. The
officers of the Corporation shall be chosen by the Board of Directors and shall
be a President, a Secretary and a Treasurer. The Board of Directors,
in its discretion, may also choose a Chairman of the Board of Directors, one
or
more Vice Chairmen (who must be directors) and one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers as it may deem
proper. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these
Bylaws. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of
Directors and any Vice Chairman, need such officers be directors of the
Corporation.
Section
2. Election. The
Board of Directors shall elect the officers of the Corporation who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors;
and
all officers of the Corporation shall hold office until their successors are
elected and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed
at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
Section
3. Voting
Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to
securities owned by the Corporation may be executed in the name of and on behalf
of the Corporation by any officer of the Corporation and any such officer may,
in the name of and on behalf of the Corporation, take all such action as any
such officer may deem advisable to vote in person or by proxy at any meeting
of
security holders of any corporation in which the Corporation may own securities
and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present, in
each
case subject to having obtained the requisite Board of Directors’ and
stockholders’ approvals with respect to any such matter. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
5
Section
4. Chairman
of the Board of Directors. The Chairman of the Board of
Directors, if one shall be chosen by the Board of Directors, shall preside
at
all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is
required, the Chairman of the Board of Directors shall possess the same power
as
the President to sign all contracts, certificates and other instruments of
the
Corporation which may be authorized by the Board of Directors. During
the absence or disability of the President, the Chairman of the Board of
Directors shall exercise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors shall also perform
such other duties and may exercise such other powers as from time to time may
be
assigned to him by these Bylaws or by the Board of Directors.
Section
5. Vice
Chairman. The Vice Chairman of the Board of Directors, if one
shall be chosen by the Board of Directors, or the Vice Chairmen, if there shall
be more than one, shall perform such duties and may exercise such other powers
as from time to time may be assigned by these Bylaws, the Board of Directors
or
the Chairman of the Board of Directors. In the absence or disability
of the Chairman of the Board of Directors, or if there be none, the Vice
Chairman shall preside at meetings of the stockholders and the Board of
Directors.
Section
6. President. The
President shall be the chief executive officer of the Corporation and shall
exercise general and active supervision over and management of the property,
affairs and business of the Corporation and shall authorize other officers
of
the Corporation to exercise such powers as he, in his discretion, may deem
to be
in the best interests of the Corporation. The President shall preside
at meetings of the stockholders and the Board of Directors in the absence of
the
Chairman of the Board, or if a Chairman of the Board is not chosen by the Board
of Directors. The President shall, in general, perform all duties
incident to the office of President and shall have such other duties as the
Board of Directors may from time to time prescribe.
Section
7. Vice
President. The Vice President, or Vice Presidents, if any shall
be appointed, shall have such duties as the Board of Directors, the President
or
these Bylaws may from time to time prescribe.
Section
8. Treasurer. The
Treasurer shall have the custody of the Corporation funds and securities and
shall keep full and accurate account of receipts and disbursements in books
belonging to the Corporation. He shall deposit all moneys and other
valuables in the name and to the credit of the Corporation in such depositaries
as may be designated by the Board of Directors. He shall disburse the
funds of the Corporation as may be ordered by the Board of Directors, or the
President, making proper vouchers for such disbursements. He shall
render to the President and the Board of Directors whenever any of the foregoing
may request it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
6
Section
9. Secretary. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and Board of Directors and all other notices required by law or
by
these Bylaws, and in case of his absence or refusal or neglect so to do, any
such notice may be given by any person thereunto directed to do so by the
President, the Board of Directors or the stockholders, upon whose request the
meeting is called as provided in these Bylaws. He shall record all
the proceedings of the meetings of the Board of Directors, any committees
thereof and the stockholders of the Corporation in a book to be kept for that
purpose, and shall perform such other duties as may be assigned to him by the
Board of Directors or the President. He shall have the custody of the
seal of the Corporation and shall affix the same to all instruments requiring
it, when authorized by the Board of Directors or the President, and attest
the
same.
Section
10. Assistant
Treasurers and Assistant Secretaries. Assistant Treasurers and
Assistant Secretaries, if any shall be appointed, shall have such powers and
shall perform such duties as shall be assigned to them, respectively, by the
Board of Directors or the President.
ARTICLE
V
Stock
Section
1. Form
of Certificates. Every holder of stock in the Corporation shall
be entitled to have a certificate signed in the name of the Corporation
(i) by the Chairman or the Vice Chairman of the Board of Directors, or the
President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
representing the shares owned by him in the Corporation.
Section
2. Signatures. Any
and all signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent
or
registrar at the date of issue.
Section
3. Lost
Certificates. The Board of Directors may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
7
Section
4. Transfers. Stock
of the Corporation and certificates representing such stock shall be
transferable in the manner prescribed by law and in these
Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate representing such stock
or by his attorney lawfully constituted in writing and upon the surrender of
the
certificate therefor (properly endorsed or accompanied by a stock power properly
executed), which shall be canceled before a new certificate shall be
issued.
Section
5. Record
Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders
or
any adjournment thereof, or entitled to express consent to corporate action
in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than 60 days nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other
action. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the
meeting; provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section
6. Beneficial
Owners. The Corporation shall be entitled (i) to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends and to vote as such owner and (ii) to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall
have express or other notice thereof, except as otherwise provided by
law.
ARTICLE
VI
Notices
Section
1. Notices. Whenever
written notice is required by law, the Certificate of Incorporation or these
Bylaws, to be given to any director or stockholder, such notice may be given
by
mail, addressed to such director or stockholder, at his address as it appears
on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in
the
United States mail. Written notice may also be given personally or by
telephone, fax, email, telegram, telex or cable, in each case, to the extent
permitted by law.
Section
2. Waivers
of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, to be given to any director or
stockholder, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a director or a
stockholder in person or by proxy at such a meeting shall constitute a waiver
of
notice to such director or stockholder of such meeting, except when such
director or stockholder attends the meeting for the express purpose of objecting
at the beginning of the meeting to the transaction of any business because
the
meeting is not lawfully called or convened.
8
ARTICLE
VII
Contracts,
Checks, Drafts, Bank Accounts, Etc.
Section
1. Execution
of Documents. The Board of Directors shall designate the
officers, employees and agents of the Corporation who shall have power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and
in
the name of the Corporation and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; and unless
so designated or expressly authorized by these Bylaws, no officer, employee
or
agent shall have any power or authority to bind the Corporation by any contract
or engagement or to pledge its credit or to render it liable pecuniarily for
any
purpose or to any amount.
Section
2. Deposits. All
funds of the Corporation not otherwise employed shall be deposited from time
to
time to the credit of the Corporation or otherwise as the Board of Directors,
the President or any other officer of the Corporation to whom power in that
respect shall have been delegated by the Board of Directors shall
select.
ARTICLE
VIII
Books
and Records
The
books
and records of the Corporation may be kept at such places within or without
the
State of Delaware as the Board may from time to time determine.
ARTICLE
IX
General
Provisions
Section
1. Dividends. Subject
to the provisions of the Certificate of Incorporation, if any, dividends upon
the capital stock of the Corporation may be declared by the Board of Directors
at any meeting, and may be paid in cash or in property. Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing
or
maintaining any property of the Corporation or for any proper purpose, and
the
Board of Directors may modify or abolish any such reserve.
9
Section
2. Disbursements. All
checks or demands for money and notes of the Corporation shall be signed by
such
officer or officers or such other person or persons as the Board of Directors
may from time to time designate.
Section
3. Fiscal
Year. The fiscal year of the Corporation shall be the calendar
year, or such other period as may be adopted by resolution of the Board of
Directors.
Section
4. Corporate
Seal. The Board of Directors may adopt a corporate seal and use
the same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE
X
Indemnification
Section
1. Applicability
of Article X. Article X shall apply only with respect to matters
arising out of or pertaining to any action or omission occurring after the
Effective Time (as defined in the Agreement and Plan of Merger by and among
BAE
Systems, Inc., Mira Acquisition Sub Inc. and the Corporation dated December
21,
2007).
Section
2. Power
to Indemnify in Actions, Suits or Proceedings other than those by or in the
Right of the Corporation.
(a) Subject
to the limitations set forth in Section 2(b) of this Article X, the Corporation
shall indemnify any person (the “indemnitee”) who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or trustee
of
another corporation, partnership, joint venture, trust or other enterprise,
against all expenses, liabilities and losses (including attorneys’ fees,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed
to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
10
(b) Notwithstanding
any other provision in this Bylaw, the Corporation shall not be obligated under
this Bylaw to make any indemnity in connection with any claim made against
an
indemnitee: (1) to the extent expressly prohibited by Delaware law or
the Bylaws of the Corporation; (2) for which payment has actually been made
to
the indemnitee under a valid and collectible insurance policy or under a valid
and enforceable indemnity clause, bylaw or agreement of the Corporation or
any
other company or organization on whose board the indemnitee serves at the
request of the Corporation, except with respect to any deductible (or the
equivalent) from or excess beyond the amount payable or paid under any insurance
policy or other indemnity provision; or (3) in connection with any proceeding
(or any part of any proceeding), including claims and counterclaims, initiated
or brought voluntarily by the indemnitee, including any proceeding (or any
part
of any proceeding) initiated by such indemnitee against the Corporation or
its
directors, officers, employees or other indemnitees in their capacity as such,
but excluding a proceeding pursuant to Section 6 of this Article X with respect
to the enforcement of rights to indemnification under this Article, unless
(i)
the Board of Directors authorized the proceeding (or such part of any
proceeding) prior to its initiation or (ii) the Corporation elects to provide
the indemnification, in its sole discretion, pursuant to the powers vested
in
the Corporation under applicable law.
Section
3. Power
to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to the limitations set forth in Section 2(b)
of this Article X, the Corporation shall indemnify any person who was or is
a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer or trustee of another corporation,
partnership, joint venture, trust or other enterprise against all expenses
(including attorneys’ fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
in
good faith and in a manner he reasonably believed to be in or not opposed to
the
best interests of the Corporation; except that no indemnification shall be
made
in respect of any claim, issue or matter as to which he shall have been adjudged
to be liable to the Corporation unless and only to the extent that the court
in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances
of
the case, he is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section
4. Authorization
of Indemnification. Any indemnification under this Article X
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the present
or
former director or officer is proper in the circumstances because he has met
the
applicable standard of conduct set forth in Section 2 or Section 3 of this
Article X, as the case may be. Such determination shall be made,
with respect to a person who is a director or officer at the time of such
determination, (i) by a majority vote of the directors who were not parties
to such action, suit or proceeding, even though less than a quorum, (ii) by
a committee of such directors designated by majority vote of such directors,
even though less than a quorum, (iii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion
or
(iv) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or
in
defense of any claim, issue or matter therein, he shall be indemnified against
all expenses (including attorneys’ fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific
case.
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Section
5. Expenses
Payable in Advance. Expenses (including attorneys’ fees) incurred
in defending any civil, criminal, administrative or investigative action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by
or on behalf of such present or former director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article X.
Section
6. Right
to Bring Suit. If a claim under Section 2 or 5 of this Article X
is not paid in full by the Corporation within 60 days after a written claim
has
been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be 20 days,
the indemnitee may at any time thereafter bring suit against the Corporation
to
recover the unpaid amount of the claim. If successful in whole or in part in
any
such suit, or in a suit brought by the Corporation to recover an advancement
of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such
suit. In (a) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that the
indemnitee has not met any applicable standard for indemnification set forth
in
the General Corporation Law of the State of Delaware (the “DGCL”), and
(b) in any suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation shall be entitled
to
recover such expenses upon a final adjudication that the indemnitee has not
met
any applicable standard for indemnification set forth in the
DGCL. Neither the failure of the Corporation (including its directors
who are not parties to such action, a committee of such directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper
in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the DGCL, nor an actual determination by the Corporation
(including its directors who are not parties to such action, a committee of
such
directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption
that
the indemnitee has not met the applicable standard of conduct or, in the case
of
such a suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right to indemnification or
to
an advancement of expenses hereunder, or brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the burden
of proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article X or otherwise shall be on the
Corporation.
Section
7. Nonexclusivity
of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant
to
this Article X shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
Bylaw, agreement, vote of stockholders or disinterested directors or otherwise
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as
to
action in another capacity while holding such office, it being the policy of
the
Corporation that indemnification of the persons specified in Sections 2 and
3 of this Article X shall be made to the fullest extent permitted by
law.
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Section
8. Insurance. The
Corporation may purchase and maintain insurance, at its expense, on behalf
of the Corporation or any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the Corporation would
have
the power or the obligation to indemnify him against such liability under the
DGCL.
Section
9. Indemnification
of Employees and Agents of the Corporation. The Corporation may,
to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification and to the advancement of expenses to any employee
or
agent of the Corporation (or any of its direct or indirect subsidiaries or
affiliates) who does not qualify for indemnification as an indemnitee under
this
Bylaw to the fullest extent of the provisions of this Article with respect
to
the indemnification and advancement of expenses of directors and executive
officers of the Corporation.
Section
10. Certain
Definitions. For purposes of this Article X, references to
“the Corporation” shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees
or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article X with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued. For
purposes of this Article X, references to “other enterprises” shall include
employee benefits plans; references to “fines” shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references
to
“serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties
on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person
who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article X.
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Section
11. Survival
of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Article X shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. Any amendment, alteration or repeal
of this Article X that adversely affects any right of an indemnitee or his
successors shall be prospective only and shall not limit or eliminate any such
right with respect to any proceeding involving any occurrence or alleged
occurrence of any action or omission to act that took place prior to such
amendment or repeal.
ARTICLE
XI
Amendments
Section
1. Amendment,
etc. The Board of Directors shall have the power to adopt, amend
or repeal Bylaws. Bylaws adopted by the Board of Directors may be
repealed or changed, and new Bylaws made, by the stockholders, and the
stockholders may prescribe that any Bylaw made by them shall not be altered,
amended or repealed by the Board of Directors.
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