MERGER AGREEMENT DATED AUGUST 7, 2007 BY AND AMONG ECOLAB INC., MAGIC ACQUISITION INC., AND MICROTEK MEDICAL HOLDINGS, INC.
EXHIBIT 2.1
DATED
AUGUST 7, 2007
BY
AND AMONG
ECOLAB
INC.,
MAGIC
ACQUISITION INC.,
AND
|
TABLE
OF CONTENTS
|
SECTION
1
|
THE
MERGER
|
1
|
1.1
|
The
Merger
|
1
|
1.2
|
Closing;
Effective Time
|
1
|
1.3
|
Effects
of the Merger
|
2
|
1.4
|
Articles
of Incorporation and Bylaws
|
2
|
1.5
|
Directors
and Officers of the Surviving Corporation
|
2
|
1.6
|
Subsequent
Actions
|
2
|
SECTION
2
|
CONVERSION
OF SHARES
|
2
|
2.1
|
Conversion
of Shares
|
2
|
2.2
|
Paying
Agent
|
3
|
2.3
|
Investment
and Termination of Fund
|
5
|
2.4
|
Dissenting
Shares
|
5
|
2.5
|
Company
Share Plans
|
6
|
SECTION
3
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
7
|
3.1
|
Organization,
Standing and Corporate Power
|
7
|
3.2
|
Capitalization
|
8
|
3.3
|
Authority;
Company Board Approval; No Breach
|
9
|
3.4
|
Consents
and Filings
|
11
|
3.5
|
Company
SEC Documents; Financial Statements; Undisclosed
Liabilities
|
11
|
3.6
|
Controls
and Procedures
|
13
|
3.7
|
Information
Supplied
|
13
|
3.8
|
Absence
of Certain Changes
|
13
|
3.9
|
Proceedings
|
14
|
3.10
|
Compliance
with Laws; Permits; Regulatory Matters
|
14
|
3.11
|
Tax
Matters
|
16
|
3.12
|
Employment
Matters
|
17
|
3.13
|
Employee
Benefits
|
17
|
3.14
|
Properties
and Assets
|
19
|
3.15
|
Intellectual
Property
|
20
|
3.16
|
Insurance
|
21
|
3.17
|
Contracts
|
22
|
3.18
|
Environmental
Matters
|
23
|
3.19
|
Related
Party Transactions
|
24
|
3.20
|
Customers
and Suppliers
|
24
|
3.21
|
Certain
Business Practices
|
24
|
3.22
|
Brokers
|
24
|
SECTION
4
|
REPRESENTATIONS
AND WARRANTIES OF PARENT AND MERGER SUB
|
25
|
4.1
|
Organization;
Standing; Corporate Power
|
25
|
4.2
|
Authority;
Parent Board Approval; No Breach
|
25
|
4.3
|
Consents
and Filings
|
26
|
4.4
|
Information
Supplied
|
27
|
4.5
|
Available
Funds
|
27
|
4.6
|
Brokers
|
27
|
4.7
|
Ownership
of Company Common Stock
|
27
|
4.8
|
No
Other Information
|
27
|
i
SECTION
5
|
COVENANTS
AND AGREEMENTS
|
27
|
5.1
|
Conduct
of Business
|
27
|
5.2
|
No
Solicitation; Change in Recommendation
|
31
|
5.3
|
Preparation
of Proxy Statement
|
35
|
5.4
|
Shareholder
Meeting; Board Recommendation
|
36
|
5.5
|
Access
to Information; Confidentiality
|
36
|
5.6
|
Reasonable
Efforts; Filings; Notification
|
37
|
5.7
|
Public
Announcements
|
38
|
5.8
|
Indemnification
and Insurance
|
38
|
5.9
|
Fees
and Expenses
|
39
|
5.10
|
Taxes
|
40
|
5.11
|
Benefits
and Employment
|
40
|
5.12
|
Shareholder
Proceedings
|
42
|
SECTION
6
|
CONDITIONS
TO CLOSING
|
42
|
6.1
|
Conditions
to Each Party’s Obligations
|
42
|
6.2
|
Conditions
to Parent’s and Merger Sub’s Obligations
|
43
|
6.3
|
Conditions
to the Company’s Obligation
|
44
|
SECTION
7
|
TERMINATION
|
44
|
7.1
|
Termination
|
44
|
7.2
|
Obligations
Upon Termination
|
45
|
SECTION
8
|
MISCELLANEOUS
PROVISIONS
|
46
|
8.1
|
Interpretation
and Usage
|
46
|
8.2
|
Nonsurvival
of Representations and Warranties
|
47
|
8.3
|
Amendment
and Modification
|
47
|
8.4
|
Waiver
of Compliance; Consents
|
47
|
8.5
|
No
Third Party Beneficiaries
|
48
|
8.6
|
Notices
|
48
|
8.7
|
Assignment
|
49
|
8.8
|
Governing
Law and Venue; Waiver of Jury Trial
|
49
|
8.9
|
Counterparts
|
49
|
8.10
|
Enforcement
|
50
|
8.11
|
Entire
Agreement
|
50
|
8.12
|
Severability
|
50
|
8.13
|
WAIVER
OF JURY TRIAL
|
50
|
Exhibit
A
|
Definitions
|
Exhibit
B
|
Persons
With Knowledge
|
ii
This
Merger Agreement, dated August 7, 2007 (the “Agreement”), is by and among
Ecolab Inc., a Delaware corporation (“Parent”), Magic Acquisition Inc., a
Georgia corporation and wholly-owned Subsidiary of Parent (“Merger Sub”),
and Microtek Medical Holdings, Inc., a Georgia corporation (the
“Company”).
RECITALS
A. The
respective boards of directors of Parent, Merger Sub and the Company have
approved this Agreement and the merger of Merger Sub with and into the Company
(the “Merger”) upon the terms and subject to the conditions set forth in
this Agreement and in accordance with the Georgia Business Corporation Code
(the
“GBCC”).
B. Capitalized
terms used in this Agreement will have the meanings specified in Exhibit
A.
In
consideration of the representations, warranties, covenants and agreements
contained herein, and intending to be legally bound, the parties agree as
follows:
Section
1
The
Merger
1.1 The
Merger. Subject to the terms and conditions of this Agreement, at
the Effective Time, Merger Sub will be merged with and into the Company in
accordance with the provisions of the GBCC, whereupon the separate corporate
existence of Merger Sub will cease and the Company will continue as the
surviving corporation (the “Surviving Corporation”).
1.2 Closing;
Effective Time.
(a) The
closing of the Merger (the “Closing”) will take place at the offices of
Xxxxxx Xxxxxx Xxxxxxx LLP, 000 00xx Xxxxxx XX - Xxxxx 0000,
Xxxxxxx, XX 00000, at 10:00 a.m. (Atlanta, Georgia time) on a date to be agreed
between Parent and the Company, which date will be not later than the second
Business Day after the conditions set forth in Section 6 have been satisfied
or,
to the extent permitted by applicable Law, waived (other than those conditions
which by their terms are to be satisfied at the Closing, but subject to the
satisfaction or waiver of those conditions), or at such other place and on
such
other date as Parent and the Company may agree in writing. The date
on which the Closing occurs is referred to herein as the “Closing Date.”
(b) As
soon
as practicable after the Closing, Parent and Merger Sub will file, or cause
to
be filed, with the Secretary of State of the State of Georgia, a certificate
of
merger for the Merger (the “Certificate of Merger”), which certificate
will be in the form required by and executed in accordance with the applicable
provisions of the GBCC and in form and substance acceptable to
Parent. The Merger will become effective at the time the filing is
made or, if agreed to between Parent and the Company, at such later time or
date
as is set forth in the certificate of merger (the “Effective
Time”).
1.3 Effects
of the Merger. The Merger will have the effects set forth in the
applicable provisions of the GBCC.
1.4 Articles
of Incorporation and Bylaws. At the Effective Time, subject to
complying with Section 5.8, (a) the articles of
incorporation of the Surviving Corporation will be amended and restated in
their
entirety such that they are identical to the articles of incorporation of Merger
Sub as in effect immediately prior to the Effective Time, until amended in
accordance with the articles of incorporation and the GBCC (except that Article
I thereof will be amended in its entirety to read as follows: “The name of this
corporation is Microtek Medical Holdings, Inc.”), and (b) the bylaws of the Surviving
Corporation will be amended and restated in their entirety such that they are
identical to the bylaws of Merger Sub as in effect immediately prior to the
Effective Time, until amended in accordance with the bylaws, the Surviving
Corporation’s articles of incorporation and the GBCC.
1.5 Directors
and Officers of the Surviving Corporation. Merger Sub’s directors
immediately prior to the Effective Time will be the Surviving Corporation’s
directors until their respective successors are duly elected and qualified
or
appointed or until their earlier death, resignation or removal in accordance
with the articles of incorporation and the bylaws of the Surviving
Corporation. Merger Sub’s officers immediately prior to the Effective
Time will be the Surviving Corporation’s officers until their respective
successors are duly elected and qualified or appointed or until their earlier
death, resignation or removal in accordance with the articles of incorporation
and the bylaws of the Surviving Corporation.
1.6 Subsequent
Actions. If at any time after the Effective Time the Surviving
Corporation determines, in its sole discretion, that any actions 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 the Company or Merger Sub acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with,
the
Merger or otherwise to carry out this Agreement, then the Surviving
Corporation’s officers and directors will be authorized to take all actions
which may be necessary or desirable to vest all right, title or interest in,
to
and under such rights, properties or assets in the Surviving Corporation or
otherwise to carry out this Agreement.
Section
2
Conversion
of Shares
2.1 Conversion
of Shares.
(a) At
the
Effective Time, by virtue of the Merger and without any further action on the
part of the Company, Parent or Merger Sub, or any holder of their respective
shares of capital stock:
(i) Each
share of Company Common Stock issued and outstanding immediately prior to the
Effective Time (other than shares of Company Common Stock to be canceled under
Section 2.1(a)(iii) and any Dissenting Shares), together with the associated
Rights, will be converted automatically into the right to receive $6.30 in
cash
(the “Merger Consideration”), without interest
thereon.
2
(ii) Each
share of capital stock of Merger Sub issued and outstanding immediately prior
to
the Effective Time will be converted into one fully paid and nonassessable
common share, no par value, of the Surviving Corporation.
(iii) Each
share of Company Common Stock, together with the associated Rights, issued
and
outstanding immediately prior to the Effective Time and directly held by an
Acquired Company, Parent or Merger Sub (other than those held by the Company
in
a fiduciary or representative capacity) will be canceled and extinguished and
no
payment will be made with respect thereto. Except where the context
otherwise requires, all references hereinafter to the shares of Company Common
Stock will be deemed to include the associated Rights.
(b) If,
after
the date of this Agreement and at or prior to the Effective Time, the
outstanding shares of Company Common Stock are changed into a different number
of shares by reason of any reclassification, recapitalization, split-up, stock
split, subdivision, combination or exchange of shares or readjustment, or any
dividend payable in shares or other securities is declared thereon or rights
issued in respect thereof with a record date within that period, or any similar
event occurs, then the Merger Consideration will be proportionately and
appropriately adjusted to reflect the event.
(c) From
and
after the Effective Time, all shares of Company Common Stock converted under
Section 2.1(a)(i) will no longer be outstanding and will automatically be
cancelled and retired, and each holder of shares of Company Common Stock so
converted will cease to have any rights with respect thereto, except the right
to receive the Merger Consideration (without interest thereon) upon the
surrender of shares in accordance with Section 2.2.
2.2 Paying
Agent.
(a) Prior
to
the Effective Time, Parent will designate a bank or trust company reasonably
acceptable to the Company to act as a paying agent under this Agreement (the
“Paying Agent”). As soon as reasonably practicable after the
Effective Time, Parent will deposit or cause to be deposited with the Paying
Agent, for the benefit of the holders of shares of Company Common Stock, an
amount of cash sufficient to deliver to the holders thereof the Merger
Consideration required to be paid under Section 2.1. All cash
deposited with the Paying Agent is referred to in this Agreement as the
“Fund.”
(b) As
soon
as reasonably practicable after the Effective Time, Parent will instruct the
Paying Agent to mail to each Person who was, as of the Effective Time, a holder
of shares of Company Common Stock, a letter of transmittal and instructions
in
customary form and containing such provisions as Parent may reasonably specify
(including a provision confirming that delivery will be effected, and risk
of
loss and title to shares of Company Common Stock will pass, only upon proper
surrender of shares to the Paying Agent). Upon proper delivery to the
Paying Agent of (i) certificates (in the case of shares of Company Common Stock
represented by certificates) together with the associated letter of transmittal,
duly executed and completed in accordance with the instructions thereto or
(ii)
an “agent’s message” (in the case of shares of Company Common Stock not
represented by certificates) or such other evidence, if any, of transfer as
the
Paying Agent may reasonably request, the holder of the certificates or
uncertificated shares will be entitled to receive in exchange therefor the
Merger Consideration to which the holder is entitled under this Section
2. Until surrendered as provided in this Section 2.2(b), each share
of Company Common Stock will be deemed after the Effective Time to represent
only the right to receive upon surrender the Merger Consideration.
3
(c) If
any
portion of the Merger Consideration is to be paid to a Person other than the
Person in whose name the shares of Company Common Stock is registered, it will
be a condition to the payment that:
(i) (1)
in
the case of certificated shares, the certificate is properly endorsed or is
otherwise in proper form for transfer and (2) in the case of uncertificated
shares, the shares are properly transferred; and
(ii) the
Person requesting the payment either (1) pays to the Paying Agent any transfer
or other Taxes required as a result of the payment to a Person other than the
registered holder of the shares or (2) establish to the Paying Agent’s
satisfaction that all transfer or other Taxes have been paid or are not payable.
(d) At
the
Effective Time, the Company’s share transfer books will be closed, and there
will be no further registration of transfers on the Surviving Corporation’s
share transfer books of the shares of Company Common Stock that were outstanding
immediately prior to the Effective Time. If, after the Effective
Time, any shares of Company Common Stock are presented to the Surviving
Corporation for transfer, the shares will be cancelled against delivery of
the
Merger Consideration to the holder thereof as provided in this Section 2.2.
(e) If
any
certificate representing shares of Company Common Stock has been lost, stolen
or
destroyed, upon the making of an affidavit of that fact by the Person claiming
that the certificate to be lost, stolen or destroyed and, if required by Parent,
the posting by that Person of a bond in such reasonable amount as Parent may
direct as indemnity against any claim that may be made against it with respect
to the certificate, the Paying Agent will deliver in exchange for the lost,
stolen or destroyed certificate the Merger Consideration under this Section
2.
(f) Each
of
Parent and the Surviving Corporation will be entitled to deduct and withhold
from the consideration otherwise payable under this Section 2 such amounts
as it
is required to deduct and withhold with respect to the payment under the Code
or
any other applicable Law relating to the payment of Taxes. To the
extent that amounts are so withheld and paid over to the appropriate Taxing
Authority by Parent or the Surviving Corporation, the withheld amounts will
be
treated for all purposes of this Agreement as having been paid to the holder
of
shares of Company Common Stock in respect of which the deduction and withholding
was made by Parent or the Surviving Corporation.
4
2.3 Investment
and Termination of Fund.
(a) The
Paying Agent will invest the Fund as directed by Parent. Any interest
and other income resulting from the investments will be paid to and be income
of
Parent.
(b) Any
portion of the Fund (including earnings thereon) which remains undistributed
to
the holders of any shares of Company Common Stock for 12 months after the
Effective Time will be delivered to Parent, upon demand, and any holder of
shares of Company Common Stock who has not theretofore complied with this
Section 2 will thereafter look only to Parent for payment of the holder’s claim
to the Merger Consideration in accordance with this Section 2.
(c) None
of
Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent
will be liable to any Person in respect of any portion of the Fund which is
properly delivered to a public official under any applicable abandoned property,
escheat or similar Law. If any shares of Company Common Stock are not
surrendered prior to the third anniversary of the Effective Time (or immediately
prior to such earlier date on which any Merger Consideration would otherwise
escheat to or become the property of any Authority), then such Merger
Consideration will, to the extent permitted by applicable Law, become the
property of Parent, free and clear of all claims or interests of any Person
previously entitled thereto.
2.4 Dissenting
Shares.
(a) Notwithstanding
anything in this Agreement to the contrary, shares of Company Common Stock
that
are outstanding immediately prior to the Effective Time and the holders of
which
have perfected and not withdrawn or lost their dissenters’ rights in accordance
with Sections 14-2-1301 through 14-2-1332 of the GBCC (“Dissenting
Shares”) will be paid for by Parent in accordance with Sections 14-2-1301
through 14-2-1332 of the GBCC, except that if any holder fails to perfect or
otherwise waives, withdraws or loses the right to receive payment of the fair
value of its shares of Company Common Stock under Sections 14-2-1301 through
14-2-1332 of the GBCC, the right of that holder to be paid the fair value of
its
shares of Company Common Stock will cease and the subject shares will be deemed
converted as of the Effective Time into the right to receive the Merger
Consideration as provided in this Section 2.
(b) The
Company will give Parent (i) prompt notice of any written demands for fair
value
received by the Company, withdrawals of such demands, and any other related
instruments served under Sections 14-2-1301 through 14-2-1332 of the GBCC and
received by the Company and (ii) the opportunity to direct all negotiations
and
proceedings with respect to demands for fair value under the
GBCC. The Company will not, except with the prior written consent of
Parent, voluntarily make any payment with respect to any demands for fair value
for Dissenting Shares or offer to settle, or settle, any such
demands.
5
2.5 Company
Share Plans.
(a) The
Company Board will take all action necessary such that, at the Effective Time,
each option to purchase shares of Company Common Stock outstanding under any
Company Share Plan (each, a “Company Stock Option”), whether or not
vested or exercisable, will be canceled and converted into the right to receive
an amount in cash equal to the product of (i) the excess, if any, of the Merger
Consideration over the applicable exercise price of the Company Stock Option
multiplied by (ii) the total number of Company Common Shares subject to the
Company Stock Option (whether or not vested or exercisable). As
promptly after the Effective Time as reasonably practicable, the Parent will
pay
or cause to be paid the foregoing amount to each holder of a Company Stock
Option.
(b) Each
Company Common Share outstanding as of the Effective Time which was granted
under a Company Share Plan and which is subject to a risk of forfeiture
(“Company Restricted Shares”) will be deemed fully vested as of the
Effective Time in accordance with the terms of the applicable plan and, in
full
settlement thereof (net of applicable withholding in accordance with the
Company’s practices prior to the date of this Agreement), will be converted into
the right to receive the Merger Consideration in accordance with Section
2. To the extent that amounts are withheld from the consideration
otherwise payable to holders of Company Restricted Shares, the withheld amounts
will be treated for all purposes of this Agreement as having been paid to the
holders in respect of which the withholding was made.
(c) Prior
to
the Effective Time, the Company will (i) adopt such resolutions or take such
other actions as may be required to effect the foregoing provisions of this
Section 2.5, and (ii) take all steps necessary to cause any dispositions of
shares of Company Common Stock or other securities (including options and any
other derivative securities) resulting from the Merger or the other transactions
contemplated by this Agreement by each officer or director or the Company who
is
subject to the reporting requirements of Section 16(a) of the Exchange Act
to be
exempt under Rule 16b-3 promulgated thereunder, with all such steps to be taken
in accordance with the requirements of the Exchange Act.
(d) Effective
upon the date of this Agreement, the Company Board will adopt appropriate
resolutions and take all other actions necessary and appropriate to provide
each
participant’s outstanding right to purchase shares of Company Common Stock under
the Company's Employee Stock Purchase Plan (the “ESPP”) will terminate on
the day immediately prior to the day on which the Effective Time occurs, except
that all amounts allocated to each participant’s account under the ESPP as of
such date will thereupon be used to purchase from the Company whole shares
of
Company Common Stock at the applicable price determined under the terms of
the
ESPP for then outstanding offering periods using such date as the final purchase
date for each such offering period, and the ESPP will terminate immediately
following the purchase of Company Common Stock on the date prior to the day
on
which the Effective Time occurs. The Company Board will not take any
action that would allow any Company Personnel to begin participating in the
ESPP
or that would permit any existing participant to increase his or her
participation in the ESPP.
6
Section
3
Representations
and Warranties of the Company
Except
as
set forth in the disclosure schedule delivered to Parent concurrently with
the
execution of this Agreement (the “Company Disclosure Schedule”), the
Company hereby represents and warrants to Parent and Merger Sub as set forth
in
this Section 3. The Company Disclosure Schedule is divided into
sections which correspond to the sections of this Agreement. The
sections of the Company Disclosure Schedule relate only to the representations
and warranties in the sections of this Agreement to which they correspond and
not to any other representation or warranty in this Agreement, except to the
extent that (a) a section of the Company Disclosure Schedule specifically refers
to another section thereof by specific cross reference or (b) it is readily
apparent from the text of a particular disclosure that the disclosure also
applies to another representation or warranty.
3.1 Organization,
Standing and Corporate Power.
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the state of Georgia and has all requisite corporate power
and
authority to conduct its business as it is now being conducted and to own,
lease
and operate its properties and assets. The Company is duly qualified
or licensed to do business as a foreign entity in good standing in each
jurisdiction where the nature of its business or the ownership, leasing or
operation of its assets requires such licensing or qualification, except where
the failure to be so qualified or licensed has not had and would not reasonably
be expected to have a Company Material Adverse Effect.
(b) Section
3.1(b) of the Company Disclosure Schedule lists each Company
Subsidiary and specifies for each its form and jurisdiction of
organization. Except for the Company Subsidiaries so disclosed and
the Persons listed on Section 3.1(b) of the Company Disclosure
Schedule, the Company does not directly or indirectly hold any capital stock
or other equity securities of any Person or have any direct or indirect
ownership interest in any business. Each Company Subsidiary is a
legal entity duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all requisite power and
authority to conduct its business as it is now being conducted and to own,
lease
and operate its properties and assets. Each Company Subsidiary is
duly qualified or licensed to do business as a foreign entity in good standing
in each jurisdiction where the nature of its business or the ownership, leasing
or operation of its assets requires such licensing or qualification, except
where the failure to be so qualified or licensed has not had and would not
reasonably be expected to have a Company Material Adverse Effect.
(c) The
Company has made available to Parent correct and complete copies of the
Governing Documents of each Acquired Company, each as in full force and effect
as of the date hereof. No Acquired Company is in Breach of its
Governing Documents.
7
3.2 Capitalization.
(a) The
authorized capital stock of the Company consists solely of 100,000,000 shares
of
Company Common Stock, $.001 par value per share, and 10,000,000 shares of
preferred stock, no par value per share. At the close of business on
the date of this Agreement, (i) 43,493,447 shares of Company Common Stock are
issued and outstanding, of which no shares of Company Common Stock are issued
as
“restricted shares” and subject to forfeiture; (ii) 2,172,354 shares of Company
Common Stock are issued and held by the Company in its treasury; and (iii)
no
other shares of capital stock or other voting securities of the Company are
issued or outstanding. All outstanding shares of Company Common Stock
are duly authorized, validly issued, fully paid and nonassessable and free
of
preemptive rights. No Acquired Company has issued any Voting
Debt.
(b) Section
3.2(b) of the Company Disclosure Schedule sets forth a list of
all compensation plans or other compensation arrangements under which the
Company is authorized to issue or has issued Company Common Stock or options
or
other rights to acquire Company Common Stock (the “Company Share Plans”),
specifying for each plan, as of the close of business on the date of this
Agreement, the number of shares of Company Common Stock issued thereunder
(including shares subject to forfeiture or other restrictions), the number
of
shares of Company Common Stock subject to outstanding options granted thereunder
and the number of shares of Company Common Stock available for future grant
thereunder.
(c) Section
3.2(c) of the Company Disclosure Schedule sets forth, as of
the close of business on the date of this Agreement, a list of all outstanding
options, restricted stock grants and other stock awards granted by the Company
(the “Company Share Awards”), specifying for each award (as applicable)
the holder thereof, the type of award, the Company Share Plan under which the
award was granted, the number of shares of Company Common Stock subject to
the
award, the grant date, the exercise price and the vesting
schedule. All Company Common Stock which has been or may be issued in
connection with the Company Share Awards is or will be (when issued in
accordance with the terms thereof) duly authorized, validly issued, fully paid
and nonassessable and free of preemptive rights. Except for the
Company Share Awards, the Company Share Plans and the Rights Agreement, there
are no options, warrants, calls, subscriptions, convertible securities, rights
(including preemptive rights), Contracts, understandings or arrangements of
any
character under which the Company is or may become obligated to issue, sell,
exchange, transfer, repurchase, redeem or otherwise acquire any shares of
Company capital stock or any Voting Debt. Except for the Company
Share Plans and the Company Share Awards, there are no outstanding or authorized
stock appreciation, phantom stock, profit participation or similar rights with
respect to the Company.
(d) Except
as
set forth in Section 3.2(d) of the Company Disclosure
Schedule, no Person other than an Acquired Company holds, of record or
beneficially, any equity securities of or other ownership interest in a Company
Subsidiary. All outstanding equity securities of the Company
Subsidiaries are duly authorized, validly issued, fully paid and nonassessable
and are free of Encumbrances, preemptive rights or any other third party rights
other than Permitted Encumbrances. There are no options, warrants,
calls, subscriptions, convertible securities, rights (including preemptive
rights), Contracts, understandings or arrangements of any character under which
any Company Subsidiary is or may become obligated to issue, sell, exchange,
transfer, repurchase, redeem or otherwise acquire any shares of equity
securities or any Voting Debt. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation or similar rights with
respect to any Company Subsidiary.
8
(e) There
are
no shareholder agreements, voting trusts or other agreements or understandings
to which an Acquired Company is a party relating to the voting or disposition
of
any shares of the capital stock of an Acquired Company or granting to any person
or group of persons the right to elect, or to designate or nominate for
election, a director to the board of directors of an Acquired
Company.
3.3 Authority;
Company Board Approval; No Breach.
(a) The
Company has all necessary corporate power and authority to execute and deliver
this Agreement and, subject to the adoption or approval of this Agreement by
the
affirmative vote of the holders of not less than a majority of the outstanding
shares of Company Common Stock as of the record date for the Shareholder Meeting
(the “Required Shareholder Vote”), to complete the Merger and the other
transactions contemplated by this Agreement. The Company and the
Company Board have taken all action required by Law, the Company’s Governing
Documents and otherwise to authorize the Company’s execution, delivery and
performance of this Agreement, subject to receipt of the Required Shareholder
Vote. The Company has duly and validly executed and delivered this
Agreement and, assuming the due authorization, execution and delivery of this
Agreement by Parent and Merger Sub, this Agreement constitutes the legal and
valid binding obligation of the Company enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to creditors’ rights generally and to general
principles of equity (regardless of whether enforceability is considered in
a
proceeding in equity or at law).
(b) The
Company Board, at a meeting duly called and held prior to the execution of
this
Agreement, duly and unanimously adopted resolutions (i) approving and declaring
advisable this Agreement and the transaction contemplated hereby (which
approvals were made in accordance with the GBCC); (ii) determining that the
terms of the Merger are advisable and in the best interests of the Company
and
its shareholders; and (iii) recommending that the Company’s shareholders adopt
or approve this Agreement. The Company Board has received from its
financial advisor, X.X. Xxxxxxx & Sons (“Xxxxxxx”), an opinion to the
effect that, as of the date of this Agreement, the Merger Consideration is
fair
to the holders of Company Common Stock from a financial point of view (the
“Fairness Opinion”), and the Company has provided to Parent (or, if not
currently available, will provide to Parent promptly following the Company’s
receipt) a signed copy of the Fairness Opinion.
(c) The
only
vote of the Company’s shareholders required to adopt or approve this Agreement
and approve the Merger is the Required Shareholder Vote. No other
vote of the holders of any class or series of capital stock of the Company
is
required by Law, the Company’s Governing Documents or otherwise in order to
complete the Merger and the other transactions contemplated by this Agreement.
9
(d) As
of the
date of this Agreement, no Acquired Company or any Representative of an Acquired
Company has granted any waiver to or released any third party under any
standstill or similar agreement.
(e) Except
as
set forth in Section 3.3(e) of the Company Disclosure
Schedule, neither the execution and delivery of this Agreement nor the
completion or performance of the transactions contemplated hereby
will: (i) Breach any provision of the Governing Documents, or any
resolution adopted by the governing body, of an Acquired Company; (ii) Breach
any provision of, or give any Person a right to declare a default or exercise
any remedy under, or accelerate the maturity or performance of, or payment
under, or to cancel, terminate or modify, any Contract to which an Acquired
Company is a party or by which it is bound; (iii) result in the creation or
imposition of an Encumbrance upon or in relation to any asset of an Acquired
Company; (iv) assuming the Consents referred to in Section 3.4 are obtained,
violate or otherwise Breach, or give any Authority the right to challenge any
of
the transactions contemplated by this Agreement or exercise any remedy or obtain
any relief under, any applicable Law or Order; or (v) cause the suspension
or
revocation of any material Permit necessary for any Acquired Company to conduct
its business as currently conducted, except in the case of clauses (ii) through
(iv), any consequences that would not, individually or in the aggregate,
reasonably be expected to (x) be material to the Acquired Companies taken
as a whole, (y) impair in any material respect the Company’s ability to perform
its obligations under this Agreement or (z) prevent or materially delay the
completion of the Merger or the other transactions contemplated by this
Agreement.
(f) Based
in
part on the representations of Parent and Merger Sub set forth in Section 4,
no
“fair price,” “moratorium,” “control share acquisition” or other similar
anti-takeover statute or regulation (each, a “Takeover Statute”)
or any anti-takeover provision in the Company's articles of incorporation and
bylaws is, or at the Effective Time will be, applicable to the transactions
contemplated by this Agreement. Based in part on the representations
of Parent and Merger Sub set forth in Section 4, the Company Board has taken
or
caused to be taken all action so that neither Parent nor Merger Sub will be
prohibited from entering into a “business combination” with the Company or any
of its Affiliates as an “interested shareholder” (in each case as such term is
used in Sections 14-2-1110 or 14-2-1131 of the GBCC, as applicable) as a result
of the execution of this Agreement or the consummation of the transactions
contemplated by this Agreement.
(g) The
Company Board has taken all necessary action to render the First Amended and
Restated Shareholder Protection Rights Agreement, dated as of December 20,
2006,
between the Company and Computershare Investor Services, LLC as Rights Agent
(the “Rights Agreement”), inapplicable to the transactions contemplated
by this Agreement. The Company has taken all necessary action with
respect to all of the outstanding Rights so that (i) none of Parent or any
of
its Affiliates or Associates (each as defined in the Rights Agreement) will
be
deemed an Acquiring Person (as defined in the Rights Agreement), none of a
Stock
Acquisition Date, Flip-in Date, Flip-Over Transaction or Event or Separation
Time (each as defined in the Rights Agreement) will occur, and the rights issued
or issuable pursuant to the Rights Agreement (the “Rights”) will not
separate from the shares of Common Stock, in each case as a result of the
execution of this Agreement or the consummation of the transactions contemplated
by this Agreement; (ii) the holders of the Rights will have no rights under
the
Rights or the Rights Agreement in connection with the execution of this
Agreement or the consummation of the transactions contemplated by this
Agreement; and (iii) upon Closing, all Rights under the Rights Agreement will
expire.
10
3.4 Consents
and Filings. No Acquired Company is required by Law or Contract
to give any notice to, make any filing with, or obtain any Consent from any
Authority or other Person in connection with the Company’s execution, delivery
or performance of this Agreement, except
(a) the
filing of a pre-merger notification and report form by the Company under the
HSR
Act and the termination or expiration of the waiting period required thereunder;
(b) all
necessary or advisable filings under any other applicable competition, merger
control, antitrust or similar laws;
(c) the
filing with the SEC of the Proxy Statement and such reports under the Exchange
Act as may be required in connection with this Agreement;
(d) the
filing of the Certificate of Merger;
(e) all
required filings by the Company with NASDAQ;
(f) the
Required Shareholder Vote;
(g) the
Consents listed in Section 3.3(e) of the Company Disclosure
Schedule; and
(h) such
other notices, filings and Consents that, if not obtained or made, would not,
individually or in the aggregate, reasonably be expected to (i) be material
to
the Acquired Companies taken as a whole, (ii) impair in any material respect
the
Company’s ability to perform its obligations under this Agreement or (iii)
prevent or materially delay the completion of the Merger or the other
transactions contemplated by this Agreement.
3.5 Company
SEC Documents; Financial Statements; Undisclosed
Liabilities.
(a) Since
December 31, 2003, the Company has timely filed with the SEC all reports,
schedules, forms, statements and other documents (including exhibits and other
information incorporated therein) that it was required to file under the
Securities Act or the Exchange Act (and including all reports, schedules, forms,
statements and other documents that the Company may file subsequent to the
date
of this Agreement, the “Company SEC Documents”). As of their
respective filing dates (or, to the extent amended or superseded by a filing
prior to the date hereof, on the date of the subsequent filing) and, as
applicable, on the date when declared effective, the Company SEC Documents
(i)
complied and, with respect to any Company SEC Document filed after the date
of
this Agreement, will comply in all material respects with the applicable
requirements of the Securities Act, the Exchange Act and SOX and (ii) did not
and, with respect to any Company SEC Document filed after the date of this
Agreement, will not contain any untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were
made, not misleading. Since December 31, 2003, the Company has not
received from the SEC or the SEC staff any comment letters or other
correspondence in relation to the Company SEC Documents, except for the comment
letters and correspondence that have been made available to
Parent. None of the Company Subsidiaries are, or at any time since
December 31, 2003, have been, subject to the reporting requirements of the
Exchange Act.
11
(b) The
financial statements (including, in each case, any related notes thereto)
included or incorporated by reference in the Company SEC Documents:
(i) comply
as
to form in all material respects with the applicable accounting requirements
and
the published rules and regulations of the SEC with respect thereto;
(ii) have
been
prepared in accordance with GAAP applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto and except,
in
the case of unaudited statements, as permitted by the rules and regulations
of
the SEC); and
(iii) fairly
present in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments, none of which were or will be material).
(c) Except
as set forth in Section 3.5(c) of the Company Disclosure Schedule, none
of the Acquired Companies has any Liabilities (whether or not required to be
disclosed on a balance sheet prepared in accordance with GAAP) other than
Liabilities (i)accrued or reserved against in the Latest Company Balance Sheet;
(ii) incurred in the Ordinary Course of Business since the date of the Latest
Company Balance Sheet (none of which Liabilities under this clause (ii) have
had
or would reasonably be expected to have a Company Material Adverse Effect);
(iii) that have not had and would not reasonably be expected to have a Company
Material Adverse Effect; (iv) to Parent, Merger Sub, Xxxxxxx and the Company’s
other advisors in connection with this Agreement; or (v) arising under any
Contracts to which an Acquired Company is a party or by which it is bound (and
none of the foregoing under this clause (v) have had or would reasonably be
expected to have a Company Material Adverse Effect).
12
3.6 Controls
and Procedures.
(a) No
Acquired Company is a party to any joint venture, off balance sheet partnership
or similar Contract (including any Contract relating to any transaction or
relationship between or among any of the Acquired Companies, on the one hand,
and any unconsolidated affiliate, on the other hand), or any “off balance sheet
arrangements” (as defined in Item 303(a) of SEC Regulation S-K), where the
purpose of the Contract is to avoid disclosure of any material transaction
involving, or any material Liabilities of, any Acquired Company in the Company’s
published financial statements or other Company SEC Documents.
(b) The
Company has designed and maintains “disclosure controls and procedures” and
“internal controls over financial reporting” (as those terms are defined in
Rules 13a-15 and 15d-15 under the Exchange Act) as required by Rule 13a-15
of
the Exchange Act. The Company’s disclosure controls and procedures
are reasonably designed to ensure that all information (both financial and
non-financial) required to be disclosed by the Company in the reports that
it
files or furnishes under the Exchange Act is recorded, processed, summarized
and
reported within the time periods specified in the rules and forms of the SEC,
and that all such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required
disclosure and to make the certifications required under Sections 902 and 906
of
SOX.
(c) Since
December 31, 2003, no attorney representing an Acquired Company, whether or
not
employed by an Acquired Company, has reported to the Company Board or any
committee thereof, or to any director or officer of the Company, any evidence
of
a material violation of securities Laws, Breach of fiduciary duty or similar
violation by an Acquired Company or any of its officers, directors, employees
or
agents.
3.7 Information
Supplied. None of the information supplied or to be
supplied by or on behalf of the Company for inclusion or incorporation by
reference in the Proxy Statement will, at the date it is first mailed to the
Company’s shareholders and at the time of the Shareholder Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in
light of the circumstances under which they are made, not
misleading. Notwithstanding the foregoing, the Company is not making
any representation or warranty with respect to statements made or incorporated
by reference in the Proxy Statement based on information supplied, or required
to be supplied, by or on behalf of Parent or Merger Sub (or their respective
Affiliates) specifically for inclusion or incorporation by reference in the
Proxy Statement. The Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the rules and
regulations promulgated thereunder.
3.8 Absence
of Certain Changes. Except as set forth in Section 3.8
of the Company Disclosure Schedule or as otherwise permitted by this
Agreement, since December 31, 2006,
13
(a) the
Acquired Companies have owned and operated their assets, properties and
businesses in the Ordinary Course of Business;
(b) no
event
has occurred and no circumstance has developed that has had or would reasonably
be expected to have a Company Material Adverse Effect; and
(c) no
Acquired Company has taken or failed to take any action that would, if taken
or
failed to be taken after the date hereof, Breach paragraph (ii), (iii), (iv)(1),
(vii), (ix), (xv), or (xvi) of Section 5.1.
3.9 Proceedings.
(a) Section
3.9(a) of the Company Disclosure Schedule sets forth a list of all
Proceedings pending or, to the Company’s knowledge, threatened by, against or
otherwise relating to an Acquired Company or any director, officer, employee
or
other agent of an Acquired Company (but only in their capacity as such) which
(i) involves an Authority; (ii) involves an amount in controversy in excess
of
$100,000 (or the equivalent amount in local currency); or (iii) seeks injunctive
or other equitable relief. None of the matters set forth in Section
3.9(a) of the Company Disclosure Schedule have had or would reasonably be
expected to have a Company Material Adverse Effect.
(b) No
Acquired Company is, and none of the assets of an Acquired Company are, subject
to any Order that has not been satisfied, and no director, officer, employee
or
other agent of an Acquired Company is subject to any Order that has not been
satisfied relating to an Acquired Company or any assets of an Acquired
Company.
3.10 Compliance
with Laws; Permits; Regulatory Matters.
(a) Without
limiting or otherwise affecting the scope of the Company’s other representations
and warranties in this Agreement, since December 31, 2003, (i) no Acquired
Company has Breached any applicable Law and (ii) no Person has alleged in
writing to an Acquired Company (or, to the Company’s knowledge, otherwise
alleged) that an Acquired Company has or may have Breached any applicable Law,
except for any actual or alleged Breaches that have not had and would not
reasonably be expected to have a Company Material Adverse
Effect.
(b) Each
Acquired Company holds all material Permits necessary to own and operate its
businesses and assets in compliance with applicable Law, and each such Permit
is
in full force and effect. With respect to each such Permit, except as
set forth in Section 3.3(e) of the Company Disclosure Schedule, (i) no
event has occurred and no circumstance exists that would reasonably be expected
to (with or without notice or lapse of time) constitute or result directly
or
indirectly in a revocation, cancellation, termination or material Breach or
modification thereof; and (ii) no Person has alleged or threatened in writing
to
an Acquired Company (or, to the Company’s knowledge, otherwise alleged or
threatened) any revocation, cancellation, termination or material Breach or
modification thereof. No Person has alleged in writing (or, to the
Company’s knowledge, otherwise alleged) that an Acquired Company is required to
hold a material Permit that it does not hold.
14
(c) Except
as
set forth in Section 3.10(c) of the Company Disclosure Schedule,
each product that is currently being manufactured, distributed or sold by or
on
behalf of an Acquired Company, and each product candidate that is currently
being developed by an Acquired Company, is being, and since December 31, 2003,
has been, developed, tested, manufactured, labeled, stored, distributed and
marketed, as applicable, in compliance (or conformance in the case of guidances)
in all material respects with the following Laws, to the extent such Laws are
applicable (i) the Federal Food, Drug and Cosmetic Act and applicable
regulations and guidances issued thereunder (including all requirements relating
to quality systems, good manufacturing practice, good laboratory practice and
good clinical practice); (ii) the Federal Insecticide, Fungicide and Rodenticide
Act and applicable regulations and guidances issued thereunder; (iii) the EU
Medical Device Directive, the EU Active Implantable Medical Device Directive
and
the EU In-vitro Diagnostic Device Directive; and (iv) the Canada Food and Drugs
Act and applicable regulations and guidances issued thereunder.
(d) Except
as
set forth in Section 3.10(d) of the Company Disclosure Schedule,
all manufacturing operations conducted by or for the benefit of an Acquired
Company are being, and since December 31, 2003, have been, conducted in
compliance in all material respects with the FDA’s good manufacturing practice
and quality systems regulations to the extent applicable to such manufacturing
operations.
(e) No
Acquired Company and, to the Company’s knowledge, no officer, key employee or
agent of an Acquired Company has been convicted of any crime, has been excluded
under 42 U.S.C. Section 1320a-7 or any similar applicable Law or has engaged
in
any conduct that would reasonably be expected to result in exclusion under
42
U.S.C. Section 1320a-7 or any similar applicable Law. No Acquired
Company and, to the Company’s knowledge, no officer of an Acquired Company, has
been subject to or proposed for debarment, suspension or other ineligibility
by
any Authority in connection with the business of any Acquired Company.
(f) Except
as
set forth in Section 3.10(f) of the Company Disclosure Schedule:
(i) since
December 31, 2003, no Person has alleged in writing to an Acquired Company
(or,
to the Company’s knowledge, has otherwise alleged) that there is any material
hazard or defect in design, materials, manufacture or workmanship relating
to
any product manufactured, distributed or sold by or on behalf of an Acquired
Company;
(ii) since
December 31, 2003, (1)no Authority has ordered, and no Acquired Company has
voluntarily conducted, a recall of any product manufactured, distributed or
sold
by or on behalf of an Acquired Company, and (2)no such products have been
subject to 21 CFR Part 803–Medical Device Reporting requirements or the
equivalent under other applicable Law; and
15
(iii) to
the
Company’s knowledge, there are no facts or circumstances that would reasonably
be expected to result in a recall obligation or a duty to warn customers of
any
defects in any such products.
(g) Except
as
set forth on Section 3.10(g) of the Company Disclosure
Schedule, since December 31, 2003, there has not been any and, to the
Company’s knowledge, there are no threatened, Proceedings by the FDA or any
other Authority relating to an Acquired Company’s development, testing,
manufacture, distribution or sale of products. To the Company’s
knowledge, since December 31, 2003, no employees or agents of an Acquired
Company have made an untrue statement of material fact to any Authority or
failed to disclose a material fact required to be disclosed to any Authority,
in
connection with reports or product applications relating to any product
developed, tested, manufactured, distributed, or sold by an Acquired Company.
3.11 Tax
Matters.
(a) The
Company has made available to Parent correct and complete copies of all income
Tax Returns filed by an Acquired Company since December 31, 2003, and all audit
reports covering the same period with respect to any material Taxes due from
or
with respect to an Acquired Company. Each Acquired Company has duly
and timely filed (taking into account any extension of time within which to
file) all material Tax Returns that it was required to file under applicable
Law, and all such Tax Returns were correct and complete and in material
compliance with applicable Law when filed. Each Acquired Company has
timely and properly paid (or the Company has paid on each Acquired Company’s
behalf) all material Taxes required to be paid under applicable Law, whether
or
not disputed and whether or not shown to be due and payable on any Tax Return,
other than Taxes which currently are being contested in good faith by
appropriate Proceedings and for which adequate reserves, as applicable, have
been established in the Company’s financial statements prepared in accordance
with GAAP. The most recent financial statements included in the
Company SEC Documents reflect an adequate (as determined pursuant to GAAP)
reserve for all Taxes payable by the Acquired Companies for all Taxable periods
and portions thereof through the date of such financial
statements. Since December 31, 2006, no Acquired Company has incurred
any Liability for Taxes arising from “extraordinary gains or losses” (as such
term is defined under GAAP) outside the Ordinary Course of Business.
(b) Except
as
set forth in Section 3.11(b) of the Company
Disclosure Schedule:
(i) no
Acquired Company is subject to any open audit, inquiry or other Proceeding
in
relation to Taxes or Tax Returns, and, to the Company’s knowledge, no such
audit, inquiry or other Proceeding is scheduled or
threatened;
(ii) the
Company has not, since December 31, 2003, undergone an “ownership change” as
such term is defined in Section 382(g) of the Code; and
16
(iii) no
elections have been made for an Acquired Company under Section 301.7701-3 of
the
Code (or any similar provision of any other applicable Law).
3.12 Employment
Matters.
(a) Since
December 31, 2003, no Acquired Company has materially Breached any applicable
Law concerning employment, employment practices or the calculation and payment
of wages (including all applicable Laws concerning terms and conditions of
employment, overtime, hours of work, termination, equal employment opportunity,
discrimination, disability rights or benefits, affirmative action, employee
leave issues, child labor, immigration, health and safety, plant closures and
layoffs, workers’ compensation, unemployment, the payment of social security and
other employment related Taxes and labor relations and unfair labor practices),
and no Person has alleged in writing to an Acquired Company (or, to the
Company’s knowledge, otherwise alleged) that an Acquired Company has or may have
materially Breached any such Law.
(b) Since
December 31, 2003, there have been no actual or, to the Company’s knowledge,
threatened material work stoppages, slowdowns, lockouts, labor strikes or other
material labor disputes involving any employees of an Acquired
Company. To the Company’s knowledge, since December 31, 2003, there
has been no attempt to form any labor union, labor organization, trade union,
works council or similar organization or association of employees in relation
to
an Acquired Company.
(c) Except
as
set forth in Section 3.12(c) of the Company Disclosure
Schedule: (i) no Acquired Company is a party to, bound by or subject to (and
no assets or properties of an Acquired Company are bound by or subject to)
any
labor agreement, collective bargaining agreement, work rules or practices,
or
any other labor-related agreements or arrangements with any labor union, labor
organization, trade union or works council; (ii) there are no labor agreements,
collective bargaining agreements, work rules or practices, or any other
labor-related agreements or arrangements that pertain to any of the employees
of
an Acquired Company; and (iii) no employees of an Acquired Company are
represented by any labor union, labor organization, trade union or works council
with respect to their employment by an Acquired Company.
3.13 Employee
Benefits.
(a) Section
3.13(a) Company Disclosure Schedule sets forth a list of each
Company Plan. Correct and complete copies of each Company Plan,
together with any current summary plan description, summary of material
modification, IRS Form 5500 for the last three applicable plan years, the most
recent IRS determination letter or opinion letter (as applicable), any trust
agreement or insurance contract forming a part of such material Company Plans,
any administrative and investment services contracts and all amendments thereto,
have been made available to Parent.
17
(b) Neither
the Company nor any ERISA Affiliate has ever contributed to or participated
in
any “multiemployer plan” within the meaning of Section 3(37) of
ERISA. No employer other than the Company or an ERISA Affiliate is
permitted to participate or participates in any Company Plans. All
Company Plans are in material compliance with, to the extent applicable, ERISA
and the Code, and the rules and regulations promulgated
thereunder. Each Company Plan that is subject to ERISA (the “ERISA
Plans”) and that is also an “employee pension benefit plan” within the
meaning of section 3(2) of ERISA intended to be qualified under Section 401(a)
of the Code has received a favorable determination letter from the IRS or has
applied to the IRS for such favorable determination letter within the applicable
remedial amendment period under Section 401(b) of the Code (or, alternatively,
if such plan is maintained pursuant to the adoption of a master or prototype
plan document, the IRS has issued an opinion letter to the effect that the
form
of the master or prototype plan document is acceptable for the implementation
of
a qualified retirement plan), and to the Company’s knowledge there are no
circumstances likely to result in the loss of the qualification of such plan
under Section 401(a) of the Code. There is no pending or, to the
Company’s knowledge, threatened Proceeding relating to any Company Plan other
than ordinary and usual claims for benefits thereunder. To the
Company’s knowledge, neither the Company nor any ERISA Affiliate has engaged in
a transaction with respect to any ERISA Plan that, assuming the taxable period
of such transaction expired as of the date of this Agreement, would subject
Company or any ERISA Affiliate to a Tax or penalty imposed by either Section
4975 of the Code or Section 502(i) of ERISA.
(c) None
of
the Company Plans is subject to Title IV of ERISA or section 412 of the
Code. Neither the Company nor any ERISA Affiliate has merged with or
acquired substantially all of the assets of any Person that was or may become
subject to a Liability under Title IV of ERISA.
(d) Neither
the Company nor any ERISA Affiliate has any obligations for retiree health
and
life benefits under any ERISA Plan or collective bargaining agreement, except
as
required by Law.
(e) Except
as
set forth in Section 3.13(e) of the Company Disclosure
Schedule, neither the execution of this Agreement, nor shareholder approval
of this Agreement, nor the consummation of the transactions contemplated by
this
Agreement will (i) entitle any Company Personnel to severance pay or any
increase in severance pay upon any termination of employment after the date
of
this Agreement; (ii) accelerate the time of payment or vesting or result in
any
payment or funding (through a grantor trust or otherwise) of compensation or
benefits under, increase the amount payable or result in any other material
obligation pursuant to, any of the Company Plans; or (iii) limit or restrict
the
right of the Company, or, after the consummation of the transactions
contemplated by this Agreement, the Parent, to merge, amend or terminate any
of
the Company Plans.
(f) Except
as
set forth in Section 3.13(f) of the Company Disclosure
Schedule, all material Company Non-U.S. Plans, each of which is listed in
Section 3.13(f) of the Company Disclosure Schedule, are in
material compliance with all applicable Laws. The Company and the
ERISA Affiliates have no unfunded Liabilities with respect to any Company
Non-U.S. Plans that are not set forth in the consolidated balance sheets
included in or incorporated by reference into the Company SEC
Documents. There is no pending or, to the Company’s knowledge,
threatened Proceeding relating to any Company Non-U.S. Plans other than ordinary
and usual claims for benefits thereunder.
18
(g) Except
as
set forth in Section 3.13(g) of the Company Disclosure
Schedule, neither the Company nor any of its ERISA Affiliates has made or
committed to make any material increase in contributions or benefits under
any
Company Plan that would become effective either on or after the date of this
Agreement.
(h) Section
3.13(h) of the Company Disclosure Schedule sets forth the
maximum aggregate amount payable under the Company’s sale of business bonus
program in connection with the transactions contemplated by this Agreement.
(i) Except
as
set forth in Section 3.13(i) of the Company
Disclosure Schedule, no Acquired Company has made any payments, is obligated
to make any payments or is a party to any Contract covering any Person that
could obligate it to make an excess parachute payment or any other payment
that
is not fully deductible by the Acquired Company under Section 162(m) or Section
280G of the Code.
3.14 Properties
and Assets.
(a) Section
3.14(a) of the Company Disclosure Schedule lists all real
property currently owned in fee simple (or the equivalent under applicable
Law)
by an Acquired Company (the “Owned Real Property”) and identifies for
each the owner, location (including street address) and principal uses
thereof.
(b) Section
3.14(b) of the Company Disclosure Schedule lists all material
real property currently leased by an Acquired Company (the “Leased Real
Property,” and together with the Owned Real Property, the “Company Real
Property”) and identifies for each the lessee, lessor, location (including
street address) and principal uses thereof. The Company has made
available to Parent correct and complete copies of each Contract relating to
the
Leased Real Property (including any and all modifications, supplements and
amendments thereto and any and all renewals or extensions thereof, each a
“Lease”). Each Lease is the legal, valid, binding, and
enforceable obligation of the Acquired Company that is lessee thereunder, and,
to the Company’s knowledge, the Lease is in full force and effect and the
binding obligation of the other parties thereto and will continue to be the
legal, valid, binding, and enforceable obligation of the applicable Acquired
Company following the Closing. No Acquired Company has received any
written notice that it is in material Breach under any Lease (which Breach
has
not been cured), and to the Company’s knowledge no Acquired Company or any other
party to such Lease is in material Breach under any such Lease, and, subject
to
receipt of the Consents listed in Section 3.3(e) of the Company
Disclosure Schedule, no event has occurred, which, after the giving of
notice, with lapse of time, or otherwise, would constitute a material Breach
by
an Acquired Company or, to the Company’s knowledge, any other party under such
Lease.
19
(c) With
respect to each parcel of Company Real Property:
(i) an
Acquired Company holds good and marketable fee simple (or the equivalent under
applicable Law) title to, or, with respect to the Leased Real Property, a valid
leasehold interest in, the parcel (and, with respect to each parcel of Owned
Real Property, all buildings, structures, fixtures and improvements thereon),
free and clear of any Encumbrances other than Permitted Encumbrances;
(ii) except
for Permitted Encumbrances, no Acquired Company has leased, subleased or
otherwise granted to any Third Party any right to occupy or use the parcel
or
any material portion thereof and, with respect to the Owned Real Property,
there
are no outstanding options or rights of first refusal to purchase the parcel
or
any portion thereof or interest therein;
(iii) to
the
Company’s knowledge, there are no facts, circumstances or conditions that have
materially interfered, or would reasonably be expected to materially interfere,
with the current or currently proposed uses of the parcel;
(iv) there
are
no pending or, to the Company’s knowledge, threatened condemnation, zoning or
other Proceedings; and
(v) the
parcel is being used and occupied in compliance with all applicable Laws, except
for Breaches the consequences of which would not reasonably be expected to,
individually or in the aggregate, materially interfere with the occupation
or
use of such parcel as currently occupied or used by an Acquired Company.
(d) An
Acquired Company has good and marketable title to, or a valid leasehold interest
in, all material machinery, equipment and other tangible assets used by the
Acquired Companies or which are reflected in the Latest Company Balance Sheet
or
acquired after the date thereof, in each case free and clear of any Encumbrances
other than Permitted Encumbrances, except for assets and properties disposed
of
in the Ordinary Course of Business or as otherwise permitted under this
Agreement since the date of the Latest Company Balance
Sheet.
3.15 Intellectual
Property.
(a) Section 3.15(a)
of the Company Disclosure Schedule lists all material registered or
applied-for Patents, Marks and Copyrights owned or held by an Acquired Company
and specifies for each, as applicable, (i) the name of the applicant/registrant
and current owner; (ii) the jurisdiction in which application/registration
is
filed; (iii) the application/registration number; and (iv) the status of the
application/registration, including deadlines for any renewals or other required
filings.
(b) An
Acquired Company has good and marketable right, title and interest, or a valid
license, in and to all Intellectual Property that is material to the operation
of its businesses (the “Material IP”), which assets are free and clear of
all Encumbrances other than limitations expressly set forth in any applicable
license agreements and Permitted Encumbrances.
20
(c) Except
as
set forth in Section 3.15(c) of the Company
Disclosure Schedule:
(i) the
Acquired Companies’ use of the Material IP as the Acquired Companies currently
conduct their respective businesses does not, to the Company’s knowledge,
infringe, misappropriate or otherwise violate the Intellectual Property rights
of any Person, and no Person has since January 1, 2001, alleged in writing
to an
Acquired Company (or, to the Company’s knowledge, otherwise alleged) that the
use of the Material IP, or that the operation of an Acquired Company, infringes,
misappropriates or otherwise violates any Person’s Intellectual Property;
(ii) to
the
Company’s knowledge, no Person has since December 31, 2003, infringed,
misappropriated or violated any of the Material IP owned or exclusively held
by
an Acquired Company; and
(iii) to
the
Company’s knowledge, all Material IP owned by an Acquired Company is valid and
enforceable, and no Person has alleged in writing (or, to the Company’s
knowledge, otherwise alleged) that any such owned Material IP is not valid
or
unenforceable.
(d) Except
as
set forth in Section 3.15(d) of the Company Disclosure
Schedule, it is the policy of each Acquired Company to require all Company
Personnel involved in the development or use of Intellectual Property to enter
into written agreements obligating such Person to (i) assign to the relevant
Acquired Company all of such Person’s rights in any Intellectual Property
conceived, generated, made or reduced to practice by such Person in connection
with such Person’s association with an Acquired Company and (ii) maintain the
confidentiality of all information of the Acquired Companies.
3.16 Insurance. Section 3.16
of the Company Disclosure Schedule sets forth a list of all material
insurance policies (other than in respect of Company Plans) currently owned
or
held by the Acquired Companies, correct and complete copies of which have been
made available to Parent. With respect to each such policy, (a) it is in full force
and
effect; (b) all premiums
thereunder covering all periods through and including the date of this Agreement
have been paid; (c) no
notice of cancellation, termination or reservation of rights has been received
thereunder; and (d) it is
maintained with a reputable carrier and with coverage in commercially reasonable
amounts. Except as set forth in Section 3.16 of the
Company Disclosure Schedule, since December 31, 2003, no Acquired Company
has been refused any material insurance with respect to its assets or
operations, and no coverage has been materially limited, by any insurance
carrier to which they or any of them has applied or with which they or any
of
them have carried insurance.
21
3.17 Contracts.
(a) Section
3.17(a) of the Company Disclosure Schedule lists, and the
Company has made available to Parent correct and complete copies of, the
following Contracts to which an Acquired Company is a party or subject or by
which an Acquired Company is bound (each, a “Material Contract”):
(i) each
material Contract, letter of intent or other understanding regarding the
acquisition or disposition of a Person or business, whether in the form of
an
asset purchase, share purchase, merger, consolidation or otherwise entered
into
since December 31, 2003, or under which one or more of the parties has executory
indemnification, earn-out, non-competition or other material Liabilities;
(ii) each
Contract that prohibits or limits to any extent an Acquired Company’s right to
(1) participate or compete in a line of business, market or geographic area
or
otherwise freely engage in business anywhere in the world or (2) solicit or
engage the services of any Person;
(iii) each
Contract regarding the incurrence of indebtedness for borrowed money or any
guaranty of such indebtedness (which, for the avoidance of doubt, does not
include Contracts evidencing trade payables);
(iv) each
Contract regarding the Material IP;
(v) each
Contract or group of related Contracts involving payments by or to an Acquired
Company, in excess of $100,000 per year, other than Contracts subject to
termination without penalty on not more than 90 days notice;
(vi) each
Contract that contains “most favored customer” or “most favored nation” pricing
provisions;
(vii) each
Contract that grants any exclusive rights, rights of first refusal, rights
of
first negotiation or similar rights to any Person with respect to any Company
Real Property, Material IP, material tangible assets or business;
(viii) each
Contract with a distributor, reseller, dealer, manufacturer’s representative,
sales agent or other such Person involving payments by or to an Acquired
Company, in excess of $100,000 per year, other than Contracts subject to
termination without penalty on not more than 90 days notice;
(ix) each
Contract relating to a partnership or joint venture; and
(x) each
Contract not described above that is a material Contract within the meaning
of
601(b)(10) of Regulation S-K promulgated under the Securities Act.
22
(b) The
Company has made available to Parent a correct and complete copy of each
Material Contract. Except as set forth in Section
3.17(b) of the Company Disclosure Schedule, (i) each Material
Contract is valid and binding on the applicable Acquired Company and, to the
Company’s knowledge, each other party thereto and is in full force and effect;
(ii) and, subject to receipt of the Consents listed in Section
3.3(e) of the Company Disclosure Schedule, no condition exists
and no event has occurred that has resulted or would reasonably be expected
to
result in a material Breach of a Material Contract by an Acquired Company or,
to
the Company’s knowledge, by any other party thereto; and (iii) no party to a
Material Contract has by a written communication to an Acquired Company
purported to terminate or requested any material modification or waiver of
such
Contract. None of the matters set forth in Section 3.17(b) of the
Company Disclosure Schedule have had or would reasonably be expected to have
a
Company Material Adverse Effect.
3.18 Environmental
Matters.
(a) Except
as
set forth in Section 3.18(a) of the Company Disclosure
Schedule:
(i) since
December 31, 2003, each Acquired Company has owned and operated its business,
assets and properties in material compliance with all applicable Environmental
Laws, and no Person has alleged in writing (or, to the Company’s knowledge, has
otherwise alleged) that an Acquired Company has materially Breached an
Environmental Law;
(ii) since
December 31, 2003, each Acquired Company has owned and operated its business,
assets and properties in material compliance with all Permits relating to the
Environment, and no Person has alleged in writing to an Acquired Company (or,
to
the Company’s knowledge, has otherwise alleged) that an Acquired Company has
materially Breached any such Permit;
(iii) there
are
no pending or, to the Company’s knowledge, threatened Proceedings against or
otherwise affecting an Acquired Company relating to the Environment;
(iv) no
Acquired Company has incurred any material Environmental Liabilities;
and
(v) except
for matters that are not likely to result in a material Environmental Liability,
no Acquired Company or, to the Company’s knowledge, other Person has Released,
placed, stored, buried or dumped any Hazardous Materials or any other wastes
produced by, or resulting from, any business, commercial or industrial
activities, operations or processes, on, under or about to any Company Real
Property or any Former Company Real Property, other than inventories of such
substances to be used, and wastes generated therefrom, in the Ordinary Course
of
Business (which inventories and wastes have been and continue to be stored
or
disposed of in material compliance with all applicable Environmental
Laws).
23
(b) None
of
the matters set forth in Section 3.18(a) of the Company Disclosure Schedule
have
had or would reasonably be expected to have a Company Material Adverse Effect.
(c) The
Company has made available to Parent correct and complete copies of all reports,
site assessments, compliance audits or similar studies concerning the
Environment that, since December 31, 2003, have been prepared by, furnished
to
or in the custody or control of an Acquired Company and which relate to an
Acquired Company, the Company Real Property or the Former Company Real Property.
(d) The
representations and warranties set forth in this Section 3.18 are the exclusive
representations and warranties pertaining to Environmental Laws, Environmental
Liabilities and Hazardous Materials.
3.19 Related
Party Transactions. Since the filing date of the Company’s proxy
statement for its 2007 annual meeting of shareholders, nothing has occurred
that
would require disclosure as a “Certain Relationship or Related Transaction”
under Item 404 of Regulation S-K promulgated by the SEC.
3.20 Customers
and Suppliers. Section 3.20 of the Company Disclosure Schedule
sets forth a correct and complete list of the 10 largest suppliers to and
customers of the Acquired Companies for the 12-month period ended December
31,
2006 (determined on the basis of the total dollar amount of purchases or sales,
as the case may be), showing the total dollar amount of purchases from or sales
to, as the case may be, each such supplier or customer during such
period. Between December 31, 2006 and the date of this Agreement, to
the Company’s knowledge, there has been no termination, cancellation or material
curtailment of the business relationship of an Acquired Company with any such
material customer or material supplier nor has any such material customer or
material supplier indicated in writing to an Acquired Company an intention
to so
terminate, cancel or materially curtail its business relationship with an
Acquired Company.
3.21 Certain
Business Practices. No Acquired Company, and no director,
officer, agent or employee of an Acquired Company, has (a) used any funds for
unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (b)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns, or (c) violated any provision
of
the Foreign Corrupt Practices Act of 1977 or any other anti-corruption or
anti-bribery Law applicable to an Acquired Company.
3.22 Brokers. Except
for Xxxxxxx, none of the Acquired Companies, nor any of their directors,
officers, employees or agents, has employed any broker, finder or financial
advisor, or incurred any liability for any brokerage fee or commission, finder’s
fee or financial advisory fee, in connection with the transactions contemplated
hereby. None of the Acquired Companies has knowledge of any basis on
which any Person other than Xxxxxxx might claim any such fee or
commission. The Company has made available to Parent a true, correct
and complete copy of each agreement between any Acquired Company and Xxxxxxx
relating to the Merger and the other transactions contemplated by this
Agreement.
24
Section
4
Representations
and Warranties of Parent and Merger Sub
Parent
and Merger Sub hereby jointly and severally represent and warrant to the Company
as set forth in this Section 4.
4.1 Organization;
Standing; Corporate Power.
(a) Parent
is
a corporation duly organized, validly existing and in good standing under the
laws of the state of Delaware and has all requisite corporate power and
authority to conduct its business as it is now being conducted and to own,
lease
and operate its properties and assets. Parent is duly qualified or
licensed to do business as a foreign entity in good standing in each
jurisdiction where the nature of its business or the ownership, leasing or
operation of its assets requires such licensing or qualification, except where
the failure to be so qualified or licensed would not reasonably be expected
to
have a Parent Material Adverse Effect.
(b) Merger
Sub is a corporation duly organized, validly existing and in good standing
under
the laws of the state of Georgia and has all requisite corporate power and
authority to conduct its business as it is now being conducted and to own,
lease
and operate its properties and assets. Merger Sub is a wholly-owned
Subsidiary of Parent. Merger Sub is duly qualified or licensed to do
business as a foreign entity in good standing in each jurisdiction where the
nature of its business or the ownership, leasing or operation of its assets
requires such licensing or qualification, except where the failure to be so
qualified or licensed would not reasonably be expected to have a Parent Material
Adverse Effect. Merger Sub was formed solely for the purpose of
engaging in the Merger and the other transactions contemplated by this
Agreement, has engaged in no other business activities and has conducted its
operations only as contemplated hereby.
(c) Parent
has furnished to the Company correct and complete copies of the Governing
Documents of Parent and Merger Sub, each as in full force and effect as of
the
date hereof. Neither Parent nor Merger Sub is in Breach of its
Governing Documents.
4.2 Authority;
Parent Board Approval; No Breach.
(a) Parent
and Merger Sub have all necessary corporate power and authority to execute
and
deliver this Agreement and to complete the transactions contemplated by this
Agreement. Parent, Merger Sub, the Parent board of directors and the
Merger Sub board of directors have taken all action required by Law, the
Governing Documents of Parent and Merger Sub and otherwise to authorize the
execution, delivery and performance of this Agreement by Parent and Merger
Sub. Parent and Merger Sub have duly and validly executed and
delivered this Agreement and, assuming the due authorization, execution and
delivery of this Agreement by the Company, this Agreement constitutes the legal
and valid binding obligation of Parent and Merger Sub enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors’ rights generally and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). No vote of Parent’s
stockholders is required by Law, Parent’s Governing Documents or otherwise in
connection with this Agreement, the Merger or the other transactions
contemplated hereby.
25
(b) The
Parent board of directors and the Merger Sub board of directors, each at
meetings duly called and held prior to the execution of this Agreement, duly
and
unanimously adopted resolutions (i) approving and declaring advisable this
Agreement and the transactions contemplated hereby (such approvals having been
made in accordance with applicable Law) and (ii) determining that the terms
of
the Merger are fair to and in the best interests of Parent, Merger Sub and
their
respective stockholders, which resolutions have not been modified, supplemented
or rescinded and remain in full force and effect.
(c) Neither
the execution and delivery of this Agreement nor the completion or performance
of the transactions contemplated hereby will: (i) Breach any
provision of the Governing Documents, or any resolution adopted by the governing
body, of Parent or Merger Sub; (ii) Breach any provision of, or give any Person
a right to declare a default or exercise any remedy under, or accelerate the
maturity or performance of, or payment under, or to cancel, terminate or modify,
any Contract to which Parent or Merger Sub is a party or by which it is bound;
(iii) result in the creation or imposition of an Encumbrance upon or in relation
to any asset of Parent or Merger Sub; or (iv) assuming the Consents specified
in
Section 4.3 are obtained, violate or otherwise Breach, or give any Authority
the
right to challenge any of the transactions contemplated by this Agreement or
exercise any remedy or obtain any relief under, any Law or Order applicable
to
Parent or Merger Sub, except in the case of clauses (ii)-(iv), any such
consequences that would not, individually or in the aggregate, reasonably be
expected to (x) be material to Parent and its Subsidiaries taken as a whole;
(y)
impair in any material respect Parent’s or Merger Sub’s ability to perform their
respective obligations under this Agreement; or (z) prevent or materially delay
the completion of the Merger or the other transactions contemplated by this
Agreement.
4.3 Consents
and Filings. Neither Parent nor Merger Sub is required by Law,
Contract or otherwise to give any notice to, make any filing with, or obtain
any
Consent from any Authority or other Person in connection with Parent’s or Merger
Sub’s execution, delivery or performance of this Agreement, except (a) the filing of a pre-merger
notification and report form by Parent under the HSR Act and the termination
or
expiration of the waiting period required thereunder; (b) merger control filings
in
the Federal Republic of Germany and the Republic of Austria; (c) the filing of the
Certificate of Merger; and (d) such other notices,
filings
and Consents that, if not obtained or made, would not, individually or in the
aggregate, reasonably be expected to (x) be material to Parent and its
Subsidiaries taken as a whole; (y) impair in any material respect Parent’s or
Merger Sub’s ability to perform their respective obligations under this
Agreement; or (z) prevent or materially delay the completion of the Merger
or
the other transactions contemplated by this Agreement.
26
4.4 Information
Supplied. None of the information supplied or to be
supplied by or on behalf of Parent for inclusion or incorporation by reference
in the Proxy Statement will, at the date it is first mailed to the Company’s
shareholders and at the time of the Shareholder Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they are made, not
misleading.
4.5 Available
Funds. Parent has available to it all funds and sources of
liquidity necessary for the payment of the Merger Consideration and to satisfy
all of its obligations under this Agreement.
4.6 Brokers. Except
for UBS, neither Parent nor Merger Sub, nor any of their directors, officers,
employees or agents, has employed any broker, finder or financial advisor,
or
incurred any liability for any brokerage fee or commission, finder’s fee or
financial advisory fee, in connection with the transactions contemplated hereby.
4.7 Ownership
of Company Common Stock. On the date hereof, neither Parent nor
Merger Sub owns any shares of Company Common Stock. Neither Parent
nor Merger Sub is or has been at any time within five years prior to the date
of
this Agreement an “interested shareholder” of the Company, as such term is used
in Section 14-2-1110 of the GBCC.
4.8 No
Other Information. Parent and Merger Sub acknowledge that the
Company makes no representations or warranties as to any matter whatsoever
except as expressly set forth in this Agreement.
Section
5
Covenants
and Agreements
5.1 Conduct
of Business.
(a) Except
as
expressly provided in this Agreement (including without limitation, in
Section 5.1 of the Company Disclosure Schedule) or to the extent that
Parent otherwise consents in writing (which consent may not be unreasonably
withheld, conditioned or delayed), from the date of this Agreement through
and
including the Effective Time, the Company will, and will cause each Company
Subsidiary to, operate in the Ordinary Course of Business and in material
compliance with all applicable Laws and use all commercially reasonable efforts
to (x) preserve intact its business organization, (y) keep available the
services of its officers, employees and consultants, and (z) preserve its
relationships with customers, suppliers, licensors, licensees, distributors,
Authorities, creditors and others with whom it has business
dealings. In addition, and without limiting the generality of the
foregoing, except as expressly provided in this Agreement (including without
limitation, in Section 5.1 of the Company Disclosure Schedule) or to the
extent that Parent otherwise consents in writing (which consent may not be
unreasonably withheld, conditioned or delayed), the Company will not, and will
cause each Company Subsidiary to not:
(i) amend
its
Governing Documents;
27
(ii) (1)
declare, set aside or pay any dividends on, or make any other distributions
(whether in cash, stock or property) in respect of, any of its capital stock,
other than dividends and distributions by a Company Subsidiary to its parent;
(2) split, combine or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock; (3) purchase, redeem or otherwise
acquire any shares of capital stock or other securities of an Acquired Company
or any rights, warrants or options to acquire any such shares or other
securities, except for purchases, redemptions or other acquisitions of capital
stock or other securities required under the terms of any Contracts existing
on
the date of this Agreement between an Acquired Company and any director or
employee of an Acquired Company (complete and accurate copies of which have
been
heretofore made available to Parent); or (4) adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring, recapitalization
or reorganization involving an Acquired Company;
(iii) issue,
deliver, sell, grant or Encumber any shares of its capital stock or other
securities (including any Voting Debt, any options, warrants or other rights
to
acquire such shares or other securities, and any securities convertible into
or
exchangeable for such shares or other securities or convertible or exchangeable
securities) or any “phantom” stock, “phantom” stock rights, stock appreciation
rights or stock-based performance units, except for issuances of Company Common
Stock under the terms of Company Share Awards granted prior to the date of
this
Agreement or under the ESPP as set forth in Section 2.5(d);
(iv) acquire
(1) by merging or consolidating with, or by purchasing a substantial portion
of
the assets of, or by any other manner, any Person or any business or division
thereof or (2) any assets other than (A) purchases of inventory, materials,
supplies and equipment in the Ordinary Course of Business, and (B) capital
expenditures to the extent permitted under Section 5.1(a)(viii);
(v) sell,
lease, sublease, license, transfer, mortgage, pledge or otherwise dispose of
or
Encumber any of its properties or assets, other than (1) sales, leases,
subleases, licenses, transfers, mortgages, pledges or other dispositions or
Encumbrances of properties or assets under and in accordance with the terms
of
existing Contracts; (2) dispositions of inventory and dispositions of surplus
or
obsolete properties or assets in the Ordinary Course of Business; (3) Permitted
Encumbrances; and (4) dispositions of up to $100,000 per transaction and
$250,000 in the aggregate;
(vi) repay
any
long-term or short-term indebtedness for borrowed money, incur any long-term
or
short-term indebtedness for borrowed money or guarantee any such long-term
or
short-term indebtedness of another Person, issue or sell any debt securities
or
warrants or other rights to acquire any debt securities of an Acquired Company,
guarantee any debt securities of another Person, enter into any “keep well” or
other agreement to maintain any financial statement condition of another Person
or enter into any arrangement having the economic effect of any of the
foregoing, except in each case to the extent (1) set forth in Section 5.1(a)(vi)
of the Company Disclosure Schedule or (2) required under the terms of any
Contract by which an Acquired Company is bound as of the date of this Agreement
(complete and accurate copies of which have been heretofore made available
to
Parent);
28
(vii) make
any
loans, advances or capital contributions to, or investments in, any other
Person, other than (1) transactions solely between or among the Acquired
Companies; (2) transactions in accordance with the terms of any Contract by
which an Acquired Company is bound as of the date of this Agreement (complete
and accurate copies of which have been made available to Parent); (3) advances
for expenses in the Ordinary Course of Business; and (4) as set forth in
Section 5.1(a)(vii) of the Company Disclosure
Schedule;
(viii) make
any
new capital expenditure or expenditures, except to the extent set forth in
Section 5.1(a)(viii) of the Company Disclosure
Schedule;
(ix) initiate
any Proceeding or discharge or settle any pending or threatened Proceeding,
other than (1) the initiation of collection Proceedings in the Ordinary Course
of Business and (2) the discharge or settlement of a Proceeding or threatened
Proceeding on terms which impose no obligations on an Acquired Company other
than the payment of uninsured monetary damages of not more than
$250,000;
(x) (1)
enter
into, terminate, cancel, materially amend, materially extend or waive, release
or assign any material right or claim under any Material Contract or any
Contract that, if entered into prior to the date hereof, would be a Material
Contract, other than in the Ordinary Course of Business, or (2) cancel, modify
or waive any indebtedness or any other rights or claims having a value in excess
of $100,000 individually or $250,000 in the aggregate or which are material
to
the Acquired Companies;
(xi) transfer,
assign, terminate, cancel, abandon or modify any Permits or fail to use
commercially reasonable efforts to maintain any Permits as currently in effect,
except for Permits that are immaterial to the operation of the Acquired
Companies taken as a whole;
(xii) fail
to
use all commercially reasonable efforts to maintain all insurance policies
as
currently in effect (or comparable replacement policies to the extent available
for a similar cost) or to prevent the lapse of any such policies;
(xiii) except
to
the extent required by applicable Law or under written Contracts in existence
prior to the date of this Agreement (complete and accurate copies of which
have
been heretofore made available to Parent) or as otherwise permitted by Sections
2.5 and 5.11: (1) increase or improve in any manner the compensation, benefits
or other terms or conditions of employment of, or pay any bonus to, any Company
Personnel (except for any such increases or payments made in the Ordinary Course
of Business to Company Personnel other than those identified in the attached
Exhibit B); (2) grant any awards under any Company Plan or amend the
terms or conditions of any awards which have been granted under a Company Plan;
(3) establish, adopt, enter into, amend or terminate any Company Plan or other
benefit or compensation plan, program, arrangement or agreement; (4) exercise
any discretion to accelerate any rights or benefits, or make any material
determinations, under any Company Plan; (5) materially change any actuarial
or
other assumptions used to calculate funding obligations under any Company Plan
or change the manner in which contributions are made or the basis on which
contributions are determined, except as may be required by GAAP; or (6) make
any
representation or commitment to, or enter into any formal or informal
understanding with, any Company Personnel with respect to compensation,
benefits, or terms of employment to be provided by Parent, the Surviving
Corporation or any of their respective Affiliates (for the avoidance of doubt,
the foregoing provisions prohibit any increase in the aggregate amount payable
under the Company’s sale of business bonus program);
29
(xiv) enter
into, terminate, cancel, amend, extend or waive, release or assign any right
or
claim under any Contract (including the existing employment Contracts) with
the
Persons identified in the attached Exhibit B;
(xv) transfer
or license to any Person or allow to lapse or go abandoned any Material IP
Rights, enter into any license agreement with any Person to obtain any Material
IP Rights or commence, discharge or settle any Proceeding relating to any
Material IP Rights;
(xvi) except
to
the extent required by GAAP or applicable Law, make any material change in
accounting methods, principles or practices;
(xvii) take
any
actions or fail to take any actions that would knowingly cause, or that would
reasonably be expected to cause, any Breach of the Company’s representations and
warranties set forth in this Agreement at any time at or prior to the Effective
Time; or
(xviii) commit
or
agree to take, or authorize the taking, of any of the foregoing
actions.
(b) Except
as
expressly provided in this Agreement or to the extent that the Company otherwise
consents in writing, from the date of this Agreement through and including
the
Effective Time, Parent will not, and will cause Merger Sub to not, take any
actions or fail to take any actions that would cause, or that may reasonably
be
expected to cause, any Breach of Parent’s or Merger Sub’s representations and
warranties set forth in this Agreement at any time at or prior to the Effective
Time.
30
(c) Nothing
in this Agreement is intended to give Parent, directly or indirectly, any right
to control or direct the business or operations of an Acquired Company prior
to
the Effective Time.
(d) Each
of
the Company and Parent will promptly advise the other party in writing if (i)
an
event has occurred or failed to occur which, individually or in the aggregate
with other events, would reasonably be expected to result in the failure to
satisfy a condition to the Closing or otherwise materially delay the Closing;
(ii) any of its (and, in the case of Parent, Merger Sub’s) representations or
warranties set forth in this Agreement have become untrue or inaccurate in
any
respect; or (iii) it (and, in the case of Parent, Merger Sub) has Breached
any
of its obligations under this Agreement. Notwithstanding the
foregoing, no such notification under this sentence or the preceding sentence
will affect the representations, warranties, covenants or agreements of the
parties (or remedies with respect thereto) or the conditions to the obligations
of the parties under this Agreement.
5.2 No
Solicitation; Change in Recommendation.
(a) Unless
and until this Agreement has been terminated in accordance with Section 7,
the
Company:
(i) will,
immediately after the date of this Agreement, (1) terminate any existing
discussions or other activities conducted prior to the date of this Agreement
in
connection with any Takeover Proposal, (2) promptly inform its Representatives
of the obligations undertaken in this Section 5.2, and (3) deny access to any
virtual data room containing information about the Acquired Companies to all
Persons other than Parent and its Representatives;
(ii) will,
within three Business Days after the date of this Agreement, request the prompt
return or destruction of any confidential information previously furnished
in
connection with any Takeover Proposal;
(iii) except
to
the extent permitted by Section 5.2(b), will not directly or indirectly (1)
initiate, solicit or knowingly facilitate or encourage any inquiry or the making
of any proposal that constitutes or is reasonably likely to lead to a Takeover
Proposal or (2) afford access to the business, properties, assets, books or
records of any Acquired Company or continue or otherwise participate in any
discussions or negotiations regarding an inquiry or proposal, or furnish to
any
Person any information or data with respect to any inquiry or proposal, or
otherwise cooperate with or take any other action to facilitate an inquiry
or
proposal that (A) constitutes or is reasonably likely to lead to any Takeover
Proposal or (B) requires the Company to abandon, terminate or fail to consummate
the Merger or any other transaction contemplated by this Agreement;
(iv) will
not
directly or indirectly amend, terminate, waive, fail to use commercially
reasonable efforts to enforce, or grant any consent under any confidentiality,
standstill, shareholder rights or similar agreement (other than any such
agreement with Parent); and
31
(v) will
not
submit to the vote of its shareholders any Takeover Proposal other than the
Merger.
(b) Notwithstanding
Section 5.2(a)(iii), if prior to receipt of the Required Shareholder Vote the
Company receives a bona fide, written Takeover Proposal that the Company did
not
initiate, solicit or knowingly facilitate or encourage, then the Company and
its
Representatives may furnish information to and participate in discussions with
the Person (and its Affiliates and their respective Representatives) making
the
Takeover Proposal for so long as all of the following conditions are
satisfied:
(i) the
information is furnished under and in accordance with a confidentiality
agreement (a copy of which will be provided to Parent promptly after its
execution) containing terms and conditions (1) no less restrictive than those
contained in the Confidentiality Agreement (except that the agreement need
not
contain a standstill provision), and (2) that does not prevent the Company
from
complying with its obligations under this Agreement (including the disclosure
obligations under Section 5.2(c));
(ii) all
non-public information furnished to the Person has previously been provided
to
Parent or is provided to Parent prior to or concurrently with the time it is
provided to the Person; and
(iii) the
Company Board determines in good faith by resolution duly adopted after
consultation with its outside legal counsel and a financial advisor of
nationally recognized reputation that (1) the failure to furnish the information
or participate in the discussions would reasonably be expected to result in
a
Breach of its fiduciary duties to the Company’s shareholders under the GBCC and
(2) the Takeover Proposal is or could reasonably be expected to lead to a
Superior Proposal.
(c) As
promptly as practicable (and in any event within two Business Days) after the
Company’s receipt of any Takeover Proposal or any inquiry with respect to, or
that would reasonably be expected to lead to, any Takeover Proposal, the Company
will provide oral and written notice to Parent of (i) the Takeover Proposal
or
inquiry, (ii) the identity of the Person submitting the Takeover Proposal or
inquiry, and (iii) the material terms and conditions of the Takeover Proposal
or
inquiry (including any amendments or modifications thereto). The
Company will keep Parent fully informed on a current basis concerning the status
of any such Takeover Proposal, including any changes to the terms and conditions
thereof, and will promptly provide Parent with copies of all such Takeover
Proposals (and modifications thereof) and related agreements, draft agreements
and modifications thereof.
(d) Except
to
the extent permitted by Section 5.2(e), the Company Board will not, directly
or
indirectly, (i) make a Change in Recommendation or (ii) approve or recommend
(or
propose publicly to approve or recommend), or permit the Company to enter into
or otherwise become bound by, any letter of intent, memorandum of understanding,
agreement in principle, acquisition agreement, merger agreement, option
agreement, joint venture agreement or other agreement, arrangement or
understanding relating to any Takeover Proposal (other than the confidentiality
agreement referred to in Section 5.2(b)).
32
(e) Notwithstanding
Section 5.2(d), at any time prior to obtaining the Required Shareholder Vote,
the Company Board may make a Change in Recommendation in response to a Superior
Proposal if all of the following conditions are satisfied:
(i) the
Superior Proposal did not result from a material Breach of this Section
5.2;
(ii) the
Company Board determines in good faith by resolution duly adopted after
consultation with its outside legal counsel, that the failure to make a Change
in Recommendation would reasonably be expected to violate its fiduciary duties
to the Company’s shareholders under the GBCC;
(iii) the
Company Board has first provided prior written notice to Parent that it is
prepared to make a Change in Recommendation in response to the Superior
Proposal, and with such notice or by prior communication (1) identifies the
Person making the Superior Proposal, (2) sets forth the material terms and
conditions of the Superior Proposal, and (3) provides the most current version
of any written agreement relating to the transaction that constitutes the
Superior Proposal; and
(iv) the
Company and its Representative negotiate in good faith with Parent and its
Representatives for a period of three Business Days after Parent receives the
foregoing written notice, and Parent does not within that period propose to
amend this Agreement to provide for terms which the Company Board determines
in
good faith by resolution duly adopted after consultation with a financial
advisor of nationally recognized reputation, is at least as favorable to the
Company’s shareholders as the Superior Proposal.
(f) Nothing
contained in Section 5.2(d) will prohibit the Company or the Company Board
from
(i) complying with Rule 14e-2 promulgated under the Exchange Act in respect
of
any Takeover Proposal, (ii) making any disclosure to the Company’s shareholders
if the Company Board determines in good faith by resolution duly adopted after
consultation with its outside counsel, that the failure to make the disclosure
would reasonably be expected to result in a Breach of its fiduciary duties
to
the Company’s shareholders under the GBCC, or (iii) taking any action or making
any disclosure required by applicable Law. However, the Company Board
may not, except as expressly permitted by Section 5.2(e), effect a Change in
Recommendation or approve or recommend, or publicly propose to approve or
recommend, a Takeover Proposal.
33
(g) The
Company will cause each Company Subsidiary to, and the Company will use all
commercially reasonable efforts to cause its Representatives and its Company
Subsidiaries’ Representatives to, comply with this Section 5.2 as if they were
the Company. Any violation of this Section 5.2 by any Representative
of the Company or any Representative of a Company Subsidiary will be deemed
to
be a Breach of this Section 5.2 by the Company.
(h) For
purposes of this Agreement:
(i) “Business
Combination Transaction” means a merger, consolidation, business
combination, share exchange, stock purchase, reorganization, recapitalization,
liquidation, dissolution, or similar transaction involving an Acquired Company
which represents, individually or in the aggregate, 15% or more of the Company’s
consolidated assets.
(ii) “Change
in Recommendation” means any (1) withdrawal, modification or qualification
of the Board Recommendation in any manner adverse to Parent, (2) approval or
recommendation of, or taking of a neutral position or no position with respect
to, a Takeover Proposal, or (3) failure to recommend the approval or adoption
of
this Agreement and the transactions contemplated by this
Agreement.
(iii) “Superior
Proposal” means any bona fide, written proposal or offer to the Company made
by a Third Party in respect of a Business Combination Transaction involving,
or
any transaction involving the purchase or acquisition of, (1) all or
substantially all of the voting power of the Company’s capital stock or (2) all
or substantially all of the consolidated assets of the Acquired Companies,
which
transaction the Company Board determines in good faith by resolution duly
adopted after consultation with its outside counsel and a financial advisor
of
nationally recognized reputation, (x) involves consideration to the holders
of
Company Common Stock that is superior to the Merger Consideration and would
be,
if consummated, more favorable to the Company’s shareholders than the Merger,
taking into account all of the terms and conditions of such proposal and of
this
Agreement (including any proposal by Parent to amend the terms of this
Agreement) as well as any other factors deemed relevant by the Company Board
and
(y) is reasonably capable of being consummated on the terms so proposed, taking
into account all financial, regulatory, legal and other aspects of such
proposal.
(iv) “Takeover
Proposal” means any inquiry, proposal or offer to the Company or its
shareholders in respect of (1) a Business Combination Transaction with any
Third
Party in which the Third Party or its shareholders immediately prior to
consummation of the Business Combination Transaction would own 15% or more
of
the Company’s outstanding capital stock (or would acquire a controlling interest
in one or more Company Subsidiaries which together hold 15% or more of the
Company’s consolidated assets) immediately following the Business Combination
Transaction, including the issuance by the Company (or such Company
Subsidiaries) of more than 15% of any class of its voting equity securities
as
consideration for assets or securities of a Third Party, (2) any direct or
indirect acquisition, whether by tender or exchange offer or otherwise, by
any
Third Party of (A) 15% or more of any class of the Company’s capital stock, (B)
a controlling interest in one or more Company Subsidiaries which together hold
15% or more of the Company’s consolidated assets, or (C) 15% or more of the
Company’s consolidated assets, in each case whether in a single transaction or a
series of related transactions, (3) any tender offer or exchange offer involving
any class of equity securities of the Company, or (4) any other transaction
similar to any of the foregoing with respect to an Acquired Company resulting
in
an acquisition of (A) 15% or more of any class of the Company’s capital stock,
(B) a controlling interest in one or more Company Subsidiaries which together
hold 15% or more of the Company’s consolidated assets, or (C) 15% or more of the
Company’s consolidated assets, in each case other than any transactions to be
effected under this Agreement or permitted under Section 5.1.
34
(v) “Third
Party” means a Person other than Parent or an Affiliate of
Parent.
5.3 Preparation
of Proxy Statement.
(a) As
promptly as practicable after the date of this Agreement, the Company will
prepare and file with the SEC the preliminary Proxy Statement. Each
of Parent and the Company will furnish such information as may reasonably be
requested by the other in connection with the preparation, filing and
distribution of the Proxy Statement. The Company will use all
commercially reasonable efforts to promptly respond to any comments of the
SEC
with respect to the Proxy Statement and to cause the definitive Proxy Statement
to be mailed to the Company’s shareholders as promptly as reasonably practicable
after the date of this Agreement. The Company will promptly (i)
notify Parent of the receipt of any comments from the SEC or the SEC staff
and
of any request by the SEC or the SEC staff for amendments or supplements to
the
Proxy Statement or for additional information, and (ii) supply Parent with
copies of all correspondence between the Company (or any of its Representatives)
and the SEC or the SEC staff with respect to the Proxy
Statement.
(b) Notwithstanding
Section 5.3(a), prior to filing or mailing the Proxy Statement (or any amendment
or supplement thereto) or responding to any comments of the SEC or its staff,
the Company (i) will provide Parent with an opportunity to review and comment
on
such document or response, (ii) will include in such document or response all
comments reasonably proposed by Parent to the extent reasonably acceptable
to
the Company, and (iii) will not file or mail such document or respond to such
comments prior to receiving Parent’s approval (which approval may not be
unreasonably withheld, conditioned or delayed).
(c) If
at any
time prior to the Effective Time any information relating to the Company or
Parent, or any of their respective Affiliates, is discovered by the Company
or
Parent which should be set forth in an amendment or supplement to the Proxy
Statement, so that either such document would not include any misstatement
of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they are made,
not
misleading, the party which discovers such information will promptly notify
the
other parties hereto and, to the extent required by applicable Law, the Company
will promptly file an appropriate amendment or supplement describing such
information and disseminate such amendment or supplement to the Company’s
shareholders.
35
5.4 Shareholder
Meeting; Board Recommendation. The Company will duly take all
lawful action and use its commercially reasonable efforts to duly call, give
notice of, convene and hold a meeting of the shareholders of the Company (the
“Shareholder Meeting”) on a date as soon as reasonably practicable for
the purpose of obtaining the Required Shareholder Vote with respect to the
approval or adoption of this Agreement. The Company will consult with
Parent regarding the date of the Company Shareholder Meeting. Subject
to the terms of this Agreement, the Company will solicit proxies and use its
commercially reasonable efforts to obtain the Required Shareholder
Vote. Subject to the terms of this Agreement, the Company Board will
recommend adoption of this Agreement by the Company’s shareholders to the effect
as set forth in Section 3.3(b) (the “Board Recommendation”) and,
subject to Section 5.2(d), will include in the Proxy Statement the Board
Recommendation and the Fairness Opinion.
5.5 Access
to Information; Confidentiality. Subject to applicable Law, the
Company will (a) afford to
Parent and its Representatives full and complete access (including for the
purpose of coordinating integration activities and transition planning), during
regular business hours upon reasonable notice, to the Acquired Companies’
employees, plants, offices, warehouses and other facilities and to all books,
Contracts (subject to applicable confidentiality restrictions), commitments
and
records (including Tax returns and work papers relating thereto) and request
the
Acquired Companies’ independent public accountants to provide access to their
work papers and such other information as Parent may reasonably request; (b) permit Parent to make
such
inspections as they may reasonably require; (c) cause the Acquired
Companies’ officers to furnish Parent with such financial and operating data and
other information with respect to the business, properties and personnel of
the
Acquired Companies as Parent may from time to time reasonably request; and
(d) furnish promptly to
Parent
upon its request a copy of each report, schedule and other document filed or
received by any Acquired Company prior to the Effective Time under the
requirements of any applicable securities Laws, except that the foregoing will
not require the Company to permit any inspection, or to disclose any
information, that in the Company’s reasonable judgment would result in the
disclosure of any trade secrets of third parties or violate any of its
obligations with respect to confidentiality if the Company has used commercially
reasonable efforts to obtain the consent of the third party to the inspection
or
disclosure. All requests by Parent and its Subsidiaries for
information and access hereunder will be coordinated through
Xxxxxxx. All information acquired by Parent or any of its
Representatives under this Section 5.5 will be subject to the terms and
conditions of the Confidentiality Agreement. No investigation under
this Section 5.5 will affect any representation or warranty in this Agreement
of
any party hereto or any condition to the obligations of the parties
hereto.
36
5.6 Reasonable
Efforts; Filings; Notification.
(a) Upon
the
terms and subject to the conditions set forth in this Agreement, each of the
parties will use all commercially reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable
to
complete and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by this Agreement, including
the
use of all commercially reasonable efforts to (i) cause the conditions to
Closing to be satisfied as promptly as practicable; (ii) obtain all necessary
Consents from, and submit all necessary notices, registrations and filings
with,
Authorities and other Third Parties; (iii) subject to Section 5.12 (which will
control over the terms of this clause (iii)), defend against any Proceedings
or
other actions challenging this Agreement or the completion of the Merger and
the
other transactions contemplated hereby (including seeking to have vacated or
reversed any Order issued by an Authority); and (iv) execute and deliver such
additional instruments as may be necessary to complete the transactions
contemplated by, and to fully carry out the purposes of, this
Agreement. If any state takeover statute or similar Law is or becomes
applicable to this Agreement, the Merger or any of the other transactions
contemplated by this Agreement, the Company and the Company Board will use
all
commercially reasonable efforts to ensure that the Merger and the other
transactions contemplated by this Agreement are completed as promptly as
practicable on the terms contemplated by this Agreement and otherwise to
minimize the effect of such Law on this Agreement, the Merger and the other
transactions contemplated hereby.
(b) Without
limiting the generality of Section 5.6(a), each of the Company and Parent will
(A) file with the FTC and the Antitrust Division of the United States Department
of Justice (the “Antitrust Division”) the notification and report form
(the “HSR Filing”) required under the HSR Act and (B) duly make all
notifications and other filings required (together with the HSR Filing, the
“Antitrust Filings”) under any other applicable competition, merger
control, antitrust or similar Law that the parties deem advisable or
appropriate, in each case with respect to the transactions contemplated by
this
Agreement and as promptly as practicable. The Antitrust Filings will
be in substantial compliance with the requirements of the HSR Act or other
Laws,
as applicable, and the parties will use all commercially reasonable efforts
to
(i) cooperate with each other to the extent reasonably necessary to prepare
and
make such filings and notifications and, if requested, promptly amend or furnish
additional information thereunder; (ii) respond promptly to all inquiries and
requests received from an Authority in connection with such filings and
notifications; and (iii) facilitate the earliest possible termination of all
waiting periods and the earliest possible granting of all required Consents
in
connection with such filings and notifications.
(c) In
furtherance, and not in limitation, of the parties’ agreements in this Section
5.6, if any objections are asserted under the HSR Act or any other similar
Laws
concerning the Merger, or if any Proceeding is instituted (or threatened to
be
instituted) by any Authority or Third Party challenging any of the transactions
contemplated by this Agreement or which would otherwise prohibit or materially
impair or materially delay the completion of the Merger, then Parent and the
Company will each use all commercially reasonable efforts to resolve any such
objections or suits so as to permit completion of the
Merger. However, notwithstanding anything to the contrary in this
Agreement, (i) the Company will not, without Parent’s prior written consent,
commit to any divestitures, licenses, hold separate arrangements or similar
matters, including covenants affecting business operating practices (or allow
any of the Company Subsidiaries to commit to any divestitures, licenses, hold
separate arrangements or similar matters), and the Company will commit to,
and
will use all commercially reasonable efforts to effect (and will cause each
of
the Company Subsidiaries to commit to and use all commercially reasonable
efforts to effect), any such divestitures, licenses, hold separate arrangements
or similar matters as Parent may request, but solely if such divestitures,
licenses, hold separate arrangements or similar matters are contingent upon
completion of the Merger; and (ii) neither Parent nor any of the Parent
Subsidiaries will be required to agree (with respect to (1) Parent or the Parent
Subsidiaries or (2) the Company or the Company Subsidiaries) to any
divestitures, licenses, hold separate arrangements or similar matters, including
covenants affecting business operating practices.
37
(d) Each
of
the Company and Parent will, subject to applicable Law and except as prohibited
by any applicable representative of any applicable Authority: (i) promptly
notify the other party of any written or oral communication to that party from
the FTC, the Antitrust Division, any State Attorney General or any other
Authority relating to this Agreement or the Merger, and permit the other party
to review and discuss in advance any proposed written or oral communication
to
any of the foregoing; (ii) not agree to participate in any meeting or discussion
with any Authority in respect of any filings, investigation or inquiry
concerning this Agreement or the Merger unless it consults with the other party
in advance and, to the extent permitted by such Authority, gives the other
party
the opportunity to attend and participate thereat; and (iii) furnish the other
party with copies of all correspondence, filings, and written communications
between them and its Affiliates and their respective Representatives, on the
one
hand, and any Authority or members or their respective staffs, on the other
hand, with respect to this Agreement and the Merger, except that a party may
designate certain documents or portions thereof as “outside antitrust counsel
only.”
5.7 Public
Announcements. The initial public announcement of this Agreement
will be a joint press release in the form heretofore agreed between the
parties. Thereafter, Parent and the Company will consult and
cooperate with each other in good faith regarding any further press releases
or
other public statements with respect to the transactions contemplated by this
Agreement, except as may be required by applicable Law (including the rules
and
regulations of the NYSE and NASDAQ), in which case the party proposing to issue
such press release or other public statement will use all reasonable efforts
to
give as much advance notice to the other party as possible and to consult in
good faith with the other party before issuing such press release or other
public statement.
5.8 Indemnification
and Insurance.
(a) Parent
and the Surviving Corporation jointly and severally agree that all rights to
indemnification and advancement of expenses for acts or omissions occurring
prior to the Effective Time (including acts or omissions in connection with
this
Agreement and the consummation of the transactions contemplated hereby) now
existing in favor of the Company’s current and former directors and officers
(each an “Indemnified Party”) as provided in the Company’s Governing
Documents, and in any indemnification agreements with the Indemnified Parties,
will survive the Merger and will thereafter continue in full force and effect
in
accordance with their terms. Parent and the Surviving Corporation
jointly and severally will advance expenses to and indemnify the Indemnified
Parties to the same extent as the Indemnified Parties currently are entitled
to
advancement of expenses and indemnification.
38
(b) Prior
to
the Effective Time, the Company will purchase the six year extended reporting
period endorsement under the Company’s existing directors’ and officers’
liability insurance policy and the Company’s existing employee benefit plan
fiduciary liability insurance policy, which endorsements provide six years
of
coverage with respect to claims arising from facts or events that occurred
at or
prior to the Effective Time for those persons who are currently covered by
such
policies on terms no less favorable than the terms of such policies, except
that
the aggregate cost of the endorsements may not, without the Parent’s prior
written consent, exceed 200% of the aggregate annual premiums for such
policies.
(c) The
provisions of this Section 5.8 are intended to be for the benefit of, and will
be enforceable by, each of the Indemnified Parties and their heirs and legal
representatives.
(d) The
rights of the Indemnified Parties and their heirs and legal representatives
under this Section 5.8 are in addition to any rights the Indemnified Parties
may
have under any of the Company’s articles of incorporation or bylaws, under any
indemnification agreement between the Company and such Indemnified Person,
or
under any other applicable Laws. From and after the Effective Time,
the Surviving Corporation’s articles of incorporation and bylaws will contain
provisions no less favorable with respect to indemnification of, advancement
of
expenses for and exculpation of the Indemnified Parties than the provisions
currently set forth in the Company’s articles of incorporation and
bylaws. Each indemnification agreement between the Company and an
Indemnified Party as in effect on the date hereof will survive the Merger and
continue in full force and effect in accordance with its terms.
(e) The
obligations of Parent and the Surviving Corporation under this Section 5.8
may
not be terminated or modified in a manner as to adversely affect any Indemnified
Party to whom this Section 5.8 applies without the consent of the affected
Indemnified Party. In the event that either Parent or the Surviving
Corporation or any of their respective successors or assigns (i) consolidates
with or merges into any other Person or (ii) transfers all or a substantially
all of its properties or assets to any Person, then and in each case, proper
provision will be made so that the applicable successors and assigns or
transferees assume the obligations set forth in this Section 5.8.
5.9 Fees
and Expenses. Except as otherwise provided in Section 7.2, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated by this Agreement will be paid by the party incurring
such expense, whether or not the Merger is consummated.
39
5.10 Taxes.
(a) From
the
date of this Agreement until the Effective Time, the Company will not, and
will
cause each Company Subsidiary to not: (i) make any material Tax election that
could have a continuing effect on an Acquired Company after the Effective Time;
(ii) consent to any claim or assessment relating to any material Taxes or any
waiver of the statute of limitations for any such claim or assessment; (iii)
settle or compromise any material Tax Liability or refund; (iv) change or adopt
a Tax accounting method or file any amended Tax Return without Parent’s prior
written consent (which consent may not be unreasonably withheld, conditioned
or
delayed).
(b) From
the
date of this Agreement until the Effective Time, the Company will, and will
cause each Company Subsidiary to: (i) accrue a Liability in its books and
records and financial statements in accordance with GAAP for Taxes payable
by
the an Acquired Company for which no 2006 Tax Return has yet been filed; (ii)
promptly notify Parent of any Tax Proceedings initiated against an Acquired
Company where an adverse determination could result in a material Tax Liability
or materially and adversely affect the Tax attributes of an Acquired Company;
and (iii) provide Parent with copies of any income Tax Return that an Acquired
Company is required to file or elects to file prior to the Effective
Time.
(c) If
reasonably requested by Parent, the Company will, and will cause each Company
Subsidiary to, deliver to Parent at the Closing such documentation as is
reasonably necessary to make or permit to be made one or more elections pursuant
to treasury regulation section 301.7701-3(c) (or any other similar applicable
Law) to have a Company Subsidiary classified other than as an association
taxable as a corporation for Tax purposes for any taxable period or portion
thereof ending on or prior to the Effective Time.
5.11 Benefits
and Employment.
(a) The
Company will, not later than the Effective Time, cause to be delivered to Parent
by each individual who is acting as a trustee of any Company Plan a resignation
of his or her trusteeship, to be effective upon the Effective Time.
(b) Notwithstanding
any contrary provision of this Agreement, the Company will, prior to the
Effective Time, amend each Company Plan and each Non-U.S. Company Plan set
forth
in Section5.11 of the Company Disclosure Schedule (the
“Old Plans”) to terminate such plan immediately prior
to the Effective
Time and to terminate each group insurance policy and administrative services
agreement related to such plan effective upon its termination, subject to such
provisions relating to the payment of claims incurred and contributions accrued
prior to the Effective Time. Any Company Plan or Non-U.S. Company
Plan that is not an Old Plan will by operation of law be assumed by Surviving
Corporation as of the Effective Date. Any vacation time accrued under
the Company’s vacation policy as of the Effective Time will be carried over and
credited to the applicable Company Personnel on and after the Effective
Time.
40
(c) For
purposes of satisfying the eligibility, participation and
vesting requirements under the employee benefit plans of Parent and
its Affiliates providing benefits to any Company Personnel after the Effective
Time that are similar or comparable to the Old Plans, (the “New Plans”),
each Company Personnel will receive credit for his or her service with the
Company and its Affiliates before the Effective Time (including predecessor
or
acquired entities or any other entities for which the Company and its Affiliates
have given credit for prior service), to the same extent as such Company
Personnel was entitled, before the Effective Time, to credit for such service
under any similar or comparable Company Plans (except to the extent such credit
would not have been taken into account under a New Plan had it been service
for
Parent). Service with the Company will not be required to be taken
into account in determining the benefits accrued or the amount of employer
subsidy under any New Plan.
(d) As
of the
Effective Time, each Company Personnel will be eligible to participate, without
any waiting period, in each New Plan, to the extent the Company Personnel was
participant in the corresponding Old Plan immediately prior to the Effective
Time.
(e) For
purposes of each New Plan that provides medical, dental, pharmaceutical or
vision benefits to any Company Personnel, Parent will cause
(i) all
pre-existing condition exclusions and actively-at-work requirements of the
New
Plan to be waived for the Company Personnel and his or her covered dependents
to
the extent that the exclusions and requirements would not have applied to that
person under the corresponding Old Plan; and
(ii) any
eligible expenses incurred by the Company Personnel and his or her covered
dependents during the portion of the plan year of the Old Plan ending on the
date the Company Personnel’s participation in the corresponding New Plan begins
to be taken into account under such New Plan for purposes of satisfying all
deductible, coinsurance and maximum out-of-pocket requirements applicable to
the
Company Personnel and his or her covered dependents for the applicable plan
year
as if those amounts had been paid in accordance with the New Plan to the extent
that the eligible expenses would have been so taken into account under the
corresponding Old Plan for that plan year.
(f) Parent
will cause each New Plan providing health or dependent care flexible spending
account benefits to any Company Personnel to take into account for each Employee
as of the Effective Time, the elections, claims, contributions and payments
made
with respect to such Company Personnel under the corresponding Old Plan
providing health or dependent care spending account benefits.
41
(g) Prior
to
the Effective Time, the compensation committee of the Company Board will
determine, and may provide for the payment of (either at, prior to or after
the
Effective Time), annual bonuses for the 2007 plan year under the Company’s
Annual Executive Performance Bonus Plan and the Company’s Pay for Performance
Bonus Plan (the “Bonus Plans”), in each case based solely upon applicable
performance for 2007 and calculated in accordance with past practice and the
applicable bonus formulae communicated prior to the date of this Agreement
to
the participants thereunder, except that the performance determination may
be
made for a period of less than the full calendar year (and annualized for the
full year) in the event the Effective Time occurs prior to January 1, 2008,
but
the bonus based on such determination will be prorated to take into account
that
it is based on less than a full year. Company performance in respect
of calculations made under the Bonus Plans and Company Plans for calendar year
2007 will be calculated without taking into account, and will be adjusted to
exclude, any expenses or costs associated with or arising as a result of
transactions contemplated by this Agreement or any non-recurring charges that
would not reasonably be expected to have been incurred had the transactions
contemplated by this Agreement not occurred. Parent and its
Affiliates will honor the Company’s obligations pursuant to the Bonus
Plans. If a participant in a Bonus Plan becomes entitled to a bonus
under a corresponding bonus plan of Parent or its affiliate for 2007, such
corresponding plan will take into account any benefit provided to the
participant under such Bonus Plan.
(h) At
the
Effective Time, the Company may make payments under its sale of business bonus
program subject to the limitations on the maximum amount payable thereunder
as
set forth in Section 3.13(h) of the Company Disclosure Schedule.
(i) The
Company may amend the Microtek Medical Holdings, Inc. 401(k) Plan to provide
that in the event the Effective Time does not coincide with the first day of
a
calendar quarter, the Company may make an employer matching contribution under
the plan for the period beginning on first day of the calendar quarter in which
the Effective Time occurs and ending at the Effective Time.
5.12 Shareholder
Proceedings. The Company will keep Parent reasonably apprised of
all important developments relating to, and consult with Parent with respect
to,
any Proceedings by a Company shareholder (including derivative claims) relating
to the transactions contemplated by this Agreement, and, subject to applicable
Law, will use reasonable efforts to defend against any such
Proceedings. Parent and Merger Sub may participate in (but not
control) the defense of any such Proceedings, and, subject to applicable Law,
the Company will reasonably cooperate with Parent and Merger Sub to defend
against any such Proceedings. Notwithstanding the foregoing, the
Company may not settle or offer to settle any such Proceedings without the
prior
written consent of Parent (which consent may not be unreasonably withheld,
conditioned or delayed).
Section
6
Conditions
to Closing
6.1 Conditions
to Each Party’s Obligations. The respective obligation of each
party to complete the Merger is subject to the satisfaction or waiver (to the
extent permitted by Law) of the following conditions precedent:
42
(a) the
Company will have obtained the Required Shareholder Vote in accordance with
the
GBCC;
(b) any
applicable waiting period under the HSR Act relating to the Merger will have
expired or been terminated and all authorizations and Orders of, declarations
and filings with, and notices to the competition Authorities of Germany and
Austria required to permit the consummation of the Merger will have been
obtained or made and will be in full force and effect; and
(c) no
Law or
Order will be in effect prohibiting completion of the Merger (a “Legal
Restraint”).
6.2 Conditions
to Parent’s and Merger Sub’s Obligations. The obligations of
Parent and Merger Sub to complete the Merger are subject to the satisfaction
or
waiver (in the sole discretion of Parent and Merger Sub) of each of the
following conditions precedent:
(a) the
representations and warranties of the Company set forth in Sections 3.2(a)
through (c), 3.3(a) through (c), 3.3(f), 3.3(g) and 3.22 will be accurate in
all
respects (except in each case for inaccuracies that are de minimis in the
aggregate) as of the date of this Agreement and as of the Closing Date as though
made on the Closing Date (without taking into account any disclosures of
discoveries, events or occurrences arising on or after the date hereof), except
that representations or warranties which expressly relate to an earlier date
need only have been accurate as of that earlier date;
(b) the
representations and warranties of the Company set forth in this Agreement,
excluding those covered by Section 6.2(a), will be accurate in all respects
(determined in each case without giving effect to any materiality or Company
Material Adverse Effect qualifications therein) as of the date of this Agreement
and as of the Closing Date as though made on the Closing Date (without taking
into account any disclosures of discoveries, events or occurrences arising
on or
after the date hereof), except (i) for inaccuracies that have not had and would
not reasonably be expected to have a Company Material Adverse Effect; and (ii)
that representations or warranties which expressly refer to an earlier date
need
only have been accurate as of that earlier date;
(c) the
Company will have performed in all material respects each of the obligations
it
is required to perform at or prior to the Closing Date;
(d) no
Company Material Adverse Effect will have occurred after the date of this
Agreement;
(e) Parent
will have received a certificate signed on the Company’s behalf by the Company’s
Chief Executive Officer and Chief Financial Officer stating that each of the
conditions set forth in Sections 6.2(a), 6.2(b), 6.2(c) and 6.2(d) have been
satisfied; and
43
(f) no
Proceeding brought by an Authority will be pending or threatened (i) seeking to
prevent or delay completion of the Merger; (ii) asserting the illegality or
unenforceability of the Merger or any provision of this Agreement; (iii) seeking
to prohibit or impose any limitations on Parent’s or Merger Sub’s direct or
indirect (whether through one ore more Subsidiaries or otherwise) ownership
or
operation of an Acquired Company or any portion of an Acquired Company’s
business or assets, or to compel any such Person to dispose of or hold separate
any portion of the business or assets of the Company, Parent or any of their
respective Subsidiaries; (iv) seeking to limit the right of Parent, Merger
Sub
or any of their Affiliates to acquire or hold, or exercise full rights of
ownership of, any Company Common Stock; (v) seeking to prohibit Parent or any
of
its Affiliates from effectively controlling the business or operations of an
Acquired Company; or (vi) which otherwise would reasonably be expected to have
a
Company Material Adverse Effect.
6.3 Conditions
to the Company’s Obligation. The obligation of the Company to
complete the Merger is subject to the satisfaction or waiver (in the sole
discretion of the Company) of each of the following conditions
precedent:
(a) the
representations and warranties of Parent and Merger Sub contained in this
Agreement that are (i) qualified as to materiality or by reference to a Parent
Material Adverse Effect will be accurate in all respects or (ii) not so
qualified will be accurate in all material respects, in each case as of the
date
of this Agreement and as of the Closing Date as though made on the Closing
Date
(without taking into account any disclosures of discoveries, events or
occurrences arising on or after the date hereof), except that any such
representations or warranties which expressly refer to an earlier date need
only
have been accurate as of that earlier date;
(b) Parent
and Merger Sub will have performed in all material respects each of the
obligations they are required to perform at or prior to the Closing;
and
(c) the
Company will have received a certificate signed on behalf of Parent by an
authorized executive officer of Parent stating that each of the conditions
set
forth in Sections 6.3(a) and 6.3(b) have been satisfied.
Section
7
Termination
7.1 Termination. This
Agreement may be terminated, and the Merger may be abandoned, at any time prior
to the Effective Time:
(a) by
the
mutual written consent of Parent and the Company;
(b) by
either
Parent or the Company if:
(i) the
Merger has not been completed on or before February 1, 2008, except that this
termination right may not be exercised by a party if that party is then in
Breach of this Agreement and the Breach has prevented the Merger from being
completed on or before that date;
44
(ii) a
Legal
Restraint having the effect set forth in Section 6.1(c) is in effect and has
become final and not subject to further appeal; or
(iii) at
the
Shareholder Meeting (including any adjournment or postponement thereof), the
Required Shareholder Approval has not been obtained, except that the right
to
terminate the Agreement under this Section 7.1(c)(iii) will not be available
to
the Company if it has not complied with its obligations under Section 5.2 (other
than in any immaterial respect).
(c) by
Parent
if:
(i) whether
or not permitted under this Agreement, (1) a Change in Recommendation has
occurred; (2) the Company Board fails publicly to reconfirm its approval,
declaration of advisability and recommendation of this Agreement, the Merger
or
the other transactions contemplated by this Agreement within five Business
Days
following Parent’s request for reconfirmation; or (3) the Company Board resolves
to take any of the foregoing actions;
(ii) the
Company has Breached in any material respect any of its obligations under
Section 5.2; or
(iii) the
Company is in Breach of this Agreement, the Breach would result in the failure
to satisfy one or more of the conditions set forth in Sections 6.1 or 6.2,
and
in any such case, the Breach is incapable of being cured or, if capable of
being
cured, has not been cured within 30 days after written notice thereof has been
delivered to the Company.
(d) by
the
Company if:
(i) Parent
is
in Breach of this Agreement, the Breach would result in the failure to satisfy
one or more of the conditions set forth in Section 6.1 or 6.3, and in any such
case, the Breach is incapable of being cured or, if capable of being cured,
has
not been cured within 30 days after written notice thereof has been delivered
to
Parent; or
(ii) the
Company Board authorizes the Company, subject to complying with Section 5.2,
to
enter into a definitive agreement providing for the implementation of a Superior
Proposal, and the Company, prior to or concurrently with the termination of
this
Agreement, pays the Termination Fee to Parent.
7.2 Obligations
Upon Termination.
(a) The
right
of termination under Section 7.1 is in addition to any other rights that Parent,
Merger Sub or the Company may have under this Agreement or otherwise, and the
exercise of a right of termination will not constitute an election of remedies
and will not preclude an action for damages resulting from a Breach of this
Agreement. If this Agreement is terminated, all continuing
obligations of the parties under this Agreement will terminate, except that
the
penultimate sentence of Section 5.5 (Access to Information; Confidentiality),
Section 5.9 (fees and expenses), this Section 7.2 and Section 8 (miscellaneous
provisions) will survive indefinitely unless sooner modified or terminated
in
writing by the parties. Notwithstanding the second preceding
sentence, the parties agree that the amounts payable upon the occurrence of
the
events specified clauses (i) through (iii) of Section 7.2(b) will be the sole
and exclusive remedy of the Parent and Merger Sub upon termination of the
Agreement arising from the occurrence of such events.
45
(b) Notwithstanding
Section 5.9, the Company will pay to Parent a fee of $9,000,000 (the
“Termination Fee”) by wire transfer of immediately available funds to an
account designated by Parent if:
(i) this
Agreement is terminated by the Company under Section 7.1(d)(ii), with the
Termination Fee due and payable prior to or concurrently with the date of
termination;
(ii) this
Agreement is terminated by Parent under Section 7.1(c)(i) or Section 7.1(c)(ii),
with the Termination Fee due and payable in each case within one Business Day
after the date of termination; or
(iii) (1)
this
Agreement is terminated by Parent or the Company under Section 7.1(b)(i) or
Section 7.1(b)(iii), or by Parent under 7.1(c)(iii), (2)a Takeover Proposal
is
publicly made and not withdrawn prior to the date of termination, and (3)within
one year after termination either the Company enters into a definitive agreement
with respect to a Takeover Proposal or a Takeover Proposal is consummated,
then
the Termination Fee will be due and payable within one Business Day following
the earlier of the date on which the Company enters into such a definitive
agreement or such date on which the Takeover Proposal is
consummated.
(c) The
Company acknowledges that the agreements contained in Section 7.2(b) are an
integral part of the transactions contemplated by this Agreement, and that,
without these agreements, Parent would not enter into this
Agreement. If the Company fails to pay the Termination Fee when due,
the Termination Fee will be deemed to include the costs and expenses incurred
by
Parent (including all fees and expenses of counsel) in connection with the
collection under and enforcement of this Section 7.2, together with interest
on
the unpaid Termination Fee, beginning on the date that the Termination Fee
became due and continuing thereafter until paid in full, at a rate equal to
the
prime rate of Citibank N.A. (as in effect on the date payment was required
to be
made) plus 1%.
Section
8
Miscellaneous
Provisions
8.1 Interpretation
and Usage. In this Agreement, unless there is a clear contrary
intention: (a) when a
reference is made to an article, a section, an exhibit or a schedule, such
reference is to an article, a section, an exhibit or a schedule of or to this
Agreement; (b) the
singular includes the plural and vice versa; (c) reference to any agreement,
document or instrument means such agreement, document or instrument as amended
or modified and in effect from time to time in accordance with the terms
thereof; (d) reference to
any Law means such Law as amended, modified, codified, replaced or reenacted,
in
whole or in part, and in effect from time to time, including rules and
regulations promulgated thereunder, and reference to any section or other
provision of any Law means that provision of such Law from time to time in
effect and constituting the substantive amendment, modification, codification,
replacement or reenactment of such section or other provision; (e)“hereunder,” “hereof,”
“hereto,” and words of similar
import will be deemed references to this
Agreement as a whole and not to any particular article, section or other
provision of this Agreement; (f)“including” (and with
correlative meaning “include”) means including without limiting the generality
of any description preceding such term; (g)“or” is used in the inclusive
sense of “and/or”; (h)
references to agreements, documents or instruments will be deemed to refer
as
well to all addenda, exhibits, schedules or amendments thereto; (i) a statement that documents
have been “made available” to Parent means that the documents were either
delivered to Parent or posted on the Xxxxxxx Corporation data site established
by the Company in connection with the Merger; and (j) the disclosure of any
matter
in the Company Disclosure Schedules will not be construed (from the perspective
of either the Company or Parent) as (1) indicating that such
matter
is required to be disclosed therein, as some matters disclosed in the Company
Disclosure Schedules are provided for informational purposes only (provided
that
all matters required to be disclosed by the express terms of the Agreement
are
disclosed herein), or (2)
an admission or determination that such matter is “material” with respect to the
Company, has or would reasonably be expected to have a Company Material Adverse
Effect, or arose other than in the Ordinary Course of Business. All
accounting terms used in this Agreement will be interpreted and all accounting
determinations will be made in accordance with GAAP. The table of
contents and the headings of the sections and subsections of this Agreement
are
inserted for convenience of the parties only and will not constitute a part
hereof. The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event of an ambiguity or question
of intent or interpretation arises, this Agreement will be construed as if
drafted jointly by the parties, and no presumption or burden of proof will
arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.
46
8.2 Nonsurvival
of Representations and Warranties. None of the representations
and warranties in this Agreement or in any instrument delivered under this
Agreement will survive the Effective Time. This Section 8.2 will not
limit any covenant or agreement of the parties which by its terms contemplates
performance after the Effective Time. Without limiting the foregoing,
this Section 8, Section 2, Section 5.8, Section 5.9 and Section 5.11 will
survive the Effective Time.
8.3 Amendment
and Modification. Subject to applicable Law, this Agreement may
be amended or modified from time to time prior to the Effective Time, with
respect to any of the terms contained herein, except that all such amendments
and modifications must be set forth in a writing duly executed by Parent, Merger
Sub and the Company, by action duly authorized by their respective board of
directors.
8.4 Waiver
of Compliance; Consents. Any failure of a party to comply with
any obligation, covenant, agreement or condition herein may be expressly waived
in writing by the party entitled to such compliance, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement
or
condition will not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. No single or partial exercise of a right
or remedy will preclude any other or further exercise thereof or of any other
right or remedy hereunder. Whenever this Agreement requires or
permits the Consent by or on behalf of a party, such Consent must be given
in
writing in the same manner as for waivers of compliance.
47
8.5 No
Third Party Beneficiaries. Except for the rights granted to the
Indemnified Parties under this Agreement, nothing herein will entitle any Person
(other than a party hereto and his, her or its respective successors and assigns
permitted hereby) to any claim, cause of action, remedy or right of any
kind.
8.6 Notices. All
notices, requests, demands and other communications required or permitted
hereunder must be made in writing and will be deemed to have been duly given
and
effective: (a)
on the date of delivery, if delivered personally; (b) on the earlier of the
fourth
day after mailing or the date of the return receipt acknowledgment, if mailed,
postage prepaid, by certified or registered mail, return receipt requested;
(c) on the date of
transmission, if sent by facsimile; or (d) on the date of requested
delivery if sent by a recognized overnight courier:
If
to the
Company,
to: Microtek
Medical Holdings, Inc.
00000
Xxxxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
Attention:
President
Fax:
(000) 000-0000
With
a
copy
to: Xxxxxx
Xxxxxx Xxxxxxx LLP
000
00xx Xxxxxx
XX,
Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000-0000
Attn:
Xxxxxxx X. Xxx, Esq.
Fax:
(000) 000-0000
or
to
such other person or address as the Company may furnish to Parent in writing
in
accordance with this Section 8.6.
If
to
Parent,
to: Ecolab
Inc.
000
Xxxxxxx Xxxxxx Xxxxx
Xx.
Xxxx,
Xxxxxxxxx 00000-0000
Attention:
Executive Vice President, Industrial Sector
Fax: (000)
000-0000
With
a
copy
to: Ecolab
Inc.
000
Xxxxxxx Xxxxxx Xxxxx
Xx.
Xxxx,
Xxxxxxxxx 00000-0000
Attention:
General Counsel
Fax: (000)
000-0000
48
or
to
such other person or address as Parent may furnish to the Company in writing
in
accordance with this Section 8.6.
8.7 Assignment. This
Agreement and all of the provisions hereof will be binding upon and inure to
the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned
(whether voluntarily, involuntarily, by operation of law or otherwise) by any
of
the parties hereto without the prior written consent of the other parties,
except that Parent may assign this Agreement, in whole or in any part and from
time to time, to any Subsidiary or other Affiliate of Parent provided Parent
remains bound by this Agreement.
8.8 Governing
Law and Venue.
(a) This
Agreement and the legal relations among the parties hereto will be governed
by
and construed in accordance with the internal substantive laws of the State
of
Delaware (without regard to the laws of conflict that might otherwise apply)
as
to all matters (other than with respect to matters governed by the GBCC),
including matters of validity, construction, effect, performance and
remedies.
(b) The
parties hereto hereby irrevocably submit to the exclusive jurisdiction of the
courts of the State of Delaware and the Federal courts of the United States
of
America located in the State of Delaware in respect of all matters arising
out
of or relating to this Agreement the interpretation and enforcement of the
provisions of this Agreement, and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that
it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced
in
or by such courts, and the Parties hereto irrevocably agree that all claims
with
respect to such action or proceeding will be heard and determined exclusively
in
such a Delaware State or Federal court. The Parties hereby consent to
and grant any such court jurisdiction over the person of such Parties solely
for
such purpose and over the subject matter of such dispute and agree that mailing
of process or other papers in connection with any such action or proceeding
in
the manner provided in Section 8.6 or in such other manner as may be permitted
by law will be valid and sufficient service thereof.
8.9 Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument. This Agreement will become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
parties. Facsimile transmission of any signed original document and
retransmission of any signed facsimile transmission will be deemed the same
as
delivery of an original. At the request of any party, the parties
will confirm facsimile transmission by signing a duplicate original document.
49
8.10 Enforcement. The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are Breached. Therefore, each party (a) hereby waives, in any
action
for specific performance, the defense of adequacy of a remedy at law and any
requirement for the posting of any bond or other security in connection with
any
such remedy; and (b)
agrees that the other parties will be entitled to specific performance of this
Agreement in any Proceeding initiated to enforce the terms hereof, including
the
issuance of an Order or Orders to prevent or restrain any actual or threatened
Breach of this Agreement, in each case without any requirement to post any
bond
or provide other security. The remedy of specific performance will be
in addition to any other remedy or remedies to which the other parties may
be
entitled at law or in equity.
8.11 Entire
Agreement. This Agreement, including the annexes, exhibits and
schedules hereto, embody the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein and supersede all
prior
agreements and the understandings between the parties with respect to such
subject matter, other than the Confidentiality Agreement. No
discussions regarding, or exchange of drafts or comments in connection with,
the
transactions contemplated herein will constitute an agreement among the parties
hereto. Any agreement among the parties will exist only when the
parties have fully executed and delivered this Agreement.
8.12 Severability. If
any term or other provision of this Agreement is held to be invalid, illegal
or
incapable of being enforced by any rule of Law or public policy, all other
terms
and provisions of this Agreement will nevertheless remain in full force and
effect so long as the economics or legal substance of the transactions
contemplated hereby are not affected in any manner materially adverse to any
party. Upon determination that any term or other provision hereof is
invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted
by
applicable Law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
8.13 WAIVER
OF JURY TRIAL. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL OF ANY
CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
MAKING, PERFORMANCE OR INTERPRETATION THEREOF, INCLUDING FRAUDULENT INDUCEMENT
THEREOF.
[Remainder
of page intentionally left blank. Signature page follows.]
50
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
PARENT:
|
MERGER
SUB:
|
|
ECOLAB
INC., a Delaware corporation
|
MAGIC
ACQUISITION INC., a Georgia
|
|
corporation
|
||
By:
/s/ Xxxxxxx X. Xxxxx, Xx.
|
By:
/s/ Xxxxxxx X. Xxxxxxx
|
|
Name:
Xxxxxxx X. Xxxxx, Xx.
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
Title:
Chairman, President & CEO
|
Title:
President
|
|
THE
COMPANY:
|
||
MICROTEK
MEDICAL HOLDINGS, INC., a Georgia corporation
|
||
By:
/s/ Xxx X. Xxx
|
||
Name:
Xxx X. Xxx
|
||
Title:
President & CEO
|
51
EXHIBIT A
DEFINITIONS
“Acquired
Companies” means the Company and the Company Subsidiaries.
“Affiliate”
means, with respect to a specified Person, any Person that directly or
indirectly through one or more intermediaries controls, is controlled by, or
is
under common control with, the specified Person, where “control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of voting securities, by contract, as trustee or executor or
otherwise.
“Agreement”
is defined in the Preamble.
“Antitrust
Division” is defined in Section 5.6(b).
“Antitrust
Filings” is defined in Section 5.6(b).
“Authority”
means any U.S. or non-U.S. federal, state, provincial, local or other
governmental or quasi-governmental, administrative, regulatory or judicial
court, department, commission, agency, board, bureau, instrumentality or other
similar authority. For the avoidance of doubt, this term includes the
NYSE and NASDAQ.
“Board
Recommendation” is defined in Section 5.4.
“Bonus
Plans” is defined in Section 5.11(g).
“Breach”
means (a) with respect to any Contract, any breach of or inaccuracy in any
express or implied representation or warranty given in connection with the
Contract, any breach of or failure to perform or comply with any express or
implied covenant or obligation in connection with the Contract, or the
occurrence of any default or event of default, however defined, in connection
with the Contract, (b) with respect to any Law or Order (including any Permit),
any violation or other failure to comply with any obligation or restriction
contained in or imposed by the Law or Order (including any Permit), or (c)
with
respect to any of the foregoing, any event which with the passing of time or
the
giving of notice, or both, would constitute a Breach of the Contract, Law or
Order (including any Permit).
“Business
Combination Transaction” is defined in Section 5.2(g)(i).
“Business
Day” means any day other than (a) Saturday or Sunday or (b) any other day on
which banks in Atlanta, Georgia are permitted or required to be
closed.
“Certificate
of Merger” is defined in Section 1.2(b).
“Change
in Recommendation” is defined in Section 5.2(g)(ii).
“Closing”
is defined in Section 1.2(a).
“Closing
Date” is defined in Section 1.2(a).
A-1
“Code”
means the Internal Revenue Code of 1986.
“Company”
is defined in the first paragraph of this Agreement.
“Company
Non-U.S. Plan” means a Company Plan maintained outside of the United States
primarily for the benefit of Company Personnel working outside of the United
States.
“Company
Board” means the board of directors of the Company.
“Company
Common Stock” means shares of common stock, $.001 par value per share, of
the Company.
“Company
Disclosure Schedule” is defined in the preamble to Section 3.
“Company
Material Adverse Effect” means any change, effect, event, violation,
inaccuracy, circumstance or condition (whether considered individually or in
the
aggregate with other changes, effects, events, circumstances or conditions)
that
(a) has had or would reasonably be expected to have a material adverse effect
on
the business, operations, results of operations, assets, properties, Liabilities
or financial condition of the Acquired Companies taken as a whole, or (b)
materially impedes or delays, or is reasonably likely to materially impede
or
delay, the consummation of the transaction contemplated by this Agreement,
except that none of the following will be considered (either alone or in
combination) in determining whether a Company Material Adverse Effect has
occurred: (i) general changes in the United States, European Union or global
economic, financial market or regulatory conditions (except to the extent that
such developments have a disproportionate effect on the Acquired Companies),
(ii) general changes in the healthcare market (except to the extent that such
changes have a disproportionate effect on the Acquired Companies), (iii) any
action or inaction by an Acquired Company that Parent approves or consents
to in
writing or which is taken or not taken in compliance with or in performance
of
this Agreement, (iv) the announcement or existence of this Agreement and the
transactions contemplated hereby, (v) changes in any laws or applicable
accounting regulations or principles (except to the extent that such changes
have a disproportionate effect on the Acquired Companies), (vi) any change,
in
and of itself, in the price or trading volume of Company Common Shares, or
(vii)
the failure of the Company to meet projections of earnings, revenues or other
financial measures (whether such projections were made by the Company or
independent third parties), in and of itself, it being agreed that the facts
or
occurrences resulting in the effects referred to in clause (vi) and (vii) will
be taken into account in determining whether there has been a Company Material
Adverse Effect, unless such facts or occurrences are otherwise excluded from
such determination.
“Company
Non-U.S. Plans” is defined in Section 3.13(a).
“Company
Personnel” means any current or former director, officer, employee or
independent contractor of an Acquired Company or any of their ERISA Affiliates
or any former direct or indirect Subsidiary of an Acquired Company or any of
their ERISA Affiliates.
“Company
Plan” means any collective bargaining agreement or any employment, bonus,
pension, profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock appreciation, restricted stock, stock option,
“phantom” stock, performance, retirement, thrift, savings, stock bonus, paid
time off, perquisite, fringe benefit, vacation, severance, disability, death
benefit, hospitalization, medical, welfare benefit or other plan, program,
policy, arrangement or agreement (whether or not subject to ERISA) which is
maintained, contributed to or required to be maintained or contributed to by
the
Company or any ERISA Affiliate, in each case providing benefits to any Company
Personnel.
A-2
“Company
Real Property” is defined in Section 3.14(b).
“Company
Restricted Shares” is defined in Section 2.5(b).
“Company
SEC Documents” is defined in Section 3.5(a).
“Company
Share Awards” is defined in Section 3.2(c).
“Company
Share Plans” is defined in Section 3.2(b).
“Company
Stock Option” is defined in Section 2.5(a).
“Company
Subsidiary” means a Subsidiary of the Company.
“Consent”
means any consent, approval, ratification, waiver or other
authorization.
“Confidentiality
Agreement” means the confidential disclosure agreement, dated as of April 5,
2007, between Parent and the Company.
“Contract”
means any written, oral or other agreement, contract, subcontract, lease,
binding understanding, obligation, promise, instrument, indenture, mortgage,
note, option, warranty, purchase order, license, sublicense, commitment or
undertaking of any nature, which, in each case, is legally binding upon a party
or on any of its Subsidiaries.
“Copyright”
means any registered or unregistered writing or other work of
authorship.
“Dissenting
Shares” is defined in Section 2.4(a).
“Xxxxxxx”
is defined in Section 3.3(b).
“Effective
Time” is defined in Section 1.2(b).
“Encumbrance”
means, with respect to any asset or security, any mortgage, deed of trust,
lien,
pledge, charge, security interest, conditional sale or other security
arrangement, collateral assignment, adverse claim of title, ownership or right
to use, restriction, right of first refusal or offer or other encumbrance of
any
kind in respect of such asset or security.
“Environment”
means soil, land surface or subsurface strata, surface water, ground water,
drinking water supplies, stream sediments, ambient air (including indoor air),
plant and animal life and any other environmental medium or natural
resource.
“Environmental
Law” means any Law, Permit or Order relating to the pollution,
contamination, protection or clean-up of the Environment or to human health
and
safety, including any Law, Permit or Order that requires record-keeping,
notification or reporting of matters relating to the Environment.
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“Environmental
Liabilities” means all Liabilities, costs, expenses, penalties, fines,
damages or other payment or performance obligations relating to the Environment,
whether direct or indirect, and whether arising under an Environmental Law
or
based on Contract, contribution, negligence, trespass, strict liability,
nuisance, toxic tort or any other cause of action or theory, including any
(a)
cleanup, removal, corrective, containment or other remediation or response
actions or (b) actual or alleged Breach of any Environmental Law by any Person,
whether or not such Breach involves the Company Real Property or the Former
Company Real Property.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means any Person that, together with an Acquired Company, is
treated as a single employer under Sections 414(b), (c), (m) or (o) of the
Code.
“ERISA
Plans” is defined in Section 3.13(b).
“ESPP”
is defined in Section 2.5(d).
“Exchange
Act” means the Securities Exchange Act of 1934.
“Fairness
Opinion” is defined in Section 3.3(b).
“FDA”
means the United States Food and Drug Administration.
“Former
Company Real Property” means any real property, other than the Company Real
Property, that the Company or any current or former Company Subsidiary has
ever
owned, leased, controlled or occupied.
“FTC”
means the United States Federal Trade Commission.
“Fund”
is defined in Section 2.2(a).
“GAAP”
means accounting principles generally accepted in the United
States.
“GBCC”
is defined in Recital A.
“Governing
Documents” means, with respect to a specified Person, (a) if a corporation,
the articles or certificate of incorporation and the bylaws; (b) if a general
partnership, the partnership agreement and any statement of partnership; (c)
if
a limited partnership, the limited partnership agreement and the certificate
of
limited partnership; (d) if a limited liability company, the articles of
organization and operating agreement; (e) if another type of Person, any other
charter or similar document adopted or filed in connection with the creation,
formation or organization of the Person; (f) all equity holders’ agreements,
voting agreements, voting trust agreements, joint venture agreements,
registration rights agreements or other agreements or documents relating to
the
organization, management or operation of any Person or relating to the rights,
duties and obligations of the equity holders of any Person; and (g) any
amendment or supplement to any of the foregoing.
A-4
“HSR
Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976.
“HSR
Filing” is defined in Section 5.6(b).
“Hazardous
Material” means any liquid, solid or gaseous substance of any kind or nature
that is regulated under any Environmental Law, including petroleum products
and
by-products, asbestos and asbestos-containing materials, medical and infectious
wastes, urea formaldehyde, polychlorinated byphenyls, radon gas, radioactive
substances and chlorofluorocarbons and other ozone-depleting
substances.
“Indemnified
Party” is defined in Section 5.8(a).
“Intellectual
Property” means all intellectual property and other similar proprietary
rights in any jurisdiction, whether owned or held for use under license and
whether registered or unregistered, including all (a) Marks, Patents and
Copyrights; (b) confidential and/or proprietary information, trade secrets
and
know-how, including customer lists, customer data, technical information, plans,
drawings, designs, formulae, process technology, manuals, data, records,
procedures, product packaging instructions, product specifications and
formulations, analytical methods, sources and specifications for raw materials,
health and safety information, environmental compliance and regulatory
information, research and development records, data and
reports (collectively, “Proprietary Information”), (c)
software, including data files, source code, object code, application
programming interfaces, databases and other software-related specifications
and
documentation; and (d) claims, causes of action and defenses relating to the
enforcement of any of the forgoing.
“IRS”
means the United States Internal Revenue Service.
“knowledge”
means, with respect to the Company, the knowledge of any one or more of the
Persons identified on the attached Exhibit B, and includes for each both
the actual knowledge of that Person and the knowledge that Person would
reasonably be expected to obtain in the course of preparing the Company
Disclosure Schedule.
“Latest
Company Balance Sheet” means the consolidated balance sheet included in the
most recent Company SEC Documents.
“Law”
means any federal, state, provincial, local, municipal or other law, statute,
constitution, principle of common law, ordinance, code, permit, rule,
regulation, policy, guideline, ruling, Order or requirement issued, enacted,
adopted, promulgated, implemented or otherwise put into effect by or under
the
authority of any Authority.
“Lease”
is defined in Section 3.14(b).
“Leased
Real Property” is defined in Section 3.14(b).
“Legal
Restraint” is defined in Section 6.1(c).
A-5
“Liability”
means, with respect to any Person, any liability or obligation of that Person
of
any kind, character or description, whether known or unknown, absolute or
contingent, accrued or unaccrued, asserted or unasserted, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint or several,
due or to become due, vested or unvested, executory, determined, determinable
or
otherwise, and whether or not the same is required to be accrued on the
financial statements of that Person in accordance with GAAP.
“Xxxx”
means any registered or unregistered trademark, service xxxx, trade name,
product name, d/b/a, certification xxxx, Internet domain name, uniform resource
locator, slogan, logo, symbol, trade dress or other indicia of origin, in each
case together with the associated goodwill.
“Material
Contract” is defined in Section 3.17(a).
“Material
IP” is defined in Section 3.15(b).
“Merger”
is defined in Recital A.
“Merger
Consideration” is defined in Section 2.1(a)(i).
“Merger
Sub” is defined in the first paragraph of this Agreement.
“NASDAQ”
means the NASDAQ Stock Market, Inc.
“New
Plans” is defined in Section 5.11(c).
“NYSE”
means the New York Stock Exchange LLC.
“Old
Plan” is defined in Section 5.11(b).
“Order”
means any order, injunction, judgment, decree, ruling, assessment or arbitration
award of any Authority or arbitrator.
“Ordinary
Course of Business” means, with respect to a specified Person, action that
(a) is consistent in nature, scope and magnitude with the past practices of
such Person and is taken in the ordinary course of such Person’s normal
operations, (b) does not require authorization by such Person’s partners, board
of directors, equity holders, trustees, beneficiaries or other Persons acting
in
a similar capacity and does not require any other separate or special
authorization, and (c) is similar in nature, scope and magnitude to actions
customarily taken, without any separate or special authorization, in the
ordinary course of normal operations of other Persons in the same line of
business as such Person.
“Owned
Real Property” is defined in Section 3.14(a).
“Parent”
is defined in the first paragraph of this Agreement.
“Parent
Material Adverse Effect” means a material adverse effect on Parent’s ability
to consummate the transactions contemplated by this Agreement or to perform
its
obligations under this Agreement.
A-6
“Parent
Subsidiary” means a Subsidiary of Parent.
“Patent”
means any patent, patent application (including any reissue, division,
continuation-in-part or extension), invention or discovery that may be
patentable and any improvements thereto.
“Paying
Agent” is defined in Section 2.2(a).
“Permit”
means any Consent, license, registration, variance or permit issued, granted,
given or otherwise made available by or under the authority of any Authority
or
under any Law.
“Permitted
Encumbrance” means any Encumbrance (a) for Taxes not yet due and payable or
which currently are being contested in good faith by appropriate Proceedings,
(b) for mechanics’, carriers’, workmen’s, repairmen’s or other like liens
(inchoate or otherwise) arising or incurred in the Ordinary Course of Business
in respect of obligations which are not overdue; (b) that does not materially
detract from the value of affected property; (c) that does not materially
interfere with the relevant Acquired Company’s current or currently projected
uses of the affected property at full capacity; or (d) the lien securing the
Company’s revolving credit facility described in the Company SEC
Documents.
“Person”
means an individual, partnership, corporation, business trust, limited liability
company, limited liability partnership, joint stock company, trust,
unincorporated association, joint venture or other entity (including any
Authority).
“Proceeding”
means any action, arbitration, audit, hearing, investigation, inquiry,
litigation or suit (whether civil, criminal, administrative, judicial or
investigative, whether formal or informal, whether public or private) commenced,
brought, conducted or heard by or before, or otherwise involving, any Authority
or arbitrator.
“Proxy
Statement” means the proxy or information statement which is delivered to
the Company’s shareholders in connection with the Shareholder Meeting, together
with any amendments or supplements thereto.
“Release”
means any spill, emission, discharge, leak, escape, injection, deposit,
disposal, dispersal, xxxxx, migration or other release or threatened release,
however defined and whether intentional or unintentional, of any Hazardous
Material into or within the Environment.
“Representative”
means, with respect to any Person, any director, manager, partner, officer
or
employee of that Person or any investment banker, financial advisor, attorney,
accountant or other advisor, agent or representative of that
Person.
“Required
Shareholder Vote” is defined in Section 3.3(a).
“Rights”
is defined in Section 3.3(g).
“Rights
Agreement” is defined in Section 3.3(g).
“Securities
Act” means the Securities Act of 1933.
A-7
“SEC”
means the United States Securities and Exchange Commission.
“Shareholder
Meeting” is defined in Section 5.4.
“Software”
means all computer software and subsequent versions thereof, including source
code, object, executable or binary code, objects, comments, screens, user
interfaces, report formats, templates, menus, buttons and icons and all files,
data, materials, manuals, design notes and other items and documentation related
thereto or associated therewith.
“SOX”
means the Xxxxxxxx-Xxxxx Act of 2002.
“Stockholder
Vote Option” is defined in Section 5.4.
“Subsidiary”
means, with respect to a specified Person, any other Person in which more than
50% of the securities or other ownership interests having the power to (a)
elect
a majority of the other Person’s board of directors or other governing body or
(b) otherwise direct the business and policies of the other Person, are owned
or
controlled, directly or indirectly, by (x) the specified Person,
(y) the specified Person and one or more Subsidiaries of the specified Person,
or (z) one or more Subsidiaries of the specified Person.
“Superior
Proposal” is defined in Section 5.2(g)(iii).
“Surviving
Corporation” is defined in Section 1.1.
“Takeover
Proposal” is defined in Section 5.2(g)(iv).
“Takeover
Statute” is defined in Section 3.3(f).
“Tax”
means (a) any income, gross income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, property (real,
tangible or intangible), Environmental (including taxes under Code Section
59A),
windfall profit, customs, vehicle, airplane, boat, vessel or other title or
registration, capital stock, franchise, employees’ income withholding, foreign
or domestic withholding, social security, unemployment, disability, real
property, personal property, sales, use, ad valorem, transfer, value added,
alternative, add-on minimum and other tax, fee, assessment, levy, tariff, charge
or duty of any kind whatsoever (including, for the avoidance of doubt, any
amounts owed to any Authority or other Person in respect of unclaimed property
or escheat laws) and any interest, penalty, addition to tax or additional
amount, whether disputed or not, thereon imposed, assessed or collected by
or
under the authority of any Authority responsible for the imposition of such
tax,
(b) any liability for the payment of any amounts of the type described in clause
(i) of this definition as a result of being a member of an affiliated,
consolidated, combined, unitary or aggregate group for any taxable period,
and
(c) any liability for the payment of any amounts of the type described in clause
(i) or (ii) of this sentence as a result of being a party to a tax sharing
agreement, a transferee of or successor to any Person, or as a result
of any express or implied obligation to assume such Taxes or to indemnify any
other Person.
“Tax
Return” means any return, statement, declaration, report, estimate, notice,
form, schedule or other document (including estimated Tax returns and reports,
withholding Tax returns and reports, any schedule or attachment, information
returns and reports and any amendment to any of the foregoing) relating to
Taxes.
A-8
“Termination
Fee” is defined in Section 7.2(b).
“Third
Party” is defined in Section 5.2(g)(v).
“Voting
Debt” means, with respect to a particular Person, any bonds, debentures,
notes or other forms of indebtedness having the right to vote (or convertible
into securities having the right to vote) on any matter on which a shareholder
of such Person may vote.
A-9
EXHIBIT
B
PERSONS
WITH KNOWLEDGE
Xxx
X.
Xxx, Chief Executive Officer
Xxxxx
X.
Xxxxxx Chief Financial Officer
Xxxx
Xxxxxxx, Chief Operating Officer
Xxxxxxxxx
X. Xxxxx, Vice President, Legal
Xxxxxxx
Xxxxx, Vice President, Business Development
Xxxxx
Xxxxxx, Vice President, Finance
Xxxxx
Xxxxxx, Vice President, International
Xxxx
Xxxxxx, Vice President, Innovative Services
Xxxxxx
Xxxxxx, Vice President, Regulatory and Quality Affairs
Xxxxxx
Xxxxxx, Vice President, Global Manufacturing
B-1