EXECUTION COPY
----------------------------
AGREEMENT AND PLAN OF MERGER
AMONG
XXXXXXX CONTROLS, INC.,
YJC ACQUISITION CORP.
AND
YORK INTERNATIONAL CORPORATION
DATED AS OF
AUGUST 24, 2005
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TABLE OF CONTENTS
PAGE
ARTICLE 1 THE MERGER.........................................................1
Section 1.1. The Merger...........................................1
Section 1.2. Closing..............................................1
Section 1.3. Effective Time.......................................1
Section 1.4. Effects of the Merger................................2
Section 1.5. Certificate of Incorporation.........................2
Section 1.6. By-Laws..............................................2
Section 1.7. Officers and Directors...............................2
Section 1.8. Effect on Capital Stock..............................2
Section 1.9. Company Stock Options and Other Equity-Based Awards..3
Section 1.10. Certain Adjustments..................................4
ARTICLE 2 CONVERSION OF SHARES...............................................5
Section 2.1. Paying Agent.........................................5
Section 2.2. Payment Procedures...................................5
Section 2.3. Undistributed Merger Consideration...................5
Section 2.4. No Liability.........................................5
Section 2.5. Investment of Merger Consideration...................6
Section 2.6. Lost Certificates....................................6
Section 2.7. Withholding Rights...................................6
Section 2.8. Further Assurances...................................6
Section 2.9. Stock Transfer Books.................................6
Section 2.10. Dissenting Shares....................................6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF COMPANY..........................7
Section 3.1. Organization and Qualification.......................7
Section 3.2. Capitalization.......................................8
Section 3.3. Authorization........................................9
Section 3.4. No Violation.........................................9
Section 3.5. Filings with the SEC; Financial Statements;
Xxxxxxxx-Xxxxx Act..................................10
Section 3.6. Proxy Statement.....................................12
Section 3.7. Board Approval......................................13
Section 3.8. Absence of Certain Changes..........................13
Section 3.9. Litigation; Orders..................................13
Section 3.10. Permits; Compliance with Laws.......................14
Section 3.11. Tax Matters.........................................14
Section 3.12. Environmental Matters...............................16
Section 3.13. Intellectual Property...............................17
Section 3.14. Employee Benefits...................................17
Section 3.15. Labor Matters.......................................21
Section 3.16. Certain Contracts...................................21
Section 3.17. Properties and Assets...............................22
Section 3.18. Insurance...........................................22
Section 3.19. Opinion of Financial Advisor........................23
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Section 3.20. No Brokers or Finders.....................................23
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PARENT..........................23
Section 4.1. Organization and Qualification......................23
Section 4.2. Authorization.......................................23
Section 4.3. No Violation........................................24
Section 4.4. Filings with the SEC; Financial Statements..........24
Section 4.5. Litigation..........................................25
Section 4.6. Available Funds.....................................25
Section 4.7. Capitalization of Merger Sub........................25
ARTICLE 5 COVENANTS RELATING TO CONDUCT OF BUSINESS.........................25
Section 5.1. Covenants of Company................................25
Section 5.2. Proxy Statement; Company Stockholders Meeting.......28
Section 5.3. Access and Information..............................30
Section 5.4. Reasonable Best Efforts.............................30
Section 5.5. Acquisition Proposals...............................32
Section 5.6. Indemnification; Directors and Officers Insurance...35
Section 5.7. Employee Benefits...................................35
Section 5.8. Public Announcements................................35
Section 5.9. Section 16 Matters..................................35
Section 5.10. State Takeover Laws.................................36
Section 5.11. Notification of Certain Matters.....................36
Section 5.12. Certain Litigation..................................36
Section 5.13. Confidentiality.....................................36
Section 5.14. Resignations........................................37
ARTICLE 6 CONDITIONS TO THE MERGER..........................................37
Section 6.1. Conditions to Each Party's Obligation to Effect
the Merger..........................................37
Section 6.2. Additional Conditions to Obligations of Parent
and Merger Sub......................................37
Section 6.3. Additional Conditions to Obligation of Company......38
ARTICLE 7 TERMINATION, AMENDMENT AND WAIVER.................................39
Section 7.1. Termination.........................................39
Section 7.2. Effect of Termination...............................41
Section 7.3. Amendment...........................................42
Section 7.4. Waiver..............................................42
ARTICLE 8 MISCELLANEOUS.....................................................42
Section 8.1. Non-Survival of Representations, Warranties and
Agreements..........................................42
Section 8.2. Expenses............................................42
Section 8.3. Notices.............................................42
Section 8.4. Entire Agreement; No Third Party Beneficiaries......43
Section 8.5. Assignment; Binding Effect..........................44
Section 8.6. Governing Law; Consent to Jurisdiction..............44
Section 8.7. Severability........................................44
Section 8.8. Enforcement of Agreement............................44
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Section 8.9. Waiver of Jury Trial................................44
Section 8.10. Counterparts........................................44
Section 8.11. Headings............................................45
Section 8.12. Interpretation......................................45
Section 8.13. Definitions.........................................45
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INDEX OF DEFINED TERMS
DEFINED TERM SECTION
Acquisition Proposal................................................. 8.13(a)
Affiliates........................................................... 8.13(b)
Agreement............................................................ Preamble
Business Day......................................................... 8.13(c)
Capitalization Date.................................................. 3.2(a)
Certificate of Merger................................................ 1.3
Certificates......................................................... 2.2
Change in Company Recommendation..................................... 5.2(b)
Closing.............................................................. 1.2
Closing Date......................................................... 1.2
Code................................................................. 1.9
Company.............................................................. Preamble
Company Board Approval............................................... 3.7
Company Common Stock................................................. Recitals
Company Contract..................................................... 8.13(d)
Company Disclosure Schedule.......................................... Article 3
Company Intellectual Property........................................ 3.13(a)
Company Permits...................................................... 3.10
Company Recommendation............................................... 5.2(b)
Company Requisite Stockholder Vote................................... 3.3
Company Restricted Shares............................................ 1.9(c)
Company SEC Reports.................................................. 3.5(a)
Company Stock-Based Award............................................ 1.9(b)
Company Stockholders Meeting......................................... 5.2(b)
Company Stock Options................................................ 1.9(c)
Company Stock Plans.................................................. 3.2(a)
Company Voting Debt.................................................. 3.2(a)
Confidentiality Agreement............................................ 5.13
Contract............................................................. 3.4(a)
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DEFINED TERM SECTION
DGCL................................................................. 1.1
Dissenting Shares.................................................... 2.10
D&O Insurance........................................................ 5.6
DOJ.................................................................. 5.4(c)
EC Merger Regulation................................................. 3.4(b)
Effective Time....................................................... 1.3
Employee Benefit Plans............................................... 3.14(a)
Environmental Laws................................................... 3.12(a)
ERISA................................................................ 3.14(a)
ERISA Affiliate...................................................... 3.14(b)
Exchange Act......................................................... 3.4(b)
Foreign Benefit Plan................................................. 3.14(l)
FTC.................................................................. 5.4(c)
GAAP................................................................. 3.5(b)
Governmental Entity.................................................. 3.4(b)
Hazardous Substance.................................................. 8.13(e)
HSR Act.............................................................. 3.4(b)
Intellectual Property Rights......................................... 8.13(f)
Law.................................................................. 3.4(a)
Liens................................................................ 3.2(b)
Material Adverse Effect.............................................. 8.13(g)
Merger............................................................... Recitals
Merger Consideration................................................. 1.8(a)
Merger Sub........................................................... Preamble
Multiemployer Plan................................................... 3.14(b)
Necessary Consents................................................... 3.4(b)
Order................................................................ 3.4(a)
Parent............................................................... Preamble
Parent Disclosure Schedule........................................... Article 4
Parent SEC Reports................................................... 4.4(a)
Paying Agent......................................................... 2.1
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DEFINED TERM SECTION
PBGC................................................................. 3.14(c)
Person............................................................... 8.13(h)
Proxy Statement...................................................... 5.2(a)
Regulatory Law....................................................... 8.13(i)
Representatives...................................................... 5.5(a)
SEC.................................................................. 3.5(a)
Securities Act....................................................... 3.5(a)
SPP Shares........................................................... 1.9(g)
Stock Purchase Plan.................................................. 1.9(g)
Subsidiaries......................................................... 8.13(j)
Superior Proposal.................................................... 8.13(k)
Surviving Corporation................................................ 1.1
Taxes................................................................ 8.13(l)
Tax Return........................................................... 8.13(m)
Termination Date..................................................... 7.1(b)
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is made and
effective as of August 24, 2005 among XXXXXXX CONTROLS, INC., a Wisconsin
corporation ("PARENT"), YJC ACQUISITION CORP., a Delaware Corporation and a
wholly owned subsidiary of Parent ("MERGER SUB"), and YORK INTERNATIONAL
CORPORATION, a Delaware Corporation ("COMPANY").
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and
Company desire to enter into a transaction whereby Merger Sub will merge with
and into Company (the "MERGER"), pursuant to which each issued and outstanding
share of Common Stock, par value $.005 per share, of Company ("COMPANY COMMON
STOCK") not owned directly or indirectly by Company will be converted into the
right to receive the Merger Consideration; and
WHEREAS, in furtherance thereof, the respective Boards of Directors of
Parent, Merger Sub and Company have approved this Agreement and the
consummation of the transactions contemplated hereby, including the Merger; and
WHEREAS, Parent, Merger Sub and Company desire to make certain
representations, warranties and agreements in connection with, and to prescribe
certain conditions to, the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations, warranties and agreements set forth herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
THE MERGER
Section 1.1. THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with the Delaware General Corporation Law
(the "DGCL"), Merger Sub shall be merged with and into Company at the Effective
Time. Following the Effective Time, Company shall continue as the surviving
corporation (the "SURVIVING CORPORATION") and the separate corporate existence
of Merger Sub shall terminate.
Section 1.2. CLOSING. The closing of the Merger (the "CLOSING") shall occur at
10:00 a.m., local time, on the first Business Day after the satisfaction or
waiver of the conditions set forth in ARTICLE 6, other than conditions which by
their nature are to be satisfied at Closing, or such other time and date as
Parent and Company shall agree in writing, unless this Agreement has been
theretofore terminated pursuant to its terms (the actual time and date of the
Closing is referred to as the "CLOSING DATE"). The Closing shall be held at the
offices of Xxxxx & Lardner LLP, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000 or such other place as Parent and Company shall agree in writing.
Section 1.3. EFFECTIVE TIME. At the Closing, the parties hereto shall (a) file a
certificate of merger (the "CERTIFICATE OF MERGER") with the Secretary of State
of the State of Delaware in such
form as is required by, and executed in accordance with, the relevant provisions
of the DGCL and (b) make all other filings or recordings required by the DGCL to
effectuate the Merger. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of the State of
Delaware or at such subsequent time as Parent and Company shall agree and
specify in the Certificate of Merger (the date and time that the Merger becomes
effective is referred to as the "EFFECTIVE TIME").
Section 1.4. EFFECTS OF THE MERGER. At and after the Effective Time, the Merger
shall have the effects set forth in the DGCL.
Section 1.5. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Company, as in effect immediately prior to the Effective Time, shall be amended
to reflect only the provisions set forth in the Certificate of Incorporation of
Merger Sub, and the Certificate of Incorporation of Company, as so amended,
shall be the certificate of incorporation of the Surviving Corporation, until
thereafter amended in accordance with applicable Law.
SECTION 1.6. BY-LAWS. The Amended and Restated By-Laws of Company, as in effect
immediately prior to the Effective Time, shall be the by-laws of the Surviving
Corporation, until thereafter amended in accordance with applicable Law.
Section 1.7. OFFICERS AND DIRECTORS. The officers of Company immediately prior
to the Effective Time shall be the officers of the Surviving Corporation, until
the earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be. The directors of Merger Sub
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation, until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
Section 1.8. EFFECT ON CAPITAL STOCK. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any shares of Company
Common Stock or any shares of capital stock of Merger Sub:
(a) Each share of Company Common Stock issued and outstanding immediately
prior to the Effective Time (other than shares canceled pursuant to SECTION
1.8(C) and Dissenting Shares as provided in SECTION 2.10) shall be converted
into the right to receive an amount in cash equal to $56.50, without interest
(the "MERGER CONSIDERATION").
(b) All shares of Company Common Stock shall cease to be outstanding and
shall be automatically canceled and retired and shall cease to exist, and each
holder of a certificate that, immediately prior to the Effective Time,
represented any shares of Company Common Stock shall thereafter cease to have
any rights with respect to such shares of Company Common Stock, except as
otherwise expressly provided in this Agreement or by applicable Law.
(c) Each share of Company Common Stock that is owned directly or indirectly
by Company at the Effective Time shall be automatically canceled and retired and
shall cease to exist, and no consideration shall be delivered in exchange
therefor.
(d) Each share of common stock, par value $0.01 per share, of Merger Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into one validly issued,
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fully paid and nonassessable share of common stock, par value $.01 per share, of
the Surviving Corporation.
Section 1.9. COMPANY STOCK OPTIONS AND OTHER EQUITY-BASED AWARDS.
(a) All awards granting restricted shares of Company Common Stock from
Company that have not vested (collectively, "COMPANY RESTRICTED SHARES")
heretofore granted under any Company Stock Plan shall, immediately prior to the
Effective Time, become fully vested and without further restrictions with
respect to ownership rights thereto, thereby causing all Company Restricted
Shares to become shares of Company Common Stock that are converted into the
right to receive the Merger Consideration as provided in SECTION 1.8(a).
(b) Each right of any kind, contingent or accrued, to receive shares of
Company Common Stock or benefits measured by the value of a number of shares of
Company Common Stock (including restricted stock units, deferred stock units and
dividend equivalents), other than Company Restricted Stock, Company Stock
Options or rights to acquire SPP Shares (collectively, "COMPANY STOCK-BASED
AWARDS"), heretofore granted under any Company Stock Plan shall, immediately
prior to the Effective Time, become fully vested and without further
restrictions with respect to ownership rights thereto, and each Company
Stock-Based Award shall be converted into the right to receive an amount equal
to (i) the Merger Consideration, multiplied by (ii) the number of shares of
Company Common Stock to which such Company Stock-Based Award relates.
(c) All outstanding options to acquire shares of Company Common Stock from
Company other than SPP Shares (collectively, "COMPANY STOCK OPTIONS") heretofore
granted under any Company Stock Plan, whether or not then exercisable or vested,
shall cease to represent, as of the Effective Time, a right to acquire shares of
Company Common Stock and shall be converted, in settlement and cancellation
thereof, into the right to receive, at the Effective Time, a lump sum cash
payment by the Surviving Corporation of an amount equal to (i) the excess, if
any, of (A) the per share Merger Consideration over (B) the exercise price per
share of Company Common Stock subject to such Company Stock Option, multiplied
by (ii) the number of shares of Company Common Stock for which such Company
Stock Option shall not theretofore have been exercised.
(d) The Company Stock Plans, including the portion of the Employee Benefit
Plans described in SECTION 1.9(b) that provide for the grant of Company
Stock-Based Awards, shall terminate, and all rights under any provision of any
other plan, program or arrangement providing for the issuance or grant of any
other interest with respect to the capital stock or other equity interests of
Company or any of its Subsidiaries, or for the issuance or grant of any right of
any kind, contingent or accrued, to receive benefits measured by the value of a
number of shares of Company Common Stock (including restricted stock units,
deferred stock units and dividend equivalents), shall be canceled, effective as
of the Effective Time, without any liability on the part of Company or any of
its Subsidiaries (except as otherwise expressly provided in this Agreement).
(e) No Person shall have any right under the Company Stock Plans, including
the Employee Benefit Plans described in SECTION 1.9(b), or under any other plan,
program,
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agreement or arrangement with respect to equity interests of Company or any of
its Subsidiaries, or for the issuance or grant of any right of any kind,
contingent or accrued, to receive benefits measured by the value of a number of
shares of Company Common Stock (including restricted stock units, deferred stock
units and dividend equivalents, at and after the Effective Time (except as
otherwise expressly set forth in this SECTION 1.9 or ARTICLE 2).
(f) Subject to any deferral election with respect to Company Stock-Based
Awards then in effect, reasonably promptly, and in no event later than 48 hours,
after the Effective Time, the Surviving Corporation shall pay to each holder of
Company Stock Options and Company Stock-Based Awards that consents to the
treatment that this SECTION 1.9 contemplates in respect of all of such holder's
Company Stock Options and Company Stock-Based Awards the cash payments specified
in this SECTION 1.9. No interest shall be paid or accrue on the cash payments
contemplated by this SECTION 1.9, PROVIDED that the cash proceeds payable with
respect to any Company-Stock Based Awards subject to deferral elections shall be
deemed invested for the applicable deferral period in hypothetical investments
selected by the holders of such Company Stock-Based Awards, which shall be those
offered to similarly situated employees of Parent under Parent's Executive
Deferred Compensation Plan. To the extent the Surviving Corporation or Parent is
required or entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of Company Stock Options or
Company Stock-Based Awards with respect to the making of such payment under the
Internal Revenue Code of 1986, as amended (collectively, the "CODE"), or any
provision of any other Tax Law, the amounts so withheld and paid over to the
appropriate taxing authority by the Surviving Corporation or Parent, as the case
may be, shall be treated for all purposes of this Agreement as having been paid
to the holder of the Company Stock Options or Company Stock-Based Awards in
respect of which such deduction and withholding was made by the Surviving
Corporation or Parent, as the case may be.
(g) At the Effective Time, the Company's 1992 Employee Stock Purchase Plan
(the "STOCK PURCHASE PLAN") shall terminate. In connection with such
termination, the Exercise Date (as defined in the Stock Purchase Plan) shall be
deemed to be the date that is one day prior to the Effective Time, as a result
of which each participant therein shall be entitled to receive prior to the
Effective Time a number of whole and fractional shares of Company Common Stock
calculated pursuant to Section 7 of the Stock Purchase Plan (the "SPP SHARES")
and Company shall retain accumulated payroll deductions, thereby causing all
such SPP Shares to become shares of Company Common Stock that are converted into
the right to receive the Merger Consideration as provided in SECTION 1.8(a).
Section 1.10. CERTAIN ADJUSTMENTS. If, between the date of this Agreement and
the Effective Time, (a) the outstanding shares of Company Common Stock shall
have been increased, decreased, changed into or exchanged for a different number
of shares or different class, in each case, by reason of any reclassification,
recapitalization, stock split, split-up, combination or exchange of shares, (b)
a stock dividend or dividend payable in any other securities of Company shall be
declared with a record date within such period, (c) any other securities of
Company shall be declared with a record date within such period or (d) any
similar event shall have occurred, then the Merger Consideration shall be
appropriately adjusted to provide the holders of shares of Company Common Stock
(and Company Stock Options or Company Stock-Based Awards) the same economic
effect as contemplated by this Agreement prior to such event.
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ARTICLE 2
CONVERSION OF SHARES
Section 2.1. PAYING AGENT. As of the Effective Time, Parent shall designate, and
enter into an agreement with, such bank or trust company reasonably acceptable
to Company to act as paying agent in the Merger (the "PAYING AGENT"), which
agreement shall provide that Parent shall deposit with the Paying Agent as of
the Effective Time, for the benefit of the holders of shares of Company Common
Stock, cash sufficient to effect the payment of the Merger Consideration to
which such holders are entitled pursuant to SECTION 1.8(a) and this ARTICLE 2.
Section 2.2. PAYMENT PROCEDURES. Promptly, but in no event later than 48 hours,
after the Effective Time, Parent shall cause the Paying Agent to mail to each
holder of record of a certificate or certificates that immediately prior to the
Effective Time represented shares of Company Common Stock that were converted
into the right to receive Merger Consideration pursuant to SECTION 1.8(a) (the
"CERTIFICATES") (a) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Paying Agent and shall be in such
a form and have such other provisions as Parent may reasonably specify) and (b)
instructions for use in effecting the surrender of the Certificates in exchange
for the Merger Consideration. Upon surrender of a Certificate for cancellation
to the Paying Agent or to such other agent or agents as Parent may appoint,
together with such letter of transmittal, duly executed and completed, and such
other documents as the Paying Agent may reasonably require, the holder of such
Certificate shall be entitled to receive the Merger Consideration in exchange
for each share of Company Common Stock formerly represented by such Certificate,
and the Certificate so surrendered shall forthwith be canceled. No interest
shall be paid or accrue on the Merger Consideration. If any portion of the
Merger Consideration is to be made to a Person other than the Person in whose
name the applicable surrendered Certificate is registered, then it shall be a
condition to the payment of such Merger Consideration that (i) the Certificate
so surrendered shall be properly endorsed or shall be otherwise in proper form
for transfer and (ii) the Person requesting such payment shall have (A) paid any
transfer and other Taxes required by reason of such payment in a name other than
that of the registered holder of the Certificate surrendered or (B) established
to the satisfaction of Parent that any such Taxes either have been paid or are
not payable.
Section 2.3. UNDISTRIBUTED MERGER CONSIDERATION. Any portion of the funds made
available to the Paying Agent pursuant to SECTION 2.1 that remains undistributed
to holders of Certificates on the date that is six months after the Effective
Time shall be delivered to Parent or its designee, and any holders of
Certificates who have not theretofore complied with this ARTICLE 2 shall
thereafter look only to Parent for the Merger Consideration to which such
holders are entitled pursuant to SECTION 1.8(a) and this ARTICLE 2. Any portion
of the funds made available to the Paying Agent pursuant to SECTION 2.1 that
remains unclaimed by holders of Certificates on the date immediately prior to
such time as such amounts would otherwise escheat to or become property of any
Governmental Entity shall, to the extent permitted by Law, become the property
of the Surviving Corporation, free and clear of all claims or interests of any
Person previously entitled thereto.
Section 2.4. NO LIABILITY. None of Parent, Merger Sub, Company, the Surviving
Corporation, the Paying Agent or their respective representatives shall be
liable to any Person in respect of
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any Merger Consideration delivered to a public official pursuant to any
applicable abandoned property, escheat or similar Law.
Section 2.5. INVESTMENT OF MERGER CONSIDERATION. The Paying Agent shall invest
the funds made available to the Paying Agent pursuant to SECTION 2.1 as directed
by Parent on a daily basis; PROVIDED that no such gain or loss thereon shall
affect the amounts payable to holders of Certificates pursuant to SECTION 1.8(a)
and this ARTICLE 2. Any interest and other income resulting from such
investments shall be the property of, and shall promptly be paid to, Parent.
Section 2.6. LOST CERTIFICATES. If any Certificate shall have been lost, stolen
or destroyed, then, upon the making of an affidavit of that fact by the Person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such Person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim that may be made against it with respect to such Certificate, the
Paying Agent shall deliver in exchange for such lost, stolen or destroyed
Certificate the applicable Merger Consideration with respect to the shares of
Company Common Stock formerly represented thereby.
Section 2.7. WITHHOLDING RIGHTS. To the extent the Surviving Corporation or
Parent is required or entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of shares of Company
Common Stock with respect to the making of such payment under the Code or any
provision of any other Tax Law, the amounts so withheld and paid over to the
appropriate taxing authority by the Surviving Corporation or Parent, as the case
may be, shall be treated for all purposes of this Agreement as having been paid
to the holder of the shares of Company Common Stock in respect of which such
deduction and withholding was made by the Surviving Corporation or Parent, as
the case may be.
Section 2.8. FURTHER ASSURANCES. At and after the Effective Time, the officers
and directors of the Surviving Corporation will be authorized to execute and
deliver, in the name and on behalf of Company or Merger Sub, all deeds, bills of
sale, assignments and assurances and to take and do, in the name and on behalf
of Company or Merger Sub, all other actions and things to vest, perfect or
confirm of record or otherwise in the Surviving Corporation all right, title and
interest in, to and under all of the rights, properties or assets acquired or to
be acquired by the Surviving Corporation as a result of, or in connection with,
the Merger.
Section 2.9. STOCK TRANSFER BOOKS. The stock transfer books of Company shall be
closed immediately upon the Effective Time, and there shall be no further
registration of transfers of shares of Company Common Stock thereafter on the
records of Company. At or after the Effective Time, any Certificates presented
to the Paying Agent, Parent or the Surviving Corporation for any reason shall,
subject to compliance with the provisions of this ARTICLE 2 by the holder
thereof, be converted into the right to receive the Merger Consideration with
respect to the shares of Company Common Stock formerly represented thereby.
Section 2.10. DISSENTING SHARES. Notwithstanding anything to the contrary in
this Agreement, but only to the extent required by the DGCL, shares of Company
Common Stock issued and outstanding immediately prior to the Effective Time and
held by a holder who has not voted in favor of or consented (in writing) to the
Merger and who has demanded appraisal for such shares
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of Company Common Stock in accordance with the DGCL (collectively, the
"DISSENTING SHARES") shall not be converted into the right to receive the Merger
Consideration, but shall be converted into the right to receive such cash
consideration as determined to be due to such holder as provided in the DGCL.
If, however, such holder withdraws his, her or its demand for appraisal or fails
to perfect or otherwise loses his, her or its right of appraisal, in any case,
pursuant to the DGCL, then such holder's shares of Company Common Stock shall be
treated as having been converted as of the Effective Time into the right to
receive the Merger Consideration pursuant to SECTION 1.8(a), without any
interest thereon, upon surrender of the certificate or certificates representing
such shares. Company shall provide Parent with (a) prompt written notice of all
demands for appraisal of shares of Company Common Stock that are received by
Company and (b) the opportunity to participate in and direct all negotiations
and proceedings with respect to all such demands. Company shall not, without the
prior written consent of Parent, make any payment with respect to, settle or
offer to settle, or otherwise negotiate any such demands. Any portion of the
funds made available to the Paying Agent pursuant to SECTION 2.1 that is not
distributed to holders of shares of Company Common Stock pursuant to the other
provisions of this ARTICLE 2 because such holders properly exercised and
perfected their dissenters' rights with respect to thereto in accordance with
the DGCL may be paid to the holders of such Dissenting Shares upon written
instructions from Parent to the Paying Agent.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPANY
Except as set forth in the disclosure schedule delivered by Company to
Parent prior to the execution and delivery of this Agreement (which schedule
sets forth, among other things, items the disclosure of which is necessary or
appropriate either in response to an express disclosure requirement contained
in, or as an exception to, one or more representations or warranties contained
in this ARTICLE 3, PROVIDED, HOWEVER, that notwithstanding anything in this
Agreement to the contrary, the mere inclusion of an item in such schedule as an
exception to a representation or warranty shall not be deemed an admission that
such item represents a material exception or material fact, event or
circumstance or that such item has had or would reasonably be expected to have a
Material Adverse Effect on Company) (the "COMPANY DISCLOSURE SCHEDULE"), Company
represents and warrants to Parent and Merger Sub as follows:
Section 3.1. ORGANIZATION AND QUALIFICATION. Each of Company and its material
Subsidiaries is a corporation or other entity duly organized, validly existing
and in good standing under the Laws of the jurisdiction of its incorporation or
organization and has full corporate or other power and authority to own, operate
and lease the properties owned or used by it and to carry on its business as and
where such is now being conducted, except where the failure to be so standing,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Company. Each of Company and its Subsidiaries is duly
licensed or qualified to do business as a foreign corporation, and is in good
standing, in each jurisdiction wherein the character of the properties owned or
leased by it, or the nature of its business, makes such licensing or
qualification necessary, except where the failure to so qualify, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Company. The copies of the Amended and Restated Certificate of
Incorporation and By-Laws of Company,
7
including any amendments thereto, that have been delivered by Company to Parent
are correct and complete copies of such instruments as presently in effect.
Section 3.2. CAPITALIZATION.
(a) As of August 24, 2005 (the "CAPITALIZATION DATE"), the authorized
capital stock of Company consists entirely of (a) 200,000,000 shares of Company
Common Stock, of which 42,218,839 shares of Company Common Stock are issued and
outstanding and 4,528,507 shares of Company Common Stock are held in the
treasury of Company, and (b) 10,000,000 shares of Preferred Stock, $.005 par
value per share, of Company, none of which are issued and outstanding or held in
the treasury of Company. All issued and outstanding shares of capital stock of
Company and its Subsidiaries are validly issued, fully paid and nonassessable.
As of the Capitalization Date, there are (i) Company Stock Options representing
in the aggregate the right to acquire 4,004,543 shares of Company Common Stock
and (ii) Company Restricted Shares relating to in the aggregate 587,035 shares
of Company Common Stock under Company's Amended and Restated 2002 Omnibus Plan,
Amended and Restated 1992 Omnibus Stock Plan and Management Stock Purchase Plan
(collectively, the "COMPANY STOCK PLANS"). As of the Capitalization Date, there
are Company Stock-Based Awards relating to in the aggregate 249,475 shares of
Company Common Stock under the Company Stock Plans. SCHEDULE 3.2 to the Company
Disclosure Schedule sets forth a correct and complete list, as of the
Capitalization Date, of the number of shares of Company Common Stock subject to
Company Stock Options, the number of unvested Company Restricted Shares or other
rights to purchase or receive Company Common Stock, or benefits based on the
value of Company Common Stock, granted under the Company Stock Plans, the
Employee Benefit Plans or otherwise, and the holders who are executive officers
of Company (including break-downs by individuals for holders who are executive
officers of Company), the dates of grant and the exercise prices thereof and the
Company Stock Plan or Employee Benefit Plan under which such Company Stock
Options, Company Restricted Shares or Company Stock-Based Awards were granted.
No bonds, debentures, notes or other indebtedness of Company having the right to
vote (or convertible into, or exchangeable for, securities having the right to
vote) on any matters on which holders of capital stock of Company may vote
("COMPANY VOTING DEBT") are issued or outstanding. There are no outstanding
obligations of Company or its Subsidiaries to repurchase, redeem or otherwise
acquire any shares of capital stock or other equity interests of Company or any
of its material Subsidiaries. Except as set forth above, as of the date of this
Agreement, no shares of capital stock or other voting securities of Company have
been issued or reserved for issuance or are outstanding, other than the shares
of Company Common Stock reserved for issuance under the Company Stock Plans.
Except as set forth above, as of the date of this Agreement, there are no
options, warrants, rights, convertible or exchangeable securities, "phantom"
stock rights, stock appreciation rights, stock-based performance units,
commitments, Contracts, arrangements or undertakings of any kind to which
Company or any of its Subsidiaries is a party or by which any of them is bound
(a) obligating Company or any of its Subsidiaries to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock or
other equity interests in, or any security convertible or exercisable for or
exchangeable into any capital stock of or other equity interest in, Company or
any of its material Subsidiaries or any Company Voting Debt, (b) obligating
Company or any of its material Subsidiaries to issue, grant, extend or enter
into any such option, warrant, call, right, security, unit, commitment,
Contract, arrangement or undertaking or (c) giving any Person the right to
receive any economic benefit or right similar to
8
or derived from the economic benefits and rights occurring to holders of capital
stock of Company or any of its material Subsidiaries.
(b) Company owns, directly or indirectly, all of the issued and outstanding
shares of capital stock and other equity interests of its material Subsidiaries,
free and clear of all liens, pledges, charges, encumbrances and other security
interests of any nature whatsoever (collectively, "LIENS"). A correct and
complete list of all of Company's Subsidiaries, together with the jurisdiction
of incorporation or organization of each Subsidiary and the percentage of each
Subsidiary's outstanding capital stock or other equity interests owned by
Company or another of its Subsidiaries, is set forth in SCHEDULE 3.2(b) to the
Company Disclosure Schedule. A correct and complete list of all material
corporations, partnerships, limited liability companies, associations and other
entities (excluding Company's Subsidiaries) in which Company or any Subsidiary
of Company owns any joint venture, partnership, material strategic alliance or
similar interest, together with the jurisdiction of incorporation or
organization of each such entity and the percentage of each such entity's
outstanding capital stock or other equity interests owned by Company or any of
its Subsidiaries, is set forth in SCHEDULE 3.2(b) to the Company Disclosure
Schedule. Except for its interest in the Subsidiaries, joint venture or similar
entities as set forth in SCHEDULE 3.2(b) to the Company Disclosure Schedule,
Company does not own, directly or indirectly, any material capital stock
interest, equity membership interest, partnership interest, joint venture
interest or other equity interest in any Person. Except as disclosed in the
Company SEC Reports filed prior to the date of this Agreement, neither Company
nor any of its Subsidiaries is obligated to make any contribution to the capital
of, make any loan to or guarantee the debts of any joint venture or similar
entity (excluding Company's Subsidiaries) set forth in SCHEDULE 3.2(B) to the
Company Disclosure Schedule. Parent has received a correct and complete copy of
the Stock Purchase Plan and all "rules" or "regulations" (as those terms are
used in the Stock Purchase Plan) issued relating to the administration of the
Stock Purchase Plan.
Section 3.3. AUTHORIZATION. Company has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, subject, in the case of the consummation of the Merger, to
the adoption of this Agreement by the affirmative vote of the holders of a
majority of the outstanding shares of Company Common Stock (the "COMPANY
REQUISITE STOCKHOLDER VOTE"). The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Company, and no
other corporate proceedings on the part of Company or its stockholders are
necessary to authorize this Agreement and to consummate the transactions
contemplated hereby, other than the approval of this Agreement and the Merger by
the Company Requisite Stockholder Vote. This Agreement has been duly executed
and delivered by Company and constitutes a valid and legally binding obligation
of Company enforceable in accordance with its terms and conditions.
Section 3.4. NO VIOLATION.
(a) The execution and delivery of this Agreement by Company do not, and the
consummation of the Merger and the other transactions contemplated hereby by
Company will not, conflict with, or result in any violation of, or constitute a
default (with or without notice or lapse of time, or both) under, or give rise
to a right of, or result by its terms in the, termination, amendment,
cancellation or acceleration of any obligation or the loss of a material benefit
under,
9
or to increased, additional, accelerated or guaranteed rights or entitlements of
any Person under, or create any obligation to make a payment to any other Person
under, or result in the creation of a Lien on, or the loss of, any assets,
including Company Intellectual Property, of Company or any of its Subsidiaries
pursuant to, (i) any provision of the certificate of incorporation, by-laws or
similar organizational document of Company or any of its Subsidiaries or (ii)
subject to obtaining or making the consents, approvals, Orders, authorizations,
registrations, declarations and filings referred to in SECTION 3.4(b), any
written or oral agreement, contract, loan or credit agreement, note, mortgage,
bond, indenture, lease, benefit plan, permit, franchise, license or other
instrument or arrangement (each, a "CONTRACT") to which Company or any of its
Subsidiaries is a party or by which any of their respective properties or assets
is bound, excluding the Contracts described in CLAUSE (III) below, or any
judgment, injunction, ruling, order or decree (each, an "ORDER") or any
constitution, treaty, statute, law, principle of common law, ordinance, rule or
regulation of any Governmental Entity (each, a "LAW") applicable to Company or
any of its Subsidiaries or their respective properties or assets, except, in the
case of this CLAUSE (II), as (A) individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Company or (B) would
not prevent or materially delay the consummation of the transactions
contemplated hereby, or (iii) subject to obtaining or making the consents,
approvals, Orders, authorizations, registrations, declarations and filings
referred to in SECTION 3.4(b), any Contract to which Company or any of its
Subsidiaries is a party or by which any of their respective properties or assets
is bound that provides for or otherwise relates to any of the joint venture,
partnership, strategic alliance or similar arrangements described on SCHEDULE
3.2 to the Company Disclosure Schedule.
(b) No consent, approval, Order or authorization of, or registration,
declaration or filing with, any supranational, national, state, provincial,
municipal, local or foreign government, any instrumentality, subdivision, court,
administrative agency or commission or other authority thereof, or any
quasi-governmental or private body exercising any regulatory, judicial,
administrative, taxing, importing or other governmental or quasi-governmental
authority (each, a "GOVERNMENTAL ENTITY") or any other Person is required by or
with respect to Company or any of its Subsidiaries in connection with the
execution and delivery of this Agreement by Company or the consummation of the
Merger and the other transactions contemplated hereby, except for those required
under or in relation to (i) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR ACT"), Council Regulation No. 139/2004 of the
European Community (the "EC MERGER REGULATION") and other Regulatory Laws, (ii)
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), (iii) the
DGCL with respect to the filing of the Certificate of Merger and (iv) such
consents, approvals, Orders, authorizations, registrations, declarations and
filings the failure of which to make or obtain, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
Company. Consents, approvals, Orders, authorizations, registrations,
declarations and filings required under or in relation to any of CLAUSES (I)
through (III) above are referred to as the "NECESSARY CONSENTS."
Section 3.5. FILINGS WITH THE SEC; FINANCIAL STATEMENTS; XXXXXXXX-XXXXX ACT.
(a) Company has filed all required registration statements, prospectuses,
reports, schedules, forms, statements and other documents required to be filed
by it with the Securities and Exchange Commission (the "SEC") since December 31,
2002 (collectively, including all exhibits thereto, the "COMPANY SEC REPORTS").
No Subsidiary of Company is required to file
10
any registration statement, prospectus, report, schedule, form, statement or
other document with the SEC. None of the Company SEC Reports, as of their
respective dates (and, if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing), contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. All of the Company SEC
Reports, as of their respective dates (and as of the date of any amendment to
the respective Company SEC Report), complied as to form in all material respects
with the applicable requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the Exchange Act.
(b) Each of the financial statements (including the related notes and
schedules thereto) of Company included in the Company SEC Reports, as of their
respective dates (and as of the date of any amendment to the respective Company
SEC Report), complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with generally accepted
accounting principles in the United States ("GAAP") (except, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC) applied on a
consistent basis during the periods and the dates involved (except as may be
indicated in the notes thereto) and fairly present, in all material respects,
the consolidated financial position and consolidated results of operations and
cash flows of Company and its consolidated Subsidiaries as of the respective
dates or for the respective periods set forth therein, subject, in the case of
the unaudited interim financial statements, to the absence of notes and normal
year-end adjustments that have not been and are not expected to be material in
amount.
(c) Except for liabilities reserved or reflected in a balance sheet
included in the Company SEC Reports filed prior to the date of this Agreement,
Company and its Subsidiaries have no liabilities, absolute or contingent, other
than (i) liabilities incurred in the ordinary course of business after June 30,
2005 that, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect on Company or (ii) liabilities that, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Company.
(d) Each of the principal executive officer and the principal financial
officer of Company (or each former principal executive officer and former
principal financial officer of Company, as applicable) has made all
certifications required under Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of
2002 with respect to the Company SEC Reports, and Company has made available to
Parent a summary of any disclosure made by Company's management to Company's
auditors and the audit committee of Company's Board of Directors referred to in
such certifications. (For purposes of the preceding sentence, "principal
executive officer" and "principal financial officer" shall have the meanings
ascribed to such terms in the Xxxxxxxx-Xxxxx Act of 2002.)
(e) Company maintains a system of internal control over financial reporting
(as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to
provide reasonable assurance (i) that Company maintains records that in
reasonable detail accurately and fairly reflect their respective transactions
and dispositions of assets, (ii) that transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP, (iii) that
receipts and expenditures are executed only in accordance with authorizations of
management
11
and the Board of Directors of Company and (iv) regarding prevention or timely
detection of the unauthorized acquisition, use or disposition of Company's
assets that could have a material effect on Company's financial statements.
Company has evaluated the effectiveness of Company's internal control over
financial reporting and, to the extent required by applicable Law, presented in
any applicable Company SEC Report that is a report on Form 10-K or Form 10-Q or
any amendment thereto its conclusions about the effectiveness of the internal
control over financial reporting as of the end of the period covered by such
report or amendment based on such evaluation. To the extent required by
applicable Law, Company has disclosed, in any applicable Company SEC Report that
is a report on Form 10-K or Form 10-Q or any amendment thereto, any change in
Company's internal control over financial reporting that occurred during the
period covered by such report or amendment that has materially affected, or is
reasonably likely to materially affect, Company's internal control over
financial reporting. Company has disclosed, based on the most recent evaluation
of internal control over financial reporting, to Company's auditors and the
audit committee of Company's Board of Directors (A) all significant deficiencies
and material weaknesses in the design or operation of internal control over
financial reporting that are reasonably likely to adversely affect Company's
ability to record, process, summarize and report financial information and (B)
any fraud, whether or not material, that involves management or other employees
who have a significant role in Company's internal control over financial
reporting.
(f) Company has designed disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) under the Exchange Act) to ensure that material
information relating to Company, including its consolidated Subsidiaries, is
made known to its principal executive officer and principal financial officer.
Company has evaluated the effectiveness of Company's disclosure controls and
procedures and, to the extent required by applicable Law, presented in any
applicable Company SEC Report that is a report on Form 10-K or Form 10-Q or any
amendment thereto its conclusions about the effectiveness of the disclosure
controls and procedures as of the end of the period covered by such report or
amendment based on such evaluation.
(g) As of the date of this Agreement, to the knowledge of Company, no
accounting rule, opinion, standard, consensus or pronouncement applicable to
Company or any of its Subsidiaries has been finally adopted and not subsequently
withdrawn by the SEC, the Financial Accounting Standards Board, the Emerging
Issues Task Force, the Public Company Accounting Oversight Board or any similar
body that Company or any of its material Subsidiaries is required to implement
(whether currently or after a prescribed transition period) but has not yet
implemented as of the date of this Agreement and that, if so implemented, would
reasonably be expected to have a Material Adverse Effect on Company.
Section 3.6. PROXY STATEMENT. None of the information contained or incorporated
by reference in the Proxy Statement will, on the date on which it is first
mailed to Company's stockholders or at the time of the Company Stockholders
Meeting, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; PROVIDED that the Company makes no representation regarding
information provided by Parent or its Subsidiaries for inclusion in the Proxy
Statement. The Proxy Statement will comply as to form in all material respects
with the requirements of the Exchange Act.
12
Section 3.7. BOARD APPROVAL. The Board of Directors of Company, by resolutions
duly adopted by the unanimous vote of those directors present at a meeting duly
called and held and not subsequently rescinded or modified in any way (the
"COMPANY BOARD APPROVAL"), has duly (a) determined that this Agreement and the
Merger are fair to and in the best interests of Company and its stockholders,
(b) approved this Agreement and the Merger and the other transactions
contemplated hereby and (c) recommended that the stockholders of Company adopt
this Agreement and directed that such matter be submitted to a vote by Company's
stockholders at the Company Stockholders Meeting. To the knowledge of Company,
except for Section 203 of the DGCL (which has been rendered inapplicable), no
similar state takeover statue is applicable to this Agreement or the Merger or
the other transactions contemplated hereby. None of Company, any of its
Subsidiaries or any of the Representatives has disclosed, at any time during the
ninety-day period immediately preceding the date of this Agreement, any
nonpublic information to any Person other than Parent in connection with any
Acquisition Proposal.
Section 3.8. ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Company SEC
Reports filed prior to the date of this Agreement, since December 31, 2004, (a)
Company and its Subsidiaries have conducted their respective businesses only in
the ordinary course, (b) there has not been any action taken by Company or any
of its Subsidiaries that would have required the consent of Parent under CLAUSES
(B) (in respect of Company only), (d) (in respect of Company only), (g), (h)(i),
(i), (j), (k) or (o) of SECTION 5.1 if such action was taken after the date of
this Agreement, (c) there has not been any change, event, development,
condition, occurrence or combination of changes, events, developments,
conditions or occurrences that, individually or in the aggregate, has had or
would reasonably be expected to have a Material Adverse Effect on Company and
(d) neither Company nor any of its Subsidiaries has increased the compensation
or benefits of any director or officer, or taken any similar action, except, in
the case of this CLAUSE (d), (i) to the extent required under the terms of any
agreements, trusts, plans, funds or other arrangements disclosed in the Company
SEC Reports filed prior to the date of this Agreement, (ii) to the extent
required by applicable Law or (iii) for increases (other than in equity-based
compensation) in the ordinary course of business consistent with past practice.
Without limitation, except as disclosed in the Company SEC Reports filed prior
to the date of this Agreement, since December 31, 2003, neither Company nor any
of its Subsidiaries has adopted or entered into any arrangement that is a
material Foreign Benefit Plan.
Section 3.9. LITIGATION; ORDERS. Except as disclosed in the Company SEC Reports
filed prior to the date of this Agreement, there is no claim, action, suit,
arbitration, proceeding, investigation or inquiry, whether civil, criminal or
administrative, pending or, to the knowledge of Company, threatened against
Company or any of its Subsidiaries or any of their respective officers or
directors (in such capacity) or any of their respective businesses or assets, at
law or in equity, before or by any Governmental Entity or arbitrator, except as,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Company or to prevent or materially delay the
consummation of the transactions contemplated hereby. Except as disclosed in the
Company SEC Reports filed prior to the date of this Agreement, none of Company,
any of its Subsidiaries or any of their respective businesses or assets is
subject to any Order of any Governmental Entity that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect on
Company or to prevent or materially delay the consummation of the transactions
contemplated hereby.
13
Section 3.10. PERMITS; COMPLIANCE WITH LAWS. Except as disclosed in the Company
SEC Reports filed prior to the date of this Agreement and except as,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Company, Company and its Subsidiaries hold all
permits, licenses, franchises, variances, exemptions, Orders and approvals of
all Governmental Entities that are necessary for the operation of their
respective businesses as now being conducted (collectively, the "COMPANY
PERMITS"), and no suspension or cancellation of any of the Company Permits is
pending or, to the knowledge of Company, threatened. Company and its
Subsidiaries are in compliance with the terms of Company Permits, except for
instances of noncompliance where neither the costs to comply nor the failure to
comply, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Company. Company and its Subsidiaries are in
compliance with, and Company and its Subsidiaries have not received any notices
of noncompliance with respect to, any Laws, except for instances of
noncompliance where neither the costs to comply nor the failure to comply,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Company. Without limitation, during the five years
prior to the date of this Agreement, none of Company, any of its Subsidiaries or
any director, officer, employee, agent or other Person associated with or acting
on behalf of Company or any of its Subsidiaries has, directly or indirectly, (a)
used any funds of Company or any of its Subsidiaries for unlawful contributions,
unlawful gifts, unlawful entertainment or other unlawful expenses relating to
political activity; (b) made any unlawful payment to foreign or domestic
governmental officials or employees or to foreign or domestic political parties
or campaigns from funds of Company or any of its Subsidiaries; (c) violated any
provision that would result in a violation of the Foreign Corrupt Practices Act
of 1977, as amended, or any similar Law; (d) established or maintained any
unlawful fund of monies or other assets of Company or any of its Subsidiaries;
(e) made any fraudulent entry on the books or records of Company or any of its
Subsidiaries; or (f) made any unlawful bribe, unlawful rebate, unlawful payoff,
unlawful influence payment, unlawful kickback or other unlawful payment to any
Person, private or public, regardless of form, whether in money, property or
services, to obtain favorable treatment in securing business, to obtain special
concessions for Company or any of its Subsidiaries, to pay for favorable
treatment for business secured or to pay for special concessions already
obtained for Company or any of its Subsidiaries, except, in each case, where
such acts, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect on Company.
Section 3.11. TAX MATTERS.
(a) All Taxes of Company and its Subsidiaries attributable to periods
preceding or ending with the date of the consolidated balance sheet of Company
and its Subsidiaries for the fiscal quarter ended June 30, 2005 included in the
Company SEC Reports (the "RECENT BALANCE SHEET") have been paid or have been
included in a liability accrual for Taxes on the Recent Balance Sheet. Since the
date of the Recent Balance Sheet, neither Company nor any of its Subsidiaries
has incurred any Taxes other than Taxes incurred in the ordinary course of
business consistent in type and amount (relative to the results of operations of
Company or such Subsidiary and taking into account changes in Tax rates and
other changes in applicable Tax law) with past practices of Company or such
Subsidiary.
(b) Each of Company and its Subsidiaries has timely filed all Tax Returns
required to be filed (taking into account any extension of time within which to
file), and all such Tax
14
Returns were and are correct and complete, except for failures to so file or
failures to be so correct and complete that, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Company.
(c) Each of Company and its Subsidiaries has duly withheld, collected and
timely paid all Taxes that it was required to withhold, collect and pay relating
to amounts paid or owing to any employee, independent contractor, creditor,
stockholder or other Person, except for failures to withhold, collect or pay
that, individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on Company.
(d) No claim has been made by any taxing authority in a jurisdiction where
Company or any of its Subsidiaries does not file Tax Returns that Company or any
of its Subsidiaries is or may be subject to Tax or required to file a Tax Return
in such jurisdiction, except for those instances where neither the imposition of
any such Tax nor the filing of any such Tax Return (and the obligation to pay
the Taxes reflected thereon), individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Company. There are
no outstanding waivers or comparable consents that have been given by Company or
any of its Subsidiaries regarding the application of the statute of limitations
with respect to any Taxes or Tax Returns. There are no Liens on any of the
assets of the Company and its Subsidiaries that arose in connection with any
failure to pay Taxes, other than statutory Liens for Taxes that are not yet due
and payable.
(e) Neither Company nor any of its Subsidiaries has requested or received a
Tax ruling, private letter ruling, technical advice memorandum, competent
authority relief or similar agreement or entered into a closing agreement or
contract with any taxing authority that, in each case, remains outstanding or
effective. Neither Company nor any of its Subsidiaries is subject to a Tax
sharing, allocation, indemnification or similar agreement (except such
agreements as are solely between or among Company and its Subsidiaries) pursuant
to which it could have an obligation to make a payment to any Person in respect
of Taxes.
(f) Company has not during the last five years been a member of an
Affiliated group of corporations that filed a consolidated tax return except for
groups for which it was the parent corporation. Each of Company's Subsidiaries
has never been a member of an Affiliated group of corporations that filed a
consolidated tax return except for groups of which Company was the parent
corporation.
(g) Neither Company nor any of its Subsidiaries is participating or has
participated in a reportable or listed transaction within the meaning of Treas.
Regs. ss.1.6011-4 or Section 6707A(c) of the Code. Company and each of its
Subsidiaries have disclosed on their federal income Tax Returns all positions
taken therein that could reasonably be expected to give rise to a substantial
understatement of federal income Tax within the meaning of Section 6662 of the
Code. Neither Company nor any of its Subsidiaries has received a Tax opinion
(other than an unqualified "will" level opinion) with respect to any transaction
relating to Company or any of its Subsidiaries other than a transaction in the
ordinary course of business. Neither Company nor any of its Subsidiaries is the
direct or indirect beneficiary of a guarantee of Tax benefits or any other
arrangement that has the same economic effect with respect to any transaction or
Tax opinion relating to Company or any of its Subsidiaries. Neither Company nor
any of its
15
Subsidiaries is a party to an understanding or arrangement described in Section
6111(d) or Section 6662(d)(2)(C)(iii) of the Code. Neither Company nor any of
its Subsidiaries has participated in a defeasance of rent, interest or principal
with respect to a lease arrangement to which it is a party.
(h) Neither Company nor any of its Subsidiaries has been the "distributing
corporation" or a "controlled corporation" (within the meaning of Section 355 of
the Code) with respect to a transaction described in Section 355 of the Code
within the two-year period ending on the date of this Agreement.
Section 3.12. ENVIRONMENTAL MATTERS.
(a) Company and each of its Subsidiaries are in compliance with all
applicable Laws and Orders relating to pollution, protection of the environment
or human health, occupational safety and health or sanitation, including the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, and all other applicable Laws and Orders relating to emissions, spills,
discharges, generation, storage, leaks, injection, leaching, seepage, releases
or threatened releases of Hazardous Substances into the environment (including
ambient air, surface water, ground water, land surface or subsurface strata) or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Substances, together with
any plan, notice or demand letter issued, entered, promulgated or approved
thereunder (collectively, "ENVIRONMENTAL LAWS"), except for instances of
noncompliance where neither the costs to comply nor the failure to comply,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Company. Neither Company nor any of its Subsidiaries
has received any written notice of (i) any material violation of an
Environmental Law or (ii) the institution of any claim, action, suit,
proceeding, investigation or inquiry by any Governmental Entity or other Person
alleging that Company or any of its Subsidiaries may be in material violation of
or materially liable under any Environmental Law.
(b) Neither Company nor any of its Subsidiaries has (i) placed, held,
located, released, transported or disposed of any Hazardous Substances on,
under, from or at any of the properties currently or previously owned or
operated by Company or any of its Subsidiaries, except in a manner that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Company, (ii) any liability for any Hazardous
Substance disposal or contamination on any of Company's or any of its
Subsidiaries' properties or any other properties that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect on
Company, (iii) reason to know of the presence of any Hazardous Substances on,
under or at any of Company's or any of its Subsidiaries' properties or any other
properties but arising from the conduct of operations on Company's or any of its
Subsidiaries' properties, except in a manner that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
Company, or (iv) received any written notice of (A) any actual or potential
liability for the response to or remediation of Hazardous Substances at or
arising from any of Company's or any of its Subsidiaries' properties or any
other properties or (B) any actual or potential liability for the costs of
response to or remediation of Hazardous Substances at or arising from any of
Company's or any of its Subsidiaries' properties or any
16
other properties, in the case of both SUBCLAUSE (A) and (B), that, individually
or in the aggregate, would reasonably be expected to have a Material Adverse
Effect on Company.
(c) No Environmental Law imposes any obligation on Company or any of its
Subsidiaries arising out of or as a condition to any transaction contemplated
hereby, including any requirement to modify or transfer any Company Permit, any
requirement to file any notice or other submission with any Governmental Entity,
the placement of any notice, acknowledgement, or covenant in any land records,
or the modification of or provision of notice under any agreement or consent
Order.
Section 3.13. INTELLECTUAL PROPERTY.
(a) Company and its Subsidiaries have good title to or, with respect to
items not owned by Company or its Subsidiaries, sufficient rights to use all
Intellectual Property Rights that are owned or licensed by Company or any of its
Subsidiaries or utilized by Company or any of its Subsidiaries in the conduct of
their respective businesses (all of the foregoing items are hereinafter referred
to as the "COMPANY INTELLECTUAL PROPERTY"). To conduct the business of Company
and its Subsidiaries as presently conducted, neither Company nor any of its
Subsidiaries requires any material Intellectual Property Rights that Company and
its Subsidiaries do not already own or license. Company has no knowledge of any
infringement or misappropriation by others of Intellectual Property Rights owned
by Company or any of its Subsidiaries, except where such infringement or
misappropriation, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Company. The conduct of the
businesses of Company and its Subsidiaries does not infringe on or
misappropriate any Intellectual Property Rights of others, except where such
infringement or misappropriation, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Company.
(b) No claims with respect to Company Intellectual Property are pending or,
to the knowledge of Company, threatened by any Person (i) to the effect that the
manufacture, sale or use of any product, process or service as now used or
offered or proposed for use or sale by Company or any of its Subsidiaries
infringes on any Intellectual Property Rights of any Person, (ii) against the
use by Company or any of its Subsidiaries of any Company Intellectual Property
or (iii) challenging the ownership, validity, enforceability or effectiveness of
any Company Intellectual Property, except where such claims, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Company.
Section 3.14. EMPLOYEE BENEFITS.
(a) SCHEDULE 3.14(a) to the Company Disclosure Schedule sets forth a
correct and complete list of all "employee benefit plans," as defined in Section
3(3) of the Employment Retirement Income Security Act of 1974, as amended
("ERISA") and all other material employee benefit or executive compensation
Contracts, arrangements, perquisite programs or payroll practices that are
maintained by Company or any of its Subsidiaries or to which Company or any of
its Subsidiaries is obligated to contribute, for current or former employees or
directors (or dependents or beneficiaries thereof) of Company or any of its
Subsidiaries (collectively, the "EMPLOYEE BENEFIT PLANS"); PROVIDED, HOWEVER,
that SCHEDULE 3.14(a) to the
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Company Disclosure Schedule does not include Employee Benefit Plans that Company
or any of its Subsidiaries is legally required to maintain pursuant to the Law
of any jurisdiction other than the United States; PROVIDED, FURTHER, that the
Foreign Benefit Plans (as defined below) are not listed on SCHEDULE 3.14(a) to
the Company Disclosure Schedule, but Company shall provide Parent with a correct
and complete list of such plans within thirty (30) days following the date
hereof.
(b) SCHEDULE 3.14(b) to the Company Disclosure Schedule sets forth a
correct and complete list of each Employee Benefit Plan or other employee
benefit arrangement that is a "multiemployer plan," as defined in Section
4001(a)(3) of ERISA (a "MULTIEMPLOYER PLAN"), or a plan that has two or more
contributing sponsors at least two of whom are not under common control within
the meaning of Section 4063 of ERISA, and to which the Company, any of its
subsidiaries or any entity within the same "controlled group" as Company or any
of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (each, an
"ERISA AFFILIATE") contributes, has an obligation to contribute or has any
liability. With respect to each plan disclosed on SCHEDULE 3.14(b) to the
Company Disclosure Schedule that is a Multiemployer Plan: (i) if Company, any of
its Subsidiaries or any ERISA Affiliate was to experience a withdrawal or
partial withdrawal from such plan, no withdrawal liability under Title IV of
ERISA would be incurred; and (ii) none of Company, any of its Subsidiaries or
any ERISA Affiliate has received any notification, nor has any reason to
believe, that any Multiemployer Plan is in reorganization, has been terminated,
is insolvent or may reasonably be expected to be in reorganization, to be
insolvent or to be terminated. During the last five years, none of Company, its
current or former Subsidiaries or any current or former ERISA Affiliate has (i)
withdrawn from any Multiemployer Plan in a complete or partial withdrawal under
circumstances in which any withdrawal liability was not satisfied in full or
(ii) engaged in a transaction that is subject to Section 4069 of ERISA. None of
Company, any of its Subsidiaries or any ERISA Affiliate is or has ever been a
party to any multiple employer plan, as that term is defined in Section 413(c)
of the Code or a multiple employer welfare arrangement as that term is defined
in Section 3(40) of ERISA.
(c) SCHEDULE 3.14(c) to the Company Disclosure Schedule sets forth a
correct and complete list of each Employee Benefit Plan or other employee
benefit arrangement that is a "single employer plan," as defined in Section
4001(a)(15) of ERISA, that is subject to Title IV of ERISA and to which the
Company, any of its Subsidiaries or any ERISA Affiliate contributes, sponsors or
maintains. None of Company, any of its Subsidiaries or any ERISA Affiliate has
incurred any outstanding liability under Section 4062, 4063 or 4064 of ERISA to
the Pension Benefit Guaranty Corporation ("PBGC") or to a trustee appointed
under Section 4042 of ERISA. None of the Employee Benefit Plans set forth on
SCHEDULE 3.14(a) or any other plan, fund or program ever maintained or
contributed to by Company, any of its Subsidiaries or any ERISA Affiliate that
is subject to Title IV of ERISA has been terminated so as to subject, directly
or indirectly, any assets of Company or any of its Subsidiaries to any
liability, contingent or otherwise, or the imposition of any Lien under Title IV
of ERISA. No proceeding has been initiated or threatened by any Person
(including the PBGC) to terminate any such plan. No "reportable event" (as
defined in Section 4043 of ERISA) has occurred with respect to any such plan,
and no such reportable event will occur as a result of the transactions
contemplated hereby. No such plan that is subject to Section 302 of ERISA or
Section 412 of the Code has incurred an "accumulated funding deficiency" (as
defined in
18
Section 302 of ERISA and Section 412 of the Code), whether or not such
deficiency has been waived.
(d) Company and each of its Subsidiaries have reserved the right to amend,
terminate or modify at any time all Employee Benefit Plans, except as limited by
the terms of a collective bargaining agreement or contract with an individual or
to the extent applicable Law would prohibit the Company or any Subsidiary from
so reserving such right.
(e) The Internal Revenue Service has issued a currently effective favorable
determination letter with respect to each Employee Benefit Plan that is intended
to be a "qualified plan" within the meaning of Section 401 of the Code, and each
trust maintained pursuant thereto has been determined to be exempt from federal
income taxation under Section 501 of the Code by the IRS. Each such Employee
Benefit Plan has been timely amended since the date of the latest favorable
determination letter in accordance with all applicable Laws. Nothing has
occurred with respect to the operation of any such Employee Benefit Plan that is
reasonably likely to cause the loss of such qualification or exemption or the
imposition of any liability, penalty or tax under ERISA or the Code or the
assertion of claims by "participants" (as that term is defined in Section 3(7)
of ERISA) other than routine benefit claims.
(f) None of Company, its Subsidiaries, the officers or directors of Company
or any of its Subsidiaries or the Employee Benefits Plans that are subject to
ERISA, any trusts created thereunder or any trustee or administrator thereof has
engaged in a "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) or any other breach of fiduciary
responsibility that could subject Company, any of its Subsidiaries or any
officer or director of Company or any of its Subsidiaries to any tax or penalty
on prohibited transactions imposed by such Section 4975 or to any liability
under Section 502 of ERISA.
(g) Except as, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Company, there are no claims
(except claims for benefits payable in the ordinary course of business and
proceedings with respect to qualified domestic relations orders), suits or
proceedings pending or, to the knowledge of Company, threatened against or
involving any Employee Benefit Plan, asserting any rights or claims to benefits
under any Employee Benefit Plan or asserting any claims against any
administrator, fiduciary or sponsor thereof. Except as, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
Company, there are no pending or, to the knowledge of Company, threatened
investigations by any Governmental Entity involving any Employee Benefit Plans.
(h) All Employee Benefit Plans have been established, maintained and
administered in accordance with their terms and with all provisions of
applicable Laws, including ERISA and the Code, except for instances of
noncompliance where neither the costs to comply nor the failure to comply,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Company. All contributions or premiums required to be
made with respect to an Employee Benefit Plan, whether by law or pursuant to the
terms of the plan or any contract that funds the benefits due thereunder, have
been made when due. With respect to any Employee Benefit Plan the liabilities of
which have been disclosed on Company's financial statements as included in the
Company SEC Reports filed prior to the date of this Agreement, no
19
event has occurred since the date of such disclosure that has resulted in a
material increase in such liabilities.
(i) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby (either alone or in
conjunction with any other event) will: (i) increase any benefits otherwise
payable under any Employee Benefit Plan; (ii) result in any acceleration of the
time of payment or vesting of any such benefits; (iii) limit or prohibit the
ability to amend or terminate any Employee Benefit Plan; (iv) require the
funding of any trust or other funding vehicle; or (v) renew or extend the term
of any agreement in respect of compensation for an employee of Company or any of
its Subsidiaries that would create any liability to Company, any of its
Subsidiaries, Parent or the Surviving Corporation or their respective Affiliates
after consummation of the Merger.
(j) Neither Company nor any of its Subsidiaries is a party to a Contract
(including this Agreement) that under any circumstances could obligate it to
make payments (either before or after the Closing Date) that will not be
deductible because of Section 162(m) or Section 280G of the Code. SCHEDULE
3.14(j) to the Company Disclosure Schedule sets forth each Employee Benefit Plan
that provides for a payment upon a change in control and/or any subsequent
employment termination (including any agreement that provides for the cash-out
or acceleration of options or restricted stock and any "gross-up" payments with
respect to any of the foregoing), but excluding severance plans that are
generally applicable to employees of Company and its Subsidiaries. Company makes
the additional representation and warranty set forth on SCHEDULE 3.14(j) to the
Company Disclosure Schedule.
(k) Neither Company nor any of its Subsidiaries has provided written
communications to any group of its current or former employees or any of its
directors of any intention or commitment to establish or implement any
additional material Employee Benefit Plan or other employee benefit arrangement
or to amend or modify, in any material respect, any existing Employee Benefit
Plan.
(l) With respect to each Employee Benefit Plan that is subject to the Law
of any jurisdiction other than the United States (a "FOREIGN BENEFIT PLAN"),
except as, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect on Company, (i) all employer and employee
contributions to each Foreign Benefit Plan required by Law or by the terms of
such Foreign Benefit Plan have been made or, if applicable, accrued in
accordance with normal accounting practices, (ii) the fair market value of the
assets of each funded Foreign Benefit Plan, the liability of each insurer for
any Foreign Benefit Plan funded through insurance or the book reserve
established for any Foreign Benefit Plan, together with any accrued
contributions, is sufficient to procure or provide for the accrued benefit
obligations with respect to all current and former participants in such plan
according to the actuarial assumptions and valuations most recently used to
determine employer contributions to such Foreign Benefit Plan, and no
transaction contemplated by this Agreement will cause such assets or insurance
obligations to be less than such benefit obligations, (iii) all Foreign Benefit
Plans have been maintained in accordance with their terms and all requirements
of applicable Law, (iv) each Foreign Benefit Plan required to be registered has
been registered and has been maintained in good standing with the appropriate
Governmental Entities and (v) to the extent any Foreign Benefit Plan is intended
to qualify for special tax treatment, such Foreign Benefit Plan meets all
20
requirements for such treatment. There is no Foreign Benefit Plan with respect
to which Company is obligated to make disclosure in the Company SEC Reports
where Company has not made the disclosure so required.
Section 3.15. LABOR MATTERS.
(a) Neither Company nor any of its Subsidiaries is party to, or bound by,
any labor agreement, collective bargaining agreement, work rules or practices,
or any other labor-related Contract with any labor union, labor organization or
works council. There are no labor agreements, collective bargaining agreements,
work rules or practices, or any other labor-related Contracts that pertain to
any of the employees of Company of any of its Subsidiaries. No employees of
Company or any of its Subsidiaries are represented by any labor organization
with respect to their employment with Company or any of its Subsidiaries.
(b) No labor union, labor organization, works council or group of employees
of Company or any of its Subsidiaries has made a pending demand for recognition
or certification, and there are no representation or certification proceedings
or petitions seeking a representation proceeding pending or, to the knowledge of
Company, threatened to be brought or filed with the National Labor Relations
Board or any other Governmental Entity. To the knowledge of Company, there are
no organizational attempts relating to labor unions, labor organizations or
works councils occurring with respect to any employees of Company or any of its
Subsidiaries.
(c) Except as, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Company, (i) there are no unfair
labor practice charges or complaints against Company or any of its Subsidiaries
pending or, to the knowledge of Company, threatened before the National Labor
Relations Board or any other Governmental Entity, (ii) there are no labor
strikes, slowdowns, stoppages, walkouts, lockouts or disputes pending or, to the
knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries, (iii) there are no pending or, to the knowledge of Company,
threatened grievances or arbitration proceedings against Company or any of its
Subsidiaries arising out of or under any labor agreement, collective bargaining
agreement, work rules or practices, or any other labor-related Contract with any
labor union, labor organization or works council and (iv) Company and its
Subsidiaries have complied with all hiring and employment obligations under the
Office of Federal Contract Compliance Programs rules and regulations. The
execution and delivery of this Agreement did not, and the consummation of the
transactions contemplated hereby will not, require any consent or approval of,
or any consultation with, any labor union, labor organization, works council or
group of employees of Company or any of its Subsidiaries.
Section 3.16. CERTAIN CONTRACTS.
(a) Neither Company nor any of its Subsidiaries is a party to or bound by
any Contract that (i) has been entered into in the one-year period prior to the
date of this Agreement and involves or would reasonably be expected to involve,
over a period of five years or less, aggregate payments by Company and/or its
Subsidiaries in excess of $25,000,000 or its foreign currency equivalent as of
the date of this Agreement or payments to the Company and/or its Subsidiaries in
excess of $25,000,000 or its foreign currency equivalent as of the date of this
Agreement (excluding purchase orders and other customer contracts received and
accepted by
21
Company and/or its Subsidiaries in the ordinary course of business consistent
with past practice), (ii) is required to be filed with the SEC under Item 601 of
Regulation S-K of the Exchange Act and has not been so filed, (iii) by its terms
materially restricts the conduct of any line of business by Company or any of
its Subsidiaries or, after the Effective Time, would by its terms materially
restrict the conduct of any line of business by Parent or any of its
Subsidiaries, (iv) provide for or otherwise relate to material joint ventures,
partnerships, strategic alliances or similar arrangements or (v) is reasonably
expected to result in a loss exceeding $5,000,000 or its foreign currency
equivalent as of the date of this Agreement. Neither Company nor any of its
Subsidiaries is a party to or bound by any option, forward purchase, hedge or
similar Contract with respect to the bulk purchase of steel or copper. Company
has delivered to Parent a true and complete copy of a summary supporting its
disclosure under the heading "Tables of Contractual Obligations and Other
Commercial Contracts as of December 31, 2004" appearing in the management's
discussion and analysis section of the Form 10-K filed by Company for the fiscal
year ended December 31, 2004.
(b) Each Company Contract is valid and binding on Company and/or its
Subsidiaries, as applicable, and in full force and effect. Each of Company and
its Subsidiaries and, to the knowledge of Company, the other Person or Persons
thereto has in all material respects performed all of its obligations required
to be performed by it under each Company Contract, except for instances of
noncompliance where neither the costs to comply nor the failure to comply,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Company.
Section 3.17. PROPERTIES AND ASSETS. Each of Company and its Subsidiaries owns
good and marketable title to the properties and assets that are material to its
business (other than assets held under valid leases or licenses), free and clear
of all Liens, except those Liens for Taxes not yet due and payable and such
other Liens or minor imperfections of title, if any, that do not materially
detract from the value or interfere with the present use of the affected
property or asset as it is currently being used. Such properties and assets,
together with all properties and assets held by Company and its Subsidiaries
under leases or licenses, include all tangible and intangible property, assets,
Contracts and rights necessary or required for the operation of the business of
Company and its Subsidiaries as presently conducted.
Section 3.18. INSURANCE. All material insurance policies maintained by Company
or any of its Subsidiaries, including policies with respect to fire, casualty,
general liability, business interruption and product liability, are with
reputable insurance carriers, provide full and adequate coverage for all normal
risks incident to the respective businesses, properties and assets of Company
and its Subsidiaries and are in character and amount at least equivalent to that
carried by Persons engaged in similar businesses and subject to the same or
similar perils or hazards, except for failures to maintain such insurance
policies that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Company. Company and each of its
Subsidiaries have made all payments required to maintain such policies in full
force and effect. Neither Company nor any of its Subsidiaries has received
notice of default under any such policy or notice of any pending or threatened
termination or cancellation, coverage limitation or reduction or material
premium increase with respect to any such policy. The aggregate annual premiums
that Company is paying with respect to Company's directors
22
and officers insurance policy for the current policy period that includes the
date of this Agreement is set forth in SCHEDULE 3.18 to the Company Disclosure
Schedule.
Section 3.19. OPINION OF FINANCIAL ADVISOR. Company has received the opinion of
Credit Suisse First Boston LLC, dated the date of this Agreement, to the effect
that, as of such date, the Merger Consideration is fair, from a financial point
of view, to the holders of shares of Company Common Stock, and a copy of such
opinion has been delivered to Parent.
Section 3.20. NO BROKERS OR FINDERS. With the exception of the engagement of
Credit Suisse First Boston LLC by Company, none of Company and its Subsidiaries
has any liability or obligation to pay any fees or commissions to any financial
advisor, broker, finder or agent with respect to the transactions contemplated
hereby. Company has provided Parent with a correct and complete copy of any
engagement letter or other Contract between Company and Credit Suisse First
Boston LLC relating to the Merger and the other transactions contemplated
hereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT
Except as set forth in the disclosure schedule delivered by Parent to
Company prior to the execution and delivery of this Agreement (which schedule
sets forth, among other things, items the disclosure of which is necessary or
appropriate either in response to an express disclosure requirement contained
in, or as an exception to, one or more representations or warranties contained
in this ARTICLE 4, PROVIDED, HOWEVER, that notwithstanding anything in this
Agreement to the contrary, the mere inclusion of an item in such schedule as an
exception to a representation or warranty shall not be deemed an admission that
such item represents a material exception or material fact, event or
circumstance or that such item has had or would reasonably be expected have a
Material Adverse Effect on Parent) (the "PARENT DISCLOSURE SCHEDULE"), Parent
represents and warrants to Company as follows:
Section 4.1. ORGANIZATION AND QUALIFICATION. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its incorporation and has full corporate power and
authority to own, operate and lease the properties owned or used by it and to
carry on its business as and where such is now being conducted.
Section 4.2. AUTHORIZATION. Each of Parent and Merger Sub has full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Parent and Merger
Sub, and no other corporate proceedings on the part of Parent, Merger Sub or
their respective stockholders are necessary to authorize this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Parent and Merger Sub and constitutes a valid and
legally binding obligation of Parent and Merger Sub enforceable in accordance
with its terms and conditions.
23
Section 4.3. NO VIOLATION.
(a) The execution and delivery of this Agreement by Parent and Merger Sub
do not, and the consummation of the Merger and the other transactions
contemplated hereby by Parent and Merger Sub will not, conflict with or result
in any violation of, or constitute a default (with or without notice or lapse of
time, or both) under, or give rise to a right of, or result by its terms in the,
termination, amendment, cancellation or acceleration of any obligation or the
loss of a material benefit under, or to increased, additional, accelerated or
guaranteed rights or entitlements of any Person under, or create any obligation
to make a payment to any other Person under, or result in the creation of a Lien
on, or the loss of, any assets of Parent or any of its Subsidiaries pursuant to,
(i) any provision of the articles of incorporation, by-laws or similar
organizational document of Parent or any of its Subsidiaries or (ii) subject to
obtaining or making the consents, approvals, Orders, authorizations,
registrations, declarations and filings referred to in SECTION 4.3(B), any
Contract to which Parent or any of its Subsidiaries is a party or by which any
of their respective properties or assets is bound or any Order or Law applicable
to Parent or any of its Subsidiaries or their respective properties or assets,
except, in the case of this CLAUSE (II), as would not prevent or materially
delay the consummation of the transactions contemplated hereby.
(b) No consent, approval, Order or authorization of, or registration,
declaration or filing with, any Governmental Entity or any other Person is
required by or with respect to Parent or any of its Subsidiaries in connection
with the execution and delivery of this Agreement by Parent or the consummation
of the Merger and the other transactions contemplated hereby, except for the
Necessary Consents.
Section 4.4. FILINGS WITH THE SEC; FINANCIAL STATEMENTS. Except as, individually
or in the aggregate, would not reasonably be expected to prevent or materially
delay or impede the consummation of the transactions contemplated hereby:
(a) Parent has filed all required registration statements, prospectuses,
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC since December 31, 2002 (collectively, including all exhibits
thereto, the "PARENT SEC REPORTS").
(b) None of the Parent SEC Reports, as of their respective dates (or, if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing), contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(c) All of the Parent SEC Reports, as of their respective dates (or as of
the date of any amendment to the respective Parent SEC Report), complied as to
form in all material respects with the applicable requirements of the Securities
Act and the Exchange Act.
(d) Each of the financial statements (including the related notes and
schedules thereto) of Parent included in the Parent SEC Reports, as of their
respective dates (or as of the date of any amendment to the respective Parent
SEC Report), complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
24
SEC with respect thereto, have been prepared in accordance with GAAP (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods and the dates involved (except as may
be indicated in the notes thereto) and fairly present, in all material respects,
the consolidated financial position and consolidated results of operations and
cash flows of Parent and its consolidated Subsidiaries as of the respective
dates or for the respective periods set forth therein, subject, in the case of
the unaudited interim financial statements, to the absence of notes and normal
year-end adjustments that have not been and are not expected to be material in
amount.
Section 4.5. LITIGATION. Except as disclosed in the Parent SEC Reports filed
prior to the date of this Agreement, there is no claim, action, suit,
arbitration, proceeding, investigation or inquiry, whether civil, criminal or
administrative, pending or, to the knowledge of Parent, threatened against
Parent or any of its Subsidiaries or any of their respective officers or
directors (in such capacity) or any of their respective businesses or assets, at
law or in equity, before or by any Governmental Entity or arbitrator, except as,
individually or in the aggregate, would not reasonably be expected to prevent or
materially delay the consummation of the transactions contemplated hereby.
Section 4.6. AVAILABLE FUNDS. Parent and Merger Sub have available to them, or
as of the Effective Time will have available to them, all funds necessary for
the payment of the Merger Consideration upon the consummation of the
transactions contemplated hereby and the related fees and expenses of Parent and
Merger Sub.
Section 4.7. CAPITALIZATION OF MERGER SUB. As of the date of this Agreement, the
authorized capital stock of Merger Sub consists of 1,000 shares of Common Stock,
par value $0.01 per share, all of which are validly issued and outstanding. All
of the issued and outstanding capital stock of Merger Sub is, and at the
Effective Time will be, owned by Parent or a direct or indirect wholly-owned
Subsidiary of Parent. Merger Sub has not conducted any business prior to the
date hereof and has no, and prior to the Effective Time will have no, assets,
liabilities or obligations of any nature other than those incident to its
formation and pursuant to this Agreement and the Merger and the other
transactions contemplated by this Agreement.
ARTICLE 5
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 5.1. COVENANTS OF COMPANY. During the period commencing on the date of
this Agreement and continuing until the Effective Time, except as specifically
contemplated or permitted by this Agreement or SCHEDULE 5.1 to the Company
Disclosure Schedule or as otherwise approved in advance by Parent in writing:
(a) ORDINARY COURSE. Company shall, and shall cause each of its
Subsidiaries to, conduct their respective businesses only in, and not take any
action except in, the ordinary and usual course of business and consistent with
past practice, in each case in all material respects. Company shall, and shall
cause each of its Subsidiaries to, use their respective reasonable best efforts
to preserve intact the business organization of Company and its Subsidiaries, to
keep
25
available the services of their respective present officers and key employees
and to preserve the goodwill of those having business relationships with Company
and its Subsidiaries.
(b) GOVERNING DOCUMENTS. Company shall not, and shall not permit any of its
Subsidiaries to, make any change or amendment to their respective certificate of
incorporation, by-laws or similar organizational documents.
(c) DIVIDENDS. Company shall not, and shall not permit any of its
Subsidiaries to, declare, set aside, pay or make any dividend or other
distribution or payment (whether in cash, stock or other property) with respect
to any shares of the capital stock or any other voting securities of any of
them, other than dividends and distributions by (i) a direct or indirect wholly
owned Subsidiary of Company to its parent, PROVIDED that such Subsidiary and its
Parent are both domestic corporations as defined in Section 7701(a)(3) and (4)
of the Code, or (ii) a Subsidiary that is partially owned by Company or any of
its Subsidiaries, PROVIDED that Company or any such Subsidiary receives or will
receive its proportionate share thereof and PROVIDED FURTHER that such
Subsidiary and its Parent are both domestic corporations as defined in Section
7701(a)(3) and (4) of the Code; PROVIDED, HOWEVER, that (A) Company may declare
and pay its regular quarterly cash dividend during the third fiscal quarter of
2005 at a rate not in excess of $0.20 per Share with record and payment dates
consistent with the prior year and (B) if Parent and Company, acting in good
faith on or prior to December 1, 2005, agree in writing that the Effective Time
is not reasonably likely to occur on or prior to January 31, 2006, then Company
may declare and pay its regular quarterly cash dividend during the fourth fiscal
quarter of 2005 at a rate not in excess of $0.20 per Share with record and
payment dates consistent with the prior year.
(d) CHANGES IN SHARE CAPITAL. Company shall not, and shall not permit any
of its Subsidiaries to, purchase or redeem any shares of the capital stock or
any other securities of any of them or any rights, warrants or options to
acquire any such shares or other securities, or adjust, split, combine or
reclassify any of the capital stock or any other securities of any of them or
make any other changes in any of their capital structures (except pursuant to
the exercise of Company Stock Options or pursuant to the surrender of shares of
Company Common Stock to Company or withholding of shares of Company Common Stock
by Company to cover withholding obligations).
(e) EMPLOYEE BENEFIT PLANS. Company shall not, and shall not permit any of
its Subsidiaries to, (i) amend any material provision of any Employee Benefit
Plan, (ii) adopt or enter into any arrangement that would be an Employee Benefit
Plan or (iii) increase the compensation or benefits of any director, officer or
employee, or take any similar action, except, in the case of this CLAUSE (III),
(A) to the extent required under the terms of any agreements, trusts, plans,
funds or other arrangements existing as of the date of this Agreement, (B) to
the extent required by applicable Law or (C) for increases in annual base salary
in the ordinary course of business consistent with past practice.
(f) ISSUANCE OF SECURITIES. Except for the issuance of Company Common Stock
upon the exercise of Company Stock Options outstanding on the date of this
Agreement in accordance with their current terms, Company shall not, and shall
not permit any of its Subsidiaries to, (i) grant, issue or sell any shares of
capital stock or any other securities, including Company Voting
26
Debt, or any benefit of any of them (including any benefit that is the same as
or similar to a Company Stock-Based Award), (ii) issue any securities
convertible into or exchangeable for, or options, warrants to purchase, scrip,
rights to subscribe for, calls or commitments of any character whatsoever
relating to, or enter into any Contract with respect to the issuance of, any
shares of capital stock or any other securities, including Company Voting Debt,
of any of them, (iii) take any action to accelerate the vesting of any Company
Stock Options, Company Restricted Shares or Company Stock-Based Awards or (iv)
take any action under the terms of the Company Stock Plans, Employee Benefit
Plans, Stock Purchase Plan or otherwise with respect to Company Stock Options,
Company Restricted Shares, Company Stock-Based Awards or rights to acquire SPP
Shares that is inconsistent with the treatment that SECTION 1.9 (and SECTION
5.4(d)) contemplate. Company shall not permit any employee to participate in the
Stock Purchase Plan who is not a participant with respect to 2005 as of the date
of this Agreement. In addition, if the Effective Time has not occurred on or
prior to December 31, 2005, then Company shall suspend operation of the Stock
Purchase Plan for 2006. Company shall not amend the Stock Purchase Plan or any
rules and regulations thereunder in any manner that could allow a participant to
purchase more shares of Company Common Stock in 2005 than would be the case
under payroll deduction authorizations, the Stock Purchase Plan and the rules
and regulations thereunder as of the date of this Agreement.
(g) INDEBTEDNESS. Company shall not, and shall not permit any of its
Subsidiaries to, (i) assume any indebtedness or, except in the ordinary course
of business for working capital purposes under facilities existing on the date
of this Agreement, in connection with ordinary course trade payments or in
connection with ordinary course trade receivables financing, incur any
indebtedness for borrowed money or (ii) except in the ordinary course of
business consistent with past practice, make any loans, advances or capital
contributions to, or investments in, any other Person. Subject to SECTION
5.4(a), Company shall not, and shall not permit any of its Subsidiaries to,
enter into any new credit agreements or enter into any amendments or
modifications of any existing credit agreements.
(h) NO ACQUISITIONS. Company shall not, and shall not permit any of its
Subsidiaries to, acquire (i) by merging or consolidating with, or by purchasing
a substantial portion of the stock or assets of, or by any other manner, any
business or any corporation, partnership, association or other business
organization or division thereof or (ii) any assets, except for purchases of
inventory items or supplies in the ordinary course of business consistent with
past practice and capital expenditures in compliance with SECTION 5.1(l).
(i) NO DISPOSITIONS. Company shall not, and shall not permit any of its
Subsidiaries to, lease, mortgage or otherwise encumber, or sell, transfer or
otherwise dispose of, any of its properties or assets (including capital stock
of Subsidiaries of Company), except for any such dispositions (including trade
receivables in financing transactions) in the ordinary course of business
consistent with past practice.
(j) TAXES. Company shall not, and shall not permit any of its Subsidiaries
to, (i) make any Tax election which results in a material change in a Tax
liability or Tax refund, waive any restriction on any assessment period relating
to a material amount of Taxes or settle or compromise any material amount of
income Tax or other material Tax liability or refund or (ii)
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change any material aspect of Company's or any of its Subsidiaries' method of
accounting for Tax purposes.
(k) DISCHARGE OF LIABILITIES. Company shall not, and shall not permit any
of its Subsidiaries to, (i) pay, discharge or satisfy any material claims,
liabilities or obligations (absolute, accrued, asserted, unasserted, contingent
or otherwise) except in the ordinary course of business consistent with past
practice or in accordance with their terms or (ii) settle any material claim,
action, proceeding or investigation except in the ordinary course of business
consistent with past practice.
(l) CAPITAL EXPENDITURES. Company shall not, and shall not permit any of
its Subsidiaries to, make or commit to make any capital expenditures in respect
of any capital expenditure project where the aggregate of such capital
expenditures exceeds $5,000,000 or its foreign currency equivalent on the date
of this Agreement other than those capital expenditures that Company has
approved as of the date of this Agreement.
(m) COMPANY CONTRACTS. Company shall not, and shall not permit any of its
Subsidiaries to, enter into or terminate any Company Contract, or make any
amendment to any Company Contract, other than renewals of Contracts without
changes in terms that are materially adverse to Company and/or its Subsidiaries.
(n) INSURANCE. Company shall use reasonable best efforts, and shall cause
its Subsidiaries to use reasonable best efforts, not to permit any material
insurance policy or arrangement naming or providing for Company or any of its
Subsidiaries as a beneficiary or a loss payable payee to be canceled or
terminated (unless such policy or arrangement is canceled or terminated in the
ordinary course of business and concurrently replaced with a policy or
arrangement with substantially similar coverage) or materially impaired.
(o) ACCOUNTING METHODS. Company shall not, and shall not permit any of its
Subsidiaries to, implement or adopt any change in its material accounting
principles, practices or methods except to the extent required by GAAP or the
rules or policies of the Public Company Accounting Oversight Board.
(p) NO RELATED ACTIONS. Company shall not, and shall not permit any of its
Subsidiaries to, authorize or enter into any agreement, commitment or
arrangement to do any of the foregoing.
Notwithstanding the foregoing, the provisions of CLAUSES (f), (g), (h), (i),
(k), (m) and (p) of this SECTION 5.1 shall not apply to any transaction solely
between or among Company and any of its wholly owned Subsidiaries or solely
between or among any wholly owned Subsidiaries of Company, PROVIDED that such
transaction does not result in value leaving Company and its wholly owned
Subsidiaries taken as a whole.
Section 5.2. PROXY STATEMENT; COMPANY STOCKHOLDERS MEETING.
(a) As soon as practicable after the date of this Agreement (but in any
event no later than fifteen (15) Business Days after the date of this Agreement
without Parent's written consent, which shall not be unreasonably withheld),
Company shall prepare and file with the
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SEC a proxy statement and related materials with respect to the Merger and the
other transactions contemplated hereby (collectively, including all amendments
or supplements thereto, the "PROXY STATEMENT"). Parent shall cooperate in the
preparation of the Proxy Statement and shall promptly provide to Company any
information regarding Parent that is necessary or appropriate to include in the
Proxy Statement. Company shall ensure that the Proxy Statement complies as to
form in all material respects with the applicable provisions of the Exchange
Act. Company shall use its reasonable best efforts to have the Proxy Statement
cleared by the SEC and mailed to its stockholders as promptly as practicable
after its filing with the SEC. Company shall, as promptly as practicable after
receipt thereof, provide Parent with copies of all written comments, and advise
Parent of all oral comments, with respect to the Proxy Statement received from
the SEC. If, at any time prior to the Effective Time, any information relating
to Company, or any of its Subsidiaries, officers or directors, should be
discovered by Parent or Company that should be set forth in an amendment or
supplement to the Proxy Statement so that 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 were
made, not misleading, then the party that discovers such information shall
promptly notify the other party hereto and, to the extent required by Law,
Company shall promptly file with the SEC and disseminate to its stockholders an
appropriate amendment or supplement describing such information. Notwithstanding
the foregoing, prior to filing or mailing the Proxy Statement (or any amendment
or supplement thereto) or responding to any comments of the SEC with respect
thereto, Company shall (i) provide Parent with a reasonable opportunity to
review and comment on such document or response and (ii) include in such
document or response all reasonable comments that Parent proposes. On the date
of their filing or delivery, Company shall provide Parent with a copy of all
such filings with, and all such responses delivered to, the SEC.
(b) Company shall, as soon as reasonably practicable, duly take all lawful
action to call, give written notice of, convene and hold a meeting of its
stockholders on a date mutually agreeable to Parent (the "COMPANY STOCKHOLDERS
MEETING") for the purpose of obtaining the Company Requisite Stockholder Vote
with respect to the transactions contemplated hereby and shall take all lawful
action to solicit the approval of this Agreement by the Company Requisite
Stockholder Vote. The Board of Directors of Company shall recommend approval of
this Agreement by the stockholders of Company to the effect set forth in SECTION
3.7 (the "COMPANY RECOMMENDATION"), and the Board of Directors of Company shall
not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in
any manner adverse to Parent such recommendation or take any action or make any
statement in connection with the Company Stockholders Meeting inconsistent with
such recommendation, including a recommendation by Company's Board of Directors
of an Acquisition Proposal (collectively, a "CHANGE IN COMPANY RECOMMENDATION");
PROVIDED, HOWEVER, that the Board of Directors of Company may make a Change in
Company Recommendation in accordance with, and subject to the limitations set
forth in, SECTION 5.5. Notwithstanding any Change in Company Recommendation or
the existence of any Acquisition Proposal or any Superior Proposal, Company
shall cause this Agreement to be submitted to its stockholders at the Company
Stockholders Meeting for the purpose of approving this Agreement and the
transactions contemplated hereby, including the Merger.
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Section 5.3. ACCESS AND INFORMATION.
(a) Prior to the Effective Time, Company shall, and shall cause its
Subsidiaries to, upon reasonable notice, afford Parent and its counsel,
accountants, consultants and other authorized representatives reasonable access,
during normal business hours, to the employees, properties, books and records of
Company and its Subsidiaries so that they may have the opportunity to make such
investigations of the business and affairs of Company and its Subsidiaries as
they reasonably desire; PROVIDED, HOWEVER, that such investigation shall not
affect the representations and warranties made by Company in this Agreement.
Prior to their filing, Company shall furnish as promptly as practicable to
Parent a copy of each registration statement, prospectus, report, schedule,
form, statement and other document that will be filed by it or any of its
Subsidiaries after the date of this Agreement pursuant to the requirements of
federal or state securities Laws, the New York Stock Exchange, Inc. or the DGCL.
Company shall cause its officers and employees, in a manner consistent with the
fulfillment of their ongoing duties and obligations, to furnish such additional
financial and operating data and other information and respond to such inquiries
as Parent from time to time reasonably requests. All of the requirements of this
SECTION 5.3 shall be subject to any prohibitions or limitations of applicable
law and shall be subject to the Confidentiality Agreement.
(b) Prior to the Effective Time, Company shall promptly provide Parent with
copies of all monthly and other interim financial statements as the same become
available and shall cause one or more of its designated representatives to
confer on a regular basis with representatives of Parent upon Parent's
reasonable request. Company shall provide Parent with prompt written notice of
any material change in the business or affairs of Company or any of its
Subsidiaries and of any complaints, investigations or hearings (or
communications indicating that the same may be contemplated) by Governmental
Entities, or the institution or, to its knowledge, the threat of material
litigation (including all litigation relating to the transactions contemplated
hereby), and Company shall keep Parent fully informed of such events. Parent
shall provide Company with prompt written notice of the institution or, to its
knowledge, the threat of litigation relating to the transactions contemplated
hereby.
(c) Company shall provide Parent with a correct and complete list of all
Foreign Benefit Plans within 30 days following the date hereof.
Section 5.4. REASONABLE BEST EFFORTS.
(a) Each of Company and Parent shall cooperate with and assist the other
party, and shall use its reasonable best efforts, to promptly (i) take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under applicable Law to consummate the transactions
contemplated hereby as soon as practicable, including preparing and filing as
promptly as practicable all documentation to effect all necessary filings,
notices, petitions, statements, registrations, submissions of information,
applications and other documents, and (ii) obtain and maintain all approvals,
consents, registrations, permits, authorizations and other confirmations
required to be obtained from any other Person, including any Governmental
Entity, that are necessary, proper or advisable to consummate the Merger and
other transactions contemplated hereby in the most expeditious manner
practicable, but in any event before the Termination Date. Except as otherwise
expressly contemplated hereby, each of
30
Company and Parent shall not, and shall cause its Subsidiaries not to, take any
action or knowingly omit to take any action within its reasonable control where
such action or omission would, or would reasonably be expected to, result in (A)
any of the conditions to the Merger set forth in ARTICLE 6 not being satisfied
prior to the Termination Date or (B) a material delay in the satisfaction of
such conditions. Neither Parent nor Company will directly or indirectly extend
any waiting period under the HSR Act or other Regulatory Laws or enter into any
agreement with a Governmental Entity to delay or not to consummate the
transactions contemplated by this Agreement except with the prior written
consent of the other, which consent shall not be unreasonably withheld in light
of closing the transactions contemplated by this Agreement on or before the
Termination Date.
(b) In furtherance and not in limitation of the foregoing, each party
hereto shall (i) make an appropriate filing of a Notification and Report Form
pursuant to the HSR Act and appropriate filings under all other applicable
Regulatory Laws with respect to the transactions contemplated hereby as promptly
as practicable after the date of this Agreement, (ii) supply as promptly as
practicable any additional information and documentary material that may be
requested pursuant to the HSR Act and any other applicable Regulatory Laws and
(iii) take all other actions necessary to cause the expiration or termination of
the applicable waiting periods under the HSR Act and any other applicable
Regulatory Laws as soon as practicable.
(c) In connection with this SECTION 5.4, the parties hereto shall (i)
cooperate in all respects with each other in connection with any filing,
submission, investigation or inquiry, (ii) promptly inform the other party of
any communication received by such party from, or given by such party to, the
Antitrust Division of the Department of Justice (the "DOJ"), the Federal Trade
Commission (the "FTC") or any other Governmental Entity and of any material
communication received or given in connection with any proceeding by a private
party, in each case, regarding any of the transactions contemplated hereby,
(iii) have the right to review in advance, and to the extent practicable each
shall consult the other on, any filing made with, or written materials to be
submitted to, the DOJ, FTC or any other Governmental Entity or, in connection
with any proceeding by a private party, any other Person, in connection with any
of the transactions contemplated hereby, and (iv) consult with each other in
advance of any meeting, discussion, telephone call or conference with the DOJ,
the FTC or any other Governmental Entity or, in connection with any proceeding
by a private party, with any other Person, and to the extent not expressly
prohibited by the DOJ, the FTC or any other Governmental Entity or Person, give
the other party the opportunity to attend and participate in such meetings and
conferences, in each case, regarding any of the transactions contemplated
hereby. The parties hereto may, as each deems advisable and necessary,
reasonably designate any competitively sensitive material provided to the other
under this SECTION 5.4 as "Outside Counsel Only." Such materials and the
information contained therein shall be given only to the outside legal counsel
of the recipient and will not be disclosed by such outside counsel to employees,
officers or directors of the recipient unless express permission is obtained in
advance from the source of the materials (Company or Parent, as the case may be)
or its legal counsel. Notwithstanding anything to the contrary in this SECTION
5.4, materials provided to the other party or its counsel may be redacted to
remove references concerning the valuation of Company and its Subsidiaries.
Notwithstanding anything to the contrary in this Agreement, neither Parent nor
any of its Subsidiaries shall be required to dispose of or hold separate, or to
agree to dispose of or hold separate or restrict its ownership and operation of,
all or a portion of the business or assets of Parent and its Subsidiaries,
including
31
Company and its Subsidiaries, if such disposal, holding separate, or agreement
to dispose or hold separate or restrict its ownership and operation,
individually or in the aggregate with any other such disposal, holding separate,
or agreement to dispose or hold separate or restrict its ownership and operation
required of Parent or any of its Subsidiaries in connection with the
transactions contemplated hereby, would reasonably be expected to have a
Material Adverse Effect on Parent or on Company, in each case, measured on a
scale relative to Company and its Subsidiaries taken as a whole.
(d) Notwithstanding anything to the contrary in this Agreement, Company
shall comply with the provisions of SCHEDULE 5.4(d) to the Company Disclosure
Schedule.
Section 5.5. ACQUISITION PROPOSALS.
(a) Until this Agreement has been terminated in accordance with SECTION 7.1
(and the payments, if any, required to be made in connection with such
termination pursuant to SECTION 7.2(b) have been made), Company shall not, and
shall not authorize or permit any of its Affiliates to, and shall cause its and
its Affiliates' officers, directors, employees, consultants, representatives and
other agents, including investment bankers, attorneys, accountants and other
advisors (collectively, the "REPRESENTATIVES"), not to, directly or indirectly,
(1) encourage (including by way of furnishing or disclosing information),
solicit, initiate, make or facilitate the making of, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition Proposal (including by taking
any action after the date of this Agreement that would make Section 203 of the
DGCL inapplicable to any Acquisition Proposal), (2) participate in any way in
discussions or negotiations with, or furnish or disclose any information to, any
Person (other than Parent or any of its Subsidiaries) in connection with any
Acquisition Proposal, (3) release or permit the release of any Person from, or
waive or permit the waiver of any provisions of, or otherwise fail to exercise
its rights under, any confidentiality, standstill or similar agreement to which
Company is a party or under which Company has any rights with respect to the
divestiture of the voting securities or any material portion of the assets of
Company (except for any such agreement with Parent or any of its Subsidiaries),
(4) effect a Change in Company Recommendation, (5) approve or recommend, or
propose to approve or recommend, any Acquisition Proposal or (6) enter into any
agreement, letter of intent, agreement-in-principle, acquisition agreement or
other instrument contemplating or otherwise relating to any Acquisition
Proposal. Notwithstanding the foregoing, at any time prior to the time that the
Company Requisite Stockholder Vote is obtained, Company and the Representatives
may:
(i) participate in discussions or negotiations with, or furnish
or disclose nonpublic information to, any Person in response to an
unsolicited, bona fide and written Acquisition Proposal that is
submitted to Company by such Person after the date of this Agreement
and prior to the time that the Company Requisite Stockholder Vote is
obtained if and so long as (A) none of Company, any of its Affiliates
or any of the Representatives has violated any of the provisions of
this SECTION 5.5, (B) a majority of the members of the Board of
Directors of Company determines in good faith, after consultation with
a nationally recognized financial advisor, that (I) such Person is
reasonably capable of consummating a Superior Proposal taking into
account the legal, financial, regulatory and other aspects of
32
such Acquisition Proposal and (II) such Acquisition Proposal
constitutes or is reasonably likely to constitute a Superior Proposal,
(C) a majority of the members of the Board of Directors of Company
determines in good faith, after consultation with its outside legal
counsel, that failing to take such action would constitute a breach of
its fiduciary duties to Company's stockholders under applicable Law,
(D) at least three Business Days prior to participating in discussions
or negotiations with, or furnishing or disclosing any nonpublic
information to, such Person, Company provides Parent with written
notice of the identity of such Person and of Company's intention to
participate in discussions or negotiations with, or to furnish or
disclose nonpublic information to, such Person, (E) prior to
participating in discussions or negotiations with, or furnishing or
disclosing any nonpublic information to, such Person, Company receives
from such Person an executed confidentiality and standstill agreement
containing terms no less restrictive upon such Person, in any respect,
than the terms applicable to Parent under the Confidentiality
Agreement, which confidentiality and standstill agreement shall not
provide such Person with any exclusive right to negotiate with Company
or have the effect of prohibiting Company from satisfying its
obligations under this Agreement, and (F) contemporaneously with
furnishing or disclosing any nonpublic information to such Person,
Company furnishes such information to Parent (to the extent such
information has not been previously delivered or made available by
Company to Parent); and
(ii) approve or recommend, or enter into (and, in connection
therewith, effect a Change in Company Recommendation), a definitive
agreement with respect to an unsolicited, bona fide and written
Acquisition Proposal that is submitted to Company after the date of
this Agreement and prior to the time that the Company Requisite
Stockholder Vote is obtained if and so long as (A) none of Company,
any of its Affiliates or any of the Representatives has violated any
of the provisions of this SECTION 5.5, (B) Company provides Parent
with written notice indicating that Company, acting in good faith,
believes that the Acquisition Proposal is reasonably likely to
constitute a Superior Proposal and, therefore, plans to conduct a
meeting of the Board of Directors of Company for the purpose of
considering whether the Acquisition Proposal constitutes a Superior
Proposal, which notice shall be delivered to Parent at least three
Business Days prior to the date of such meeting of the Board of
Directors of Company, (C) during the three Business Day period after
Company provides Parent with the written notice described in CLAUSE
(B) above, Company shall cause its financial and legal advisors to
negotiate in good faith with Parent in an effort to make such
adjustments to the terms and conditions of this Agreement such that
the Acquisition Proposal would not constitute a Superior Proposal, (D)
notwithstanding the negotiations and adjustments pursuant to CLAUSE
(C) above but after taking into account the results of such
negotiations and adjustments, the Board of Directors of Company makes
the determination necessary for such Acquisition Proposal to
constitute a Superior Proposal, (E) notwithstanding the negotiations
and adjustments pursuant to CLAUSE (C) above but after taking into
account the results of such negotiations and adjustments, a majority
of the members of the Board of Directors of Company determines in good
faith, after consultation with its outside legal counsel, that
33
failing to approve or recommend or enter into a definitive agreement
with respect to such Acquisition Proposal would constitute a breach of
its fiduciary duties to Company's stockholders under applicable Law
and (F) not later than the earlier of the approval or recommendation
of, or the execution and delivery of a definitive agreement with
respect to, any such Superior Proposal, Company (I) terminates this
Agreement pursuant to SECTION 7.1(h), (II) makes the payment required
to be made pursuant to SECTION 7.2(b) and (III) delivers to Parent a
written certification duly executed from each other party to such
Superior Proposal pursuant to which each such other party certifies
that it is aware of the amount payable under SECTION 7.2(b) and that
it waives any right that it may have to contest the amount so payable.
(b) In addition to the obligations of Company set forth in SECTION 5.5(a),
within 24 hours of the receipt thereof, Company shall provide Parent with
written notice of (i) any request for information, any Acquisition Proposal or
any inquiry, proposal, discussions or negotiations with respect to any
Acquisition Proposal, (ii) the material terms and conditions of such request,
Acquisition Proposal, inquiry, proposal, discussions or negotiations and (iii)
the identity of the Person making any such Acquisition Proposal or such request,
inquiry or proposal or with whom such discussions or negotiations are taking
place, and Company shall promptly provide Parent with copies of any written
materials received by Company in connection with any of the foregoing. Company
shall keep Parent fully informed of the status and general progress (including
amendments or proposed amendments to any material terms) of any such request or
Acquisition Proposal and keep Parent fully informed as to the details of any
information requested of or provided by Company and as to the details of all
discussions or negotiations. Without limiting Company's obligations under
SECTION 5.5(a), Company shall provide Parent with notice at least three Business
Days prior to (or such lesser notice as is provided to the members of the Board
of Directors of Company) any meeting of the Board of Directors of Company at
which the Board of Directors is reasonably expected to discuss or consider any
Acquisition Proposal.
(c) Company shall, and shall cause its Affiliates and the Representatives
to, immediately cease all discussions or negotiations, if any, with any Person
other than Parent and its Subsidiaries that may be ongoing as of the date of
this Agreement with respect to any Acquisition Proposal. Company shall
immediately request each Person who has heretofore executed a confidentiality
agreement in connection with its consideration of acquiring Company or any
portion thereof (including any of its Subsidiaries) to return all nonpublic
information heretofore furnished to such Person by or on behalf of Company.
(d) Nothing contained in this SECTION 5.5 shall prohibit Company from
complying with Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with
respect to an Acquisition Proposal, PROVIDED that such Rules shall in no way
eliminate or modify the effect that any action pursuant to such Rules would
otherwise have under this Agreement.
(e) Any violation of this SECTION 5.5 by Company's Affiliates or the
Representatives shall be deemed to be a breach of this Agreement by Company,
whether or not such Affiliate or Representative is authorized to act and whether
or not such Affiliate or Representative is purporting to act on behalf of
Company.
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Section 5.6. INDEMNIFICATION; DIRECTORS AND OFFICERS INSURANCE. From and after
the Effective Time, Parent shall, or shall cause the Surviving Corporation to,
indemnify and hold harmless all current and former officers and directors of
Company and its Subsidiaries to the same extent such Persons are indemnified and
held harmless as of the date of this Agreement by Company pursuant to the
Amended and Restated Certificate of Incorporation of Company or the By-Laws of
Company for acts or omissions occurring at or prior to the Effective Time,
including those in respect of the Merger and the other transactions contemplated
hereby. All rights to indemnification and exculpation from liabilities for acts
or omissions occurring at or prior to the Effective Time now existing in favor
of any current and former officers, directors and employees of Company or any of
its Subsidiaries or any of their respective predecessors, and any Person prior
to the Effective Time serving at the request of any such party as a director,
officer, employee fiduciary or agent of another corporation, partnership, trust
or other enterprise, as provided in the respective certificates or articles of
incorporation or by-laws (or comparable organizational documents) of Company or
any of its Subsidiaries, and any existing indemnification agreements, shall
survive the Merger and shall continue in full force and effect in accordance
with their terms, and shall not be amended, repealed or otherwise modified in
any manner that would adversely affect the rights thereunder of such individuals
for acts or omissions occurring at or prior to the Effective Time. Parent shall
provide, or shall cause the Surviving Corporation to provide, for an aggregate
period of not less than six years from the Effective Time, Company's current
directors and officers an insurance policy that provides coverage for events
occurring prior to the Effective Time (the "D&O Insurance") on the same terms as
Company's existing policy or, if such insurance coverage is unavailable,
coverage that is on terms no less favorable to such directors and officers;
provided, however, that neither Parent nor the Surviving Corporation shall be
required to pay an annual premium for the D&O Insurance in excess of 250% of the
last annual premium that Company paid prior to the date of this Agreement, but
in such case Parent shall, or shall cause the Surviving Corporation to, purchase
as much coverage as possible for such amount. The provisions of this SECTION 5.6
are intended to be for the benefit of, and shall be enforceable by, each
Indemnified Party and his heirs and representatives.
Section 5.7. EMPLOYEE BENEFITS. Notwithstanding anything to the contrary
contained in this Agreement, Parent and Company shall comply with the provisions
of SCHEDULE 5.7 of the Company Disclosure Schedule.
Section 5.8. PUBLIC ANNOUNCEMENTS. Parent and Company shall consult with, and
provide each other the reasonable opportunity to review and comment on, any
press release relating to this Agreement or the transactions contemplated hereby
and shall not issue any such press release prior to such consultation except as
may be required by applicable Law or by obligations pursuant to any applicable
listing agreement with any national securities exchange.
Section 5.9. SECTION 16 MATTERS. Prior to the Effective Time, Company shall take
all actions that are required to cause any dispositions of Company Common Stock
(and derivative securities with respect to Company Common Stock) resulting from
the transactions contemplated by Article 1 by each individual who is subject to
the reporting requirements of Section 16(a) of the Exchange Act with respect to
Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.
35
Section 5.10. STATE TAKEOVER LAWS. If any "fair price," "business combination"
or "control share acquisition" statute or similar Law shall become applicable to
the transactions contemplated hereby, then Company and the Board of Directors of
Company shall use their respective reasonable best efforts to grant such
approvals and take such actions as are necessary so that the transactions
contemplated hereby may be consummated as promptly as practicable on the terms
contemplated hereby and otherwise act to minimize the effects of any such
statute or similar Law on the transactions contemplated hereby.
Section 5.11. NOTIFICATION OF CERTAIN MATTERS. Parent shall use its reasonable
best efforts to give prompt written notice to Company, and Company shall use its
reasonable best efforts to give prompt written notice to Parent, of: (a) the
occurrence, or non-occurrence, of any event the occurrence, or non-occurrence,
of which such party is aware and that would be reasonably likely to cause (i)
any representation or warranty made by such party in this Agreement to be untrue
or inaccurate in any material respect or (ii) any covenant, condition or
agreement made by such party in this Agreement not to be complied with or
satisfied in all material respects, (b) any failure of such party to comply in a
timely manner with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement or (c) any change or event
affecting such party that would be reasonably be expected to have a Material
Adverse Effect on such party; PROVIDED, HOWEVER, that the delivery of any notice
pursuant to this SECTION 5.11 shall not limit or otherwise affect the remedies
available under this Agreement to the party receiving such notice; and provided
further that no party shall have the right not to close the Merger or the right
to terminate this Agreement as a result of the delivery of such a notice if the
underlying breach would not result in such party having such rights under the
terms of ARTICLES 6 and 7 hereof.
Section 5.12. CERTAIN LITIGATION. Company shall give Parent the opportunity to
participate in the defense or settlement of any litigation against Company or
its officers or directors relating to the transactions contemplated hereby.
Company shall not agree to any compromise or settlement of such litigation
without Parent's consent.
Section 5.13. CONFIDENTIALITY. Each of Company and Parent acknowledges and
confirms that (a) Company and Parent have entered into a Confidentiality
Agreement, dated July 11, 2005 (the "CONFIDENTIALITY AGREEMENT"), (b) all
information provided by each party hereto to the other party hereto pursuant to
this Agreement is subject to the terms of the Confidentiality Agreement and (c)
the Confidentiality Agreement shall remain in full force and effect in
accordance with its terms and conditions. Notwithstanding the foregoing, the
eighth paragraph of the Confidentiality Agreement shall be deemed deleted
therefrom, and shall have no further force or effect, as of the date on which
any Acquisition Proposal shall have been publicly announced or otherwise
publicly communicated to the senior management, Board of Directors or
stockholders of Company, PROVIDED, HOWEVER, that, if Company shall not have
breached in any material respect any of the provisions of SECTION 5.5 with
respect to such Acquisition Proposal, then such eighth paragraph shall be deemed
reinstated in accordance with its original terms as of the earlier of (A) the
date on which Company and the third party making such Acquisition Proposal enter
into a confidentiality and standstill agreement in accordance with SECTION
5.5(a)(i)(E) and (B) the date of a public announcement by the third party making
such Acquisition Proposal that such Acquisition Proposal has been withdrawn in
its entirety (it being understood that the provisions of this sentence shall
apply with respect to each Acquisition Proposal that is announced or
36
otherwise publicly communicated in the manner described above from time to time;
accordingly, such eighth paragraph shall not be deemed reinstated if neither
CLAUSE (A) nor (B) applies with respect to any other applicable Acquisition
Proposal).
Section 5.14. RESIGNATIONS. Prior to the Effective Time, Company shall cause
each member of the Board of Directors of Company to execute and deliver a
letter, which shall not be revoked or amended prior to the Effective Time,
effectuating his or her resignation as a director of Company effective
immediately prior to the Effective Time. Prior to the Effective Time, Company
shall obtain the resignations of such directors of its Subsidiaries as Parent
shall request with reasonable advance notice.
ARTICLE 6
CONDITIONS TO THE MERGER
Section 6.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of Parent, Merger Sub and Company to effect the Merger
shall be subject to the satisfaction on or prior to the Closing Date of the
following conditions:
(a) STOCKHOLDER APPROVAL. The Merger and this Agreement shall have been
approved by the Company Requisite Stockholder Vote in accordance with applicable
Law.
(b) LEGALITY. No Law or Order (whether temporary, preliminary or permanent,
but excluding Regulatory Laws and Orders arising thereunder or related thereto)
shall have been enacted, entered, promulgated, adopted, issued or enforced by
any Governmental Entity that is then in effect and has the effect of making the
Merger illegal or otherwise prohibiting the consummation of the Merger.
(c) HSR ACT AND EC MERGER REGULATION APPROVALS. The waiting period
applicable to the Merger under the HSR Act shall have expired or been
terminated, and the approval of the Merger by the European Commission shall have
been granted pursuant to the EC Merger Regulation.
Section 6.2. ADDITIONAL CONDITIONS TO OBLIGATIONS OF PARENT AND MERGER SUB. The
respective obligations of Parent and Merger Sub to effect the Merger shall be
further subject to the satisfaction on or prior to the Closing Date of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of Company set forth in SECTION 3.2(a) shall be true and correct
(other than de minimis inaccuracies) as of the date of this Agreement and as of
the Closing Date as though made on and as of the Closing Date, except (i) for
changes specifically permitted by this Agreement and (ii) to the extent
representations and warranties by their terms speak only as of a certain date,
in which case such representations and warranties shall be true and correct as
of such date; and each of the other representations and warranties of Company
set forth in this Agreement (but without regard to any materiality
qualifications or references to Material Adverse Effect contained in any
representation or warranty) shall be true and correct as of the date of this
Agreement and as of the Closing Date as though made on and as of the Closing
Date, except (A) for changes specifically permitted by this Agreement, (B) to
the extent representations and warranties by
37
their terms speak only as of a certain date, in which case such representations
and warranties shall be true and correct as of such date, and (C) where such
failures of the representations and warranties to be true and correct,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Company.
(b) COVENANTS. Company shall have performed in all material respects all
obligations and complied in all material respects with all covenants required by
this Agreement to be performed or complied with by it at or prior to the Closing
Date.
(c) MATERIAL ADVERSE CHANGE. No event, change, effect, condition, fact or
circumstance shall have occurred after the date of this Agreement, including any
event, change, effect, condition, fact or circumstance that reflects a material
adverse change in the matters disclosed to Parent in the Company Disclosure
Schedule of a nature that would not reasonably be expected based on the content
of such disclosure, that, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect on Company.
(d) OFFICER'S CERTIFICATE. Company shall have delivered to Parent a
certification of the Chief Executive Officer, the Chief Financial Officer or
another executive officer (reasonably acceptable to Parent) of Company to the
effect that each of the conditions specified in SECTIONS 6.2(a), (b) and (c) is
satisfied in all respects.
(e) OTHER REGULATORY APPROVALS. Except as, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
Parent, including the Surviving Corporation and its Subsidiaries, all actions by
or in respect of, or filings with, any Governmental Entity under any Regulatory
Law other than the HSR Act and the EC Merger Regulation that are required to
permit the consummation of the Merger shall have been taken, made or obtained.
(f) DISSENTING SHARES. The total number of Dissenting Shares shall not
exceed 15% of the issued and outstanding shares of Company Common Stock as of
the Closing Date.
Section 6.3. ADDITIONAL CONDITIONS TO OBLIGATION OF COMPANY. The obligation of
Company to effect the Merger shall be further subject to the satisfaction on or
prior to the Closing Date of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of Parent set forth in this Agreement shall be true and correct (but
without regard to any materiality qualifications or references to Material
Adverse Effect contained in any representation or warranty) as of the date of
this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except (i) for changes specifically permitted by this Agreement,
(ii) to the extent representations and warranties by their terms speak only as
of a certain date, in which case such representations and warranties shall be
true and correct as of such date, and (iii) where such failures of the
representations and warranties to be true and correct, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
Parent.
(b) COVENANTS. Parent shall have performed in all material respects all
obligations and complied in all material respects with all covenants required by
this Agreement to be performed or complied with by it at or prior to the Closing
Date.
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(c) OFFICER'S CERTIFICATE. Parent shall have delivered to Company a
certification of the Chief Executive Officer, the Chief Financial Officer or
another executive officer (reasonably acceptable to Company) of Parent to the
effect that each of the conditions specified above in SECTIONS 6.3(a) and (b) is
satisfied in all respects.
(d) OTHER REGULATORY APPROVALS. All actions by or in respect of, or filings
with, any Governmental Entity under any Regulatory Law other than the HSR Act
and the EC Merger Regulation that are required to permit the consummation of the
Merger shall have been taken, made or obtained if and to the extent the failure
to take such actions or make such filings is reasonably likely to result in an
Order obligating the stockholders of Company to disgorge the Merger
Consideration.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
Section 7.1. TERMINATION. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, whether before or after
receipt of the Company Requisite Stockholder Vote:
(a) By mutual written consent of Company and Parent;
(b) By either Parent or Company, if the Merger shall not have been
consummated on or prior to April 30, 2006 or such other date as Parent and
Company shall agree in writing (the "TERMINATION DATE"); PROVIDED, HOWEVER, that
the right to terminate this Agreement pursuant this SECTION 7.1(b) shall not be
available to any party that has breached in any material respect its obligations
under this Agreement in any manner that shall have caused the failure of the
Merger to be consummated on or before the Termination Date;
(c) By either Parent or Company, if (i) a Law shall have been enacted,
entered or promulgated prohibiting the consummation of the Merger substantially
on the terms contemplated hereby, (ii) an Order shall have been enacted,
entered, promulgated or issued by a Governmental Entity of competent
jurisdiction permanently restraining, enjoining or otherwise prohibiting the
consummation of the Merger substantially on the terms contemplated hereby, and
such Order shall have become final and non-appealable; PROVIDED, HOWEVER, that
the party seeking to terminate this Agreement pursuant to this CLAUSE (ii) shall
have used its reasonable best efforts to remove such Order, or (iii) a
Governmental Entity shall have failed to issue an Order or take any other
action, and such denial of a request to issue such Order or take such other
action shall have become final and non-appealable, that is necessary to fulfill
the condition set forth in SECTION 6.1(c), 6.2(e) or 6.3(d); PROVIDED, HOWEVER,
that the right to terminate this Agreement pursuant to this CLAUSE (iii) shall
not be available to any party whose failure to comply with SECTION 5.4 has been
the cause of such inaction; and PROVIDED FURTHER that the right to terminate
this Agreement pursuant to this SECTION 7.1(c) shall apply only if the Law,
Order or act or omission of the Governmental Entity, as the case may be, shall
have caused the failure of any condition set forth in ARTICLE 6 to be satisfied
and the party hereto entitled to rely on such condition shall not elect to waive
such condition;
39
(d) By either Parent or Company, if the approval of the stockholders of
Company by the Company Requisite Stockholder Vote shall not have been obtained
by reason of the failure to obtain the required vote at a duly held meeting of
stockholders or of any adjournment thereof at which a vote on such approval was
taken; PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant to
this SECTION 7.1(d) shall not be available to Company where any breach of this
Agreement by Company shall have caused the failure to obtain the Company
Requisite Stockholder Vote;
(e) By Parent, if all of the following shall have occurred: (i) Company
shall have breached or failed to perform in any material respect any of its
representations, warranties, covenants or other agreements contained in this
Agreement, (ii) such breach or failure to perform would entitle Parent not to
consummate the Merger under SECTION 6.2(a) or 6.2(b) and (iii) such breach or
failure to perform is incapable of being cured by Company prior to the
Termination Date or, if such breach or failure to perform is capable of being
cured by Company prior to the Termination Date, Company shall not have been
cured such breach or failure to perform within 30 days after receipt of written
notice thereof (but no later than the Termination Date);
(f) By Company, if all of the following shall have occurred: (i) Parent
shall have breached or failed to perform in any material respect any of its
representations, warranties, covenants or other agreements contained in this
Agreement, (ii) such breach or failure to perform would entitle Company not to
consummate the Merger under SECTION 6.3(a) or 6.3(b) and (iii) such breach or
failure to perform is incapable of being cured Parent prior to the Termination
Date or, if such breach or failure to perform is capable of being cured by
Parent prior to the Termination Date, Parent shall not have been cured such
breach or failure to perform within 30 days after receipt of written notice
thereof (but no later than the Termination Date);
(g) By Parent, if Company shall have (i) failed to make the Company
Recommendation or effected a Change in Company Recommendation (or resolved or
publicly proposed to take any such action), whether or not permitted by the
terms of this Agreement or (ii) materially breached its obligations under this
Agreement by reason of a failure to call the Company Stockholders Meeting in
accordance with SECTION 5.2(b) or a failure to prepare and mail to its
stockholders the Proxy Statement in accordance with SECTION 5.2(a);
(h) By Company, if the Board of Directors of Company shall have approved or
recommended, or Company shall have executed or entered into a definitive
agreement with respect to, a Superior Proposal in compliance with SECTION
5.5(a)(II); PROVIDED, HOWEVER, that such termination under this SECTION 7.1(h)
shall not be effective until Company has made the payment required by SECTION
7.2(b); or
(i) By Parent, if any of the following have occurred: (i) Company, any of
its Affiliates or any of the Representatives shall have breached in any material
respect any of the provisions of SECTION 5.5; (ii) the Board of Directors of
Company shall have recommended (or resolved or publicly proposed to recommend)
to Company's stockholders any Acquisition Proposal or Superior Proposal; or
(iii) Company enters into any agreement, letter of intent,
agreement-in-principle, acquisition agreement or other instrument (other than a
confidentiality and standstill agreement as contemplated by SECTION 5.5(a)(I))
contemplating or otherwise relating to any Acquisition Proposal or Superior
Proposal.
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Section 7.2. EFFECT OF TERMINATION.
(a) If this Agreement is terminated pursuant to SECTION 7.1, then this
Agreement (other than as set forth in SECTION 5.13, this SECTION 7.2, SECTION
7.3, SECTION 7.4 and ARTICLE 8, which provisions shall survive such termination)
shall become void and of no effect with no liability on the part of any party
hereto (or of any of its directors, officers, employees, agents, legal or
financial advisors or other representatives); PROVIDED, HOWEVER, no such
termination shall relieve Company from any obligation to pay, if applicable, the
amounts described in SECTIONS 7.2(b) and 7.2(c) and neither Company nor Parent
shall be relieved or released from any liabilities arising out of its willful
and material breach of this Agreement.
(b) If (i) Parent terminates this Agreement pursuant to SECTION 7.1(g) or
7.1(i), (ii) Company terminates this Agreement pursuant to SECTION 7.1(h) or
(iii) Parent or Company terminates this Agreement pursuant to SECTION 7.1(b)
without the Company Stockholders Meeting having occurred, Parent or Company
terminates this Agreement pursuant to SECTION 7.1(d) or Parent terminates this
Agreement pursuant to SECTION 7.1(e) and in the case of any such termination
pursuant to SECTION 7.1(b), 7.1(d) or 7.1(e) (A) at any time after the date of
this Agreement and prior to such termination an Acquisition Proposal shall have
been publicly announced or otherwise publicly communicated to the senior
management, Board of Directors or stockholders of Company and (B) prior to the
date that is twelve months after the effective date of such termination, Company
shall enter into a definitive agreement with respect to an Acquisition Proposal
or an Acquisition Proposal is consummated, then Company shall pay to Parent a
termination fee equal to $76,000,000. Company shall satisfy its obligations
under the preceding sentence by the wire transfer of immediately available funds
to an account that Parent designates (x) in the case of termination pursuant to
CLAUSE (i) or (ii) above, not later than the date of such termination and (y) in
the case of CLAUSE (iii) above, not later than the date on which Company
executes and delivers a definitive agreement with respect to (or, if earlier,
consummates) an Acquisition Proposal (as that term is defined for purposes of
SECTION 7.2(b)(iii)(B)). Notwithstanding any other provision of this Agreement,
if this Agreement is terminated in accordance with its terms, if Company shall
not have breached any of the provisions of SECTION 5.5 in a willful and material
manner and if Company pays the Termination Fee to Parent in accordance with the
terms of this Agreement, then (1) paragraph eight of the Confidentiality
Agreement shall be reinstated (to the extent such paragraph had previously been
deemed to have no further force or effect under the provisions of SECTION 5.13
of this Agreement) and otherwise in full force and effect in accordance with its
original terms, and (2) it shall be a condition to Parent's right to receive the
Termination Fee that Parent shall have affirmed in writing that paragraph eight
of the Confidentiality Agreement is, upon the payment of the Termination Fee, so
reinstated and otherwise in full force and effect in accordance with its
original terms.
(c) Company acknowledges that the agreements contained in SECTION 7.2(b)
are an integral part of the transactions contemplated hereby and that, without
these agreements, Parent and Merger Sub would not enter into this Agreement.
Accordingly, if Company fails to pay the amounts payable under SECTION 7.2(b),
then Company shall pay to Parent and its Subsidiaries all costs and expenses
(including attorneys' fees and expenses) incurred by Parent and its Subsidiaries
in connection with the collection of such overdue amounts and the enforcement by
Parent of its rights under SECTION 7.2(b), together with interest on such
overdue amounts at a rate
41
per annum equal to the "prime rate" (as announced by JPMorgan Chase & Co. or any
successor thereto) in effect on the date on which
such payment was required to be made.
Section 7.3. AMENDMENT. This Agreement may be amended by Parent and Company, by
action taken or authorized by their respective Boards of Directors, at any time
before or after the Company Requisite Stockholder Vote is obtained, PROVIDED
that, after the Company Requisite Stockholder Vote is obtained, no amendment
shall be made that, by Law, requires further approval by the stockholders of any
party hereto without such further approval. This Agreement may not be amended
except by a written instrument signed on behalf of each of the parties hereto.
Section 7.4. WAIVER. At any time before the Effective Time, any party hereto may
(a) extend the time for the performance of any of the obligations or other acts
of the other parties hereto under or pursuant to this Agreement, (b) waive any
inaccuracies in the representations and warranties made by the other parties
hereto in this Agreement or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements made by the other parties hereto, or
any of the conditions benefiting such waiving party contained, in this
Agreement. Any agreement on the part of any party hereto to any such extension
or waiver shall be valid only as against such party and only if set forth in a
written instrument signed on behalf of such party.
ARTICLE 8
MISCELLANEOUS
Section 8.1. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. None of
the representations, warranties, covenants and agreements contained in this
Agreement or in any document delivered pursuant hereto shall survive the
Effective Time, except that the agreements of Parent, Merger Sub and Company
that by their terms apply or are to performed in whole or in part after the
Effective Time and that are contained in SECTION 5.6 and this ARTICLE 8 shall
survive the Effective Time.
Section 8.2. EXPENSES. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement, the Merger and the other
transactions contemplated hereby shall be paid by the party incurring such
expenses, except as otherwise provided in SECTIONS 7.2(b) and 7.2(c).
Section 8.3. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed duly given or made as of the date of receipt if
delivered personally, sent by telecopier or facsimile (and sender shall bear the
burden of proof of delivery), sent by overnight courier (providing proof of
delivery) or sent by registered or certified mail (return receipt requested,
postage prepaid), in each case, to the parties at the following addresses or
facsimile numbers (or at such other address or facsimile number for a party as
shall be specified by like notice):
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If to Company:
York International Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Parent or Merger Sub:
Xxxxxxx Controls, Inc.
0000 Xxxxx Xxxxx Xxx Xxxxxx
P.O. Box 591
Milwaukee, Wisconsin 53201
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Lardner LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Quick
Facsimile: (000) 000-0000
Section 8.4. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
(a) This Agreement and the Confidentiality Agreement constitute the entire
agreement, and supersede all prior understandings, agreements or
representations, by or among the parties hereto with respect to the subject
matter hereof; PROVIDED, HOWEVER, the provisions of this Agreement shall
supersede any conflicting provisions of paragraph eight of the Confidentiality
Agreement.
(b) This Agreement, except for the provisions of SECTION 5.6, shall not
confer any rights or remedies upon any Person other than the parties hereto and
their respective permitted successors and permitted assigns.
43
Section 8.5. ASSIGNMENT; BINDING EFFECT. No party hereto may assign this
Agreement or any of its rights, interests or obligations hereunder (whether by
operation of Law or otherwise) without the prior written approval of the other
parties hereto, and any attempted assignment without such prior written approval
shall be void and without legal effect. Subject to the preceding sentence, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and permitted assigns.
Section 8.6. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
without giving effect to any choice or conflict of law provision or rule. Each
party hereto stipulates that any dispute or disagreement between or among any of
the parties hereto as to the interpretation of any provision of, or the
performance of obligations under, this Agreement shall be commenced and
prosecuted in its entirely in, and consents to the exclusive jurisdiction and
proper venue of, any Delaware state court or any federal court located within
the City of Wilmington, Delaware, and each party hereto consents to personal and
subject matter jurisdiction and venue in such courts and waives and relinquishes
all right to attack the suitability or convenience of such venue or forum by
reason of their present or future domiciles, or by any other reason. The parties
hereto acknowledge that all directions issued by the forum court, including all
injunctions and other decrees, will be binding and enforceable in all
jurisdictions and countries.
Section 8.7. SEVERABILITY. If the term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Law or public policy,
then all other terms and provisions of this Agreement shall nevertheless remain
in full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner so
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
Section 8.8. ENFORCEMENT OF AGREEMENT. The parties hereto agree that money
damages or any other remedy at law would not be a sufficient or adequate remedy
for any actual or threatened breach or violation of, or default under, this
Agreement by any of them and that, in addition to all other available remedies,
each aggrieved party shall be entitled, to the fullest extent permitted by Law,
to an injunction restraining such actual or threatened breach, violation or
default and to any other equitable relief, including specific performance,
without bond or other security being required.
Section 8.9. WAIVER OF JURY TRIAL. Parent and Company hereby irrevocably waive
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
Section 8.10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
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Section 8.11. HEADINGS. The Article and Section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 8.12. INTERPRETATION. Any reference to any supranational, national,
state, provincial, municipal, local or foreign Law shall be deemed also to refer
to all rules and regulations promulgated thereunder, unless the context
otherwise requires. When a reference is made in this Agreement to Sections,
Schedules or Exhibits, such reference shall be to a Section of or Schedule or
Exhibit to this Agreement unless otherwise indicated. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." Notwithstanding
anything to the contrary in this Agreement, each Section of this Agreement is
qualified by the matters set forth with respect to such Section in the
correspondingly numbered Schedule to the Company Disclosure Schedule or the
Parent Disclosure Schedule, as applicable; PROVIDED, HOWEVER, that any fact or
item that is disclosed in any Schedule to the Company Disclosure Schedule or the
Parent Disclosure Schedule, as applicable, shall be deemed disclosed with
respect to the representations and warranties contained in one or more of the
other Sections of ARTICLE 3 or ARTICLE 4 to the extent its relevance to such
other Section(s) is reasonably apparent.
Section 8.13. DEFINITIONS. For purposes of this Agreement,
(a) "ACQUISITION PROPOSAL" shall mean any proposal or offer from any Person
other than Parent or any of its Subsidiaries (in each case, whether or not in
writing and whether or not delivered to the stockholders of Company generally)
relating to (i) any direct or indirect acquisition or purchase of a business of
Company or any of its Subsidiaries that constitute 10% or more of the
consolidated revenues, net income or assets of Company or of 10% or more of any
class of equity securities of Company or any of its Subsidiaries, (ii) any
tender offer or exchange offer that, if consummated, would result in any Person
beneficially owning 10% or more of any class of equity securities of Company,
(iii) any merger, reorganization, share exchange, consolidation, business
combination, sale of substantially all the assets, recapitalization,
liquidation, dissolution or similar transaction involving Company or any of its
Subsidiaries or (iv) any public announcement of a proposal, plan or intention to
do any of the foregoing or any agreement to engage in any of the foregoing
PROVIDED that, for purposes of SECTION 7.2(b)(III)(B), (A) references to "10%"
in CLAUSES (I) or (II) above shall be deemed to be references to "40%" and (B)
CLAUSE (III) above shall be limited to a transaction involving the Company, and
in the case of a merger, reorganization, share exchange or consolidation shall
be limited to a transaction as a result of which Company's stockholders
immediately prior to the transaction do not hold at least 70% of the outstanding
equity interests of the surviving or resulting company immediately after the
transaction.
(b) "AFFILIATES" shall mean, as to any Person, any other Person that,
directly or indirectly, controls, or is controlled by, or is under common
control with, such Person. As used in this definition, "CONTROL" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean the possession, directly or indirectly, of the powers to direct or
cause the direction of management or policies of a Person, through the ownership
of securities or partnership or other ownership interests, by contract or
otherwise.
45
(c) "BUSINESS DAY" shall mean any day on which banks are not required or
authorized to close in the City of New York, New York.
(d) "COMPANY CONTRACT" shall mean each of the following, whether or not set
forth in the Company Disclosure Schedule: (i) each Contract of the type
described in this SECTION 3.16(a); (ii) each Contract that constitutes an
Employee Benefit Plan; and (iii) each Contract that Company has filed, or is
required to file, as an exhibit to a report with the SEC under Item 601 of
Regulation S-K of the SEC and that remains in effect.
(e) "HAZARDOUS SUBSTANCE" shall mean (i) any petroleum, hazardous or toxic
petroleum-derived substance or petroleum product, flammable or explosive
material, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, foundry sand or polychlorinated
biphenyls (PCBs); (ii) any chemical or other material or substance that is
regulated, classified or defined as or included in the definition of "hazardous
substance," "hazardous waste," "hazardous material," "extremely hazardous
substance," "restricted hazardous waste," "toxic substance," "toxic pollutant,"
"pollutant" or "contaminant" under any Environmental Law, or any similar
denomination intended to classify substance by reason of toxicity,
carcinogenicity, ignitability, corrosivity or reactivity under any Environmental
Law; or (iii) any other chemical or other material, waste or substance, exposure
to which is prohibited, limited or regulated by or under any Environmental Law.
(f) "INTELLECTUAL PROPERTY RIGHTS" shall mean rights in the following: (i)
all trademark rights, business identifiers, trade dress, service marks, trade
names and brand names; (ii) all copyrights and all other rights associated
therewith and the underlying works of authorship; (iii) all patents and all
proprietary rights associated therewith; (iv) all inventions, mask works and
mask work registrations, know how, discoveries, improvements, designs, computer
source codes, programs and other software (including all machine readable code,
printed listings of code, documentation and related property and information),
trade secrets, websites, domain names, shop and royalty rights and all other
types of intellectual property; and (v) all registrations of any of the
foregoing and all applications therefor.
(g) "MATERIAL ADVERSE EFFECT" shall mean any change, effect, condition,
factor or circumstance that is materially adverse to the business, results of
operations, properties, financial condition, assets or liabilities of Company or
Parent, as the case may be, and its Subsidiaries taken as a whole; PROVIDED,
HOWEVER, that, a "MATERIAL ADVERSE EFFECT" shall not be deemed to mean or
include any such change, effect, condition, factor or circumstance to the extent
arising as a result of (i) general changes or developments in international or
national economic or political conditions or general changes or developments in
the industries in which Company and its Subsidiaries operate, except, in each
case, to the extent those changes or developments that disproportionately impact
(relative to similarly situated businesses) the business, results of operations,
properties, financial condition, assets or liabilities of Company or Parent, as
the case may be, and its Subsidiaries taken as a whole, (ii) changes, after the
date hereof, in Laws of general applicability or interpretations thereof by
courts or other Governmental Entities, or changes in GAAP or the rules or
policies of the Public Company Accounting Oversight Board or (iii) the
execution, delivery and performance of this Agreement, the announcement by
Parent or any of its Subsidiaries, or the announcement by Company, of its
respective entry into this Agreement and the consummation of the transactions
contemplated hereby.
46
(h) "PERSON" shall mean an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a Governmental Entity.
(i) "REGULATORY LAW" shall mean the Xxxxxxx Act, as amended, the Xxxxxxx
Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the
EC Merger Regulation and all other supranational, national, state, provincial,
municipal, local or foreign Laws, Orders and administrative and judicial
doctrines that are designed or intended to prohibit, restrict or regulate (i)
foreign investment or (ii) actions having the purpose or effect of
monopolization or restraint of trade or lessening of competition.
(j) "SUBSIDIARIES" of any Person shall mean any corporation or other form
of legal entity (i) an amount of the outstanding voting securities of which is
sufficient to elect at least a majority of its board of directors or other
governing body (or, if there are not such voting securities, 50% or more of the
equity interests of which) is owned or controlled, directly or indirectly, by
such Person or by one or more of its Subsidiaries or (ii) with respect to which
such Person or one or more of its Subsidiaries is the general partner or the
managing member or has similar authority, including any corporation or other
legal entity with respect to which such ownership, control, membership or
authority is acquired after the date hereof, but only with respect to such
periods in which such ownership, control, membership or authority is in effect;
provided that, in the case of Company, "SUBSIDIARIES" shall also mean and
include Clima Roca-York S.L. with respect to any period of time after the date
hereof during which such entity meets the definition of a "Subsidiary" as set
forth above.
(k) "SUPERIOR PROPOSAL" shall mean an unsolicited (by Company, any of its
Subsidiaries or any of the Representatives), bona fide, written, fully-financed
or reasonably capable of being fully-financed (which, for the purposes of this
Agreement, shall mean the receipt of a commitment letter from a reputable Person
capable of financing the transaction, subject only to normal and customary
exceptions) proposal made by any Person other than Parent or any of its
Subsidiaries to acquire all of the issued and outstanding shares of Company
Common Stock pursuant to a tender offer or a merger or to acquire all of the
properties and assets of Company on terms and conditions that a majority of the
members of the Board of Directors of Company determines in good faith, after
consultation with a nationally recognized financial advisor and taking into
account all of the terms and conditions of such proposal (including all legal,
financial, regulatory, and other aspects of such proposal, the form of
consideration, the uncertainties associated with the valuation of any
consideration other than cash and the risks associated with the form of
consideration, any expense reimbursement provisions, any termination fees and
the conditions associated with such proposal), is more favorable to Company's
stockholders from a financial point of view than the transactions contemplated
hereby (including, to the extent applicable, any proposal or offer by Parent for
an adjustment to the terms and conditions of this Agreement pursuant to SECTION
5.5(a)) and is reasonably likely to be consummated.
(l) "TAXES" shall mean supranational, national, state, provincial,
municipal, local or foreign taxes, charges, fees, levies, or other assessments,
including all net income, gross income, sales and use, ad valorem, transfer,
gains, profits, excise, franchise, real and personal property, gross receipts,
single business, unincorporated business, value added, capital stock,
production,
47
business and occupation, disability, FICA, employment, payroll, license,
estimated, stamp, custom duties, environmental, severance or withholding taxes,
or any other tax, governmental fee or other like assessment or charge of any
kind whatsoever, imposed by any Governmental Entity, including any interest and
penalties (civil or criminal) on or additions to any such taxes, whether
disputed or not, and shall include any transferee liability in respect of taxes,
any liability in respect of taxes imposed by contract, tax sharing agreement,
tax indemnity agreement or any similar agreement.
(m) "TAX RETURN" shall mean a return, report, estimate, claim for refund or
other information, form or statement relating to, or required to be filed or
supplied in connection with, any Taxes, including, where permitted or required,
combined or consolidated returns for a group of entities and including any
amendment thereof, including any schedule or attachment thereto.
[The next page is the signature page.]
48
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
and Plan of Merger as of the day and year first written above.
XXXXXXX CONTROLS, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: Chairman, Chief Executive Officer
and President
--------------------------------------
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President, Secretary
and General Counsel
--------------------------------------
YJC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Title: President
--------------------------------------
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President and Secretary
--------------------------------------
YORK INTERNATIONAL CORPORATION
By: /s/ C. Xxxxx Xxxxx
--------------------------------------
Title: President and
Chief Executive Officer
--------------------------------------