AGREEMENT AND PLAN OF MERGER by and among COVIDIEN GROUP S.A.R.L., COV DELAWARE CORPORATION, and EV3 INC. June 1, 2010
TABLE OF CONTENTS
Page | ||||||
ARTICLE I THE OFFER | 2 | |||||
Section 1.1 |
The Offer | 2 | ||||
Section 1.2 |
Company Action | 5 | ||||
Section 1.3 |
Directors | 7 | ||||
Section 1.4 |
Top-Up Option | 8 | ||||
ARTICLE II THE MERGER | 10 | |||||
Section 2.1 |
The Merger | 10 | ||||
Section 2.2 |
Closing and Effective Time of the Merger | 11 | ||||
Section 2.3 |
Meeting of Company Stockholders to Approve the Merger | 12 | ||||
Section 2.4 |
Merger Without Meeting of Stockholders | 13 | ||||
ARTICLE III CONVERSION OF SHARES | 13 | |||||
Section 3.1 |
Conversion of Securities | 13 | ||||
Section 3.2 |
Exchange of Certificates and Book Entry Shares | 14 | ||||
Section 3.3 |
Shares of Dissenting Stockholders | 16 | ||||
Section 3.4 |
Company Equity Awards | 16 | ||||
Section 3.5 |
Withholding Tax | 18 | ||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 18 | |||||
Section 4.1 |
Organization | 19 | ||||
Section 4.2 |
Capitalization | 20 | ||||
Section 4.3 |
Authorization; Validity of Agreement; Company Action | 20 | ||||
Section 4.4 |
Consents and Approvals; No Violations | 21 | ||||
Section 4.5 |
SEC Reports; Disclosure Controls and Procedures | 21 | ||||
Section 4.6 |
No Undisclosed Liabilities | 22 | ||||
Section 4.7 |
Absence of Certain Changes | 23 | ||||
Section 4.8 |
Material Contracts | 23 | ||||
Section 4.9 |
Employee Benefit Plans; ERISA | 24 | ||||
Section 4.10 |
Litigation | 27 | ||||
Section 4.11 |
Compliance with Law; Permits | 27 | ||||
Section 4.12 |
Intellectual Property | 27 | ||||
Section 4.13 |
Taxes | 29 | ||||
Section 4.14 |
Tangible Assets | 31 | ||||
Section 4.15 |
Environmental | 31 | ||||
Section 4.16 |
Labor Matters | 33 | ||||
Section 4.17 |
Brokers or Finders | 33 | ||||
Section 4.18 |
Regulatory Compliance | 33 | ||||
Section 4.19 |
Vote Required | 35 | ||||
Section 4.20 |
Company Board Recommendation | 35 |
ii
Page | ||||||
Section 4.21 |
Disclosure Documents | 35 | ||||
Section 4.22 |
Interested Party Transactions | 35 | ||||
Section 4.23 |
Opinion of Financial Advisor | 36 | ||||
Section 4.24 |
Directors and Officers | 36 | ||||
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE PURCHASER | 36 | |||||
Section 5.1 |
Organization | 36 | ||||
Section 5.2 |
Authorization; Validity of Agreement; Necessary Action | 37 | ||||
Section 5.3 |
Consents and Approvals; No Violations | 37 | ||||
Section 5.4 |
Disclosure Documents | 38 | ||||
Section 5.5 |
Operations and Ownership of the Purchaser | 38 | ||||
Section 5.6 |
Financing; Sufficient Funds | 38 | ||||
Section 5.7 |
Share Ownership | 39 | ||||
Section 5.8 |
Vote/Approval Required | 39 | ||||
Section 5.9 |
Investigation by the Parent and the Purchaser | 39 | ||||
Section 5.10 |
Litigation | 40 | ||||
Section 5.11 |
Section 203 of the DGCL | 40 | ||||
Section 5.12 |
Brokers or Finders | 40 | ||||
Section 5.13 |
Other Agreements | 40 | ||||
ARTICLE VI COVENANTS | 40 | |||||
Section 6.1 |
Interim Operations of the Company | 40 | ||||
Section 6.2 |
Access to Information | 43 | ||||
Section 6.3 |
Board Recommendation; Acquisition Proposals | 44 | ||||
Section 6.4 |
Employee Benefits | 47 | ||||
Section 6.5 |
Publicity | 48 | ||||
Section 6.6 |
Directors’ and Officers’ Insurance and Indemnification | 49 | ||||
Section 6.7 |
Takeover Statutes | 50 | ||||
Section 6.8 |
Reasonable Best Efforts | 50 | ||||
Section 6.9 |
Financing | 52 | ||||
Section 6.10 |
Section 16 Matters | 53 | ||||
Section 6.11 |
Tax Matters | 53 | ||||
Section 6.12 |
Obligations of the Purchaser | 53 | ||||
Section 6.13 |
Further Assurances | 53 | ||||
Section 6.14 |
Delisting | 54 | ||||
Section 6.15 |
401(k) | 54 | ||||
Section 6.16 |
FIRPTA Certificate | 54 | ||||
Section 6.17 |
Rule 14d-10 Matters | 54 | ||||
Section 6.18 |
No Control of Other Party’s Business | 55 | ||||
Section 6.19 |
Operations of the Purchaser | 55 | ||||
Section 6.20 |
Ownership of Shares | 55 |
iii
Page | ||||||
ARTICLE VII CONDITIONS | 55 | |||||
Section 7.1 |
Conditions to Each Party’s Obligation to Effect the Merger | 55 | ||||
Section 7.2 |
Frustration of Closing Conditions | 56 | ||||
ARTICLE VIII TERMINATION | 56 | |||||
Section 8.1 |
Termination | 56 | ||||
Section 8.2 |
Effect of Termination | 57 | ||||
ARTICLE IX MISCELLANEOUS | 59 | |||||
Section 9.1 |
Amendment and Modification | 59 | ||||
Section 9.2 |
Non-Survival of Representations and Warranties | 59 | ||||
Section 9.3 |
Notices | 59 | ||||
Section 9.4 |
Interpretation | 60 | ||||
Section 9.5 |
Counterparts | 61 | ||||
Section 9.6 |
Entire Agreement; Third-Party Beneficiaries | 61 | ||||
Section 9.7 |
Severability | 61 | ||||
Section 9.8 |
Governing Law | 61 | ||||
Section 9.9 |
Jurisdiction | 61 | ||||
Section 9.10 |
Service of Process | 62 | ||||
Section 9.11 |
Specific Performance | 62 | ||||
Section 9.12 |
Assignment | 62 | ||||
Section 9.13 |
Expenses | 63 | ||||
Section 9.14 |
Headings | 63 | ||||
Section 9.15 |
Currency | 63 | ||||
Section 9.16 |
Construction; Interpretation | 63 | ||||
Section 9.17 |
Waivers | 64 | ||||
Section 9.18 |
WAIVER OF JURY TRIAL | 64 | ||||
Section 9.19 |
Financing Sources Arrangements | 64 |
iv
LIST OF DEFINED TERMS
—A— |
||||
Acquisition Proposal |
47 | |||
Affiliates |
7 | |||
Agreement |
1 | |||
Agreement Date |
1 | |||
Alternative Acquisition Agreement |
47 | |||
Alternative Financing |
53 | |||
Antitrust Laws |
51 | |||
Assignee |
63 | |||
—B— |
||||
Balance Sheet Date |
22 | |||
Bank |
52 | |||
Benefit Plans |
24 | |||
Book Entry Shares |
14 | |||
Business Day |
2 | |||
—C— |
||||
CERCLA |
32 | |||
Certificate of Merger |
12 | |||
Certificates |
14 | |||
Change of Recommendation |
46 | |||
Chestnut Merger Agreement |
10 | |||
CIFSA |
38 | |||
Closing |
11 | |||
Closing Date |
11 | |||
Company |
1 | |||
Company Board |
1 | |||
Company Board Recommendation |
1 | |||
Company Bylaws |
19 | |||
Company Charter |
19 | |||
Company Common Stock |
1 | |||
Company Disclosure Documents |
20 | |||
Company Disclosure Schedule |
19 | |||
Company Equity Plans |
18 | |||
Company Material Adverse Effect |
19 | |||
Company Restricted Stock |
18 | |||
Company RSUs |
18 | |||
Company SEC Reports |
21 | |||
Company Stock Option |
18 | |||
Company Stockholder Approval |
35 | |||
Company Stockholders |
1 | |||
Company’s Knowledge |
24 | |||
Confidentiality Agreement |
44 | |||
Consideration Fund |
14 | |||
Continuing Director |
7 |
v
Continuing Employees |
47 | |||
Contract |
21 | |||
—D— |
||||
Debt Financing Letter |
38 | |||
Delisting Period |
54 | |||
DGCL |
10 | |||
Dissenting Shares |
16 | |||
—E— |
||||
Effective Time |
12 | |||
End Date |
56 | |||
Environmental Laws |
32 | |||
ERISA |
24 | |||
ERISA Affiliate |
25 | |||
ESPP |
18 | |||
Exchange Act |
2 | |||
Expiration Date |
3 | |||
—F— |
||||
FDCA |
33 | |||
Financing |
38 | |||
Financing Sources |
61 | |||
Fully Diluted Basis |
3 | |||
—G— |
||||
GAAP |
22, 30 | |||
Good Manufacturing Practices |
33 | |||
Governmental Entity |
21 | |||
—H— |
||||
XXX Xxx |
00 | |||
—I— |
||||
Indemnified Parties |
49 | |||
Initial Expiration Date |
3 | |||
Insured Parties |
49 | |||
Intellectual Property |
28 | |||
IRS |
25 | |||
—K— |
||||
Knowledge of the Company |
24 | |||
Knowledge of the Parent |
40 | |||
—L— |
||||
Law |
2 | |||
License-In Contracts |
28 | |||
License-Out Contracts |
28 | |||
Loan Agreement |
52 | |||
—M— |
||||
Material Contract |
24 | |||
Maximum Premium |
49 | |||
MDD |
33 | |||
Medical Device |
34 |
vi
Merger |
1 | |||
Merger Consideration |
13 | |||
Minimum Condition |
2 | |||
—N— |
||||
Notice Period |
46 | |||
—O— |
||||
Offer |
1 | |||
Offer Documents |
5 | |||
Offer Price |
1 | |||
Offer to Purchase |
3 | |||
Offering |
17 | |||
Option Amount |
17 | |||
Order |
28 | |||
—P— |
||||
Parent |
1 | |||
Parent Disclosure Schedule |
36 | |||
Parent Material Adverse Effect |
36 | |||
Parent’s Knowledge |
40 | |||
Paying Agent |
14 | |||
Permits |
27 | |||
Person |
15 | |||
Post-Closing SEC Reports |
54 | |||
Prohibited Payment |
27 | |||
Proxy Statement |
12 | |||
Purchaser |
1 | |||
—Q— |
||||
Qualifying Transaction |
59 | |||
—R— |
||||
Real Property |
31 | |||
Representatives |
43 | |||
—S— |
||||
Schedule 14D-9 |
6 | |||
Schedule TO |
4 | |||
SEC |
3 | |||
Section 409A |
26 | |||
Securities Act |
10 | |||
Securities Exchange Rule |
3 | |||
Share Acceptance Time |
2 | |||
Shares |
1 | |||
Short Form Threshold |
13 | |||
Special Meeting |
12 | |||
Subsequent Offering Period |
4 | |||
Subsidiary |
20 | |||
Superior Proposal |
47 | |||
Surviving Corporation |
10 |
vii
—T— |
||||
Tax |
30 | |||
Tax Return |
31 | |||
Taxes |
30 | |||
Taxing Authorities |
29 | |||
Tender and Voting Agreement |
2 | |||
Termination Fee |
58 | |||
Top-Up Option |
8 | |||
Top-Up Option Shares |
8 | |||
Transactions |
1 |
viii
This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of June 1, 2010 (the
“Agreement Date”), is by and among ev3 Inc., a Delaware corporation (the
“Company”), Covidien Group S.a.r.l., a Luxembourg company (the “Parent”), and COV
Delaware Corporation, a Delaware corporation and wholly owned subsidiary of the Parent (the
“Purchaser”).
A. The respective Boards of Directors of the Parent, the Purchaser and the Company have
approved the acquisition of the Company by the Parent upon the terms and subject to the conditions
set forth in this Agreement.
B. In furtherance of such acquisition, (i) Parent has agreed to cause the Purchaser to
commence a tender offer (such offer, as amended from time to time as permitted by this Agreement,
the “Offer”) to purchase all of the shares (the “Shares”) of common stock, par
value $0.01 per share, of the Company (the “Company Common Stock”) that are outstanding, at
a price of $22.50 per Share, paid to the seller in cash, without interest thereon (such amount or
any higher amount per Share that may be paid pursuant to the Offer, the “Offer Price”) and
(ii) the Company has granted to the Purchaser the Top-Up Option.
C. Following the consummation of the Offer upon the terms and subject to the conditions set
forth in this Agreement, Parent shall cause the Purchaser to be merged with and into the Company,
with the Company continuing as the surviving corporation (the “Merger”), and each Share
that is not tendered and accepted pursuant to the Offer, other than Shares cancelled pursuant to
Section 3.1(b) and Dissenting Shares, shall thereupon be cancelled and converted into the
right to receive cash in an amount equal to the Offer Price, on the terms and subject to the
conditions set forth in this Agreement.
D. The Board of Directors of the Company (the “Company Board”) has, upon the terms and
subject to the conditions set forth herein, (i) determined that the Offer, the Merger and the other
transactions contemplated by this Agreement (the “Transactions”), are fair to and in the
best interests of the Company and its stockholders, (ii) approved and declared advisable this
Agreement, the Offer and the Merger, and (iii) subject to the other terms and conditions of this
Agreement, resolved to recommend that all holders of Shares (the “Company Stockholders”)
tender their Shares pursuant to the Offer and, if required by applicable Law, adopt this Agreement
and approve the Merger (the “Company Board Recommendation”).
E. The respective boards of directors of the Parent and the Purchaser have approved this
Agreement and the transactions contemplated hereby, including the Offer and the Merger, and have
declared it advisable for the Parent and the Purchaser, respectively, to enter into this Agreement.
F. Concurrently with the execution and delivery of this Agreement, and as a condition and
inducement to the Parent entering into this Agreement, certain Company Stockholders have entered
into a tender and voting agreement, dated as of the Agreement, in substantially the form set forth
in Annex II hereof, pursuant to which, among other things, each
1
of such Company
Stockholders has agreed to tender his, her or its Shares to the Purchaser in the Offer (the
“Tender and Voting Agreement”).
G. The Parent, the Purchaser and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the Offer and the Merger and also to
prescribe various conditions to the Offer and the Merger.
Accordingly, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements contained in this Agreement and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement, intending
to be legally bound, agree as follows:
ARTICLE I
THE OFFER
THE OFFER
Section 1.1 The Offer.
(a) Commencement of the Offer. Provided that this Agreement shall not have been
terminated in accordance with Section 8.1, as promptly as practicable after the Agreement
Date (but in no event later than ten (10) Business Days after the date of the initial public
announcement of this Agreement), the Purchaser shall, and the Parent shall cause the Purchaser to,
commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (the “Exchange Act”)), the Offer to
purchase all of the Shares at the Offer Price. For purposes of this Agreement, “Business
Day” means a day other than a Saturday, a Sunday or another day on which commercial banking
institutions in New York, New York are authorized or required by Law to be closed.
(b) Terms and Conditions of Offer. Subject to (i) there being validly tendered in the
Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, together
with the number of Shares, if any, then owned of record by the Parent or the Purchaser or their
respective wholly owned Subsidiaries or with respect to which the Parent or the Purchaser has,
directly or indirectly, voting power, representing at least a majority of all outstanding Shares
(determined on a Fully Diluted Basis) entitled to vote (x) in the election of directors or (y) upon
the adoption of this Agreement and approval of the Merger, on the date Shares are accepted for
payment (collectively, the “Minimum Condition”); and (ii) the satisfaction or waiver by the
Parent or the Purchaser of the other conditions and requirements set forth in Annex I, the
Purchaser shall, and the Parent shall cause the Purchaser to, accept for payment and pay for all
Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable
after the Purchaser is legally permitted to do so under applicable federal, state, local, or
foreign law, statute, rule, regulation, final and enforceable ordinance or Order of any
Governmental Entity (“Law”) (the date and time of acceptance for payment, the “Share
Acceptance Time”). The Parent shall provide or cause to be provided to the Purchaser on a
timely basis funds sufficient to purchase and pay for any and all Shares that the Purchaser becomes
obligated to accept for payment and purchase pursuant to the Offer. The Offer Price payable in
respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be
paid net to the holder of such Share in cash, without interest, subject to any
2
withholding of any
Taxes required by applicable Law in accordance with Section 3.5. For purposes of this
Agreement, “Fully Diluted Basis” means, as of any date, (i) the number of Shares
outstanding plus (ii) the number of Shares the Company is then required to issue pursuant to
options, warrants, rights to acquire or other obligations outstanding at such date, other
securities convertible or exchangeable into or exercisable for Shares or otherwise, including
pursuant to the Company Equity Plans, but excluding any (x) Shares attributable to the unexercised
portion of the Top-Up Option and (y) any options, warrants and other rights to acquire Shares that
are not vested as of the date of purchase and would not be vested immediately after giving effect
to the consummation of the Offer or prior to the End Date.
(c) Offer to Purchase; Waiver of Conditions. The Offer shall be made by means of an
offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the
Offer in accordance with this Agreement, including the conditions and requirements set forth in
Annex I. The Parent and the Purchaser expressly reserve the right (but shall not be
obligated) to increase the Offer Price, waive any condition to the Offer (except the Minimum
Condition) or to make any other changes in the terms and conditions of the Offer; provided,
however, that unless previously approved by the Company in writing, the Purchaser shall not (i)
decrease the Offer Price payable in the Offer, (ii) change the form of consideration payable in the
Offer, (iii) reduce the number of Shares sought to be purchased in the Offer, (iv) impose any
condition to the Offer in addition to the conditions to the Offer set forth in Annex I, (v)
amend or waive the Minimum Condition, (vi) amend or modify the other conditions set forth in
Annex I in a manner adverse to the holders of Shares or that would, individually or in the
aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or
prevent, materially delay or impair the ability of the Parent or the Purchaser to consummate the
Offer, (vii) extend the Expiration Date other than in accordance with this Agreement, or (viii)
otherwise amend any other term of the Offer in a manner adverse to the holders of Shares.
(d) Expiration of Offer. Subject to the terms and conditions of this Agreement,
unless extended in accordance with the terms of this Agreement, the Offer shall expire on the 20th
or 21st Business Day (calculated in accordance with Rule 14d-1(g)(3) and 14d-2 under the Exchange
Act) following the commencement of the Offer (the “Initial Expiration Date”) or, if the
Offer has been extended in accordance with this Agreement, at the time and date to which the Offer
has been so extended (the Initial Expiration Date, or such later time and date to which the Offer
has been extended in accordance with this Agreement, the “Expiration Date”).
(e) Extension of Offer. Notwithstanding the foregoing or anything to the contrary set
forth in this Agreement, (i) the Purchaser shall extend the Offer for any period or periods
required by (x) applicable Law, (y) applicable rules, regulations, interpretations or positions of
the United States Securities and Exchange Commission (the “SEC”) or its staff or (z) any of
the rules and regulations, including listing standards, of the Nasdaq Global
Market or other United States national securities exchange registered under the Exchange Act
on which the applicable common stock is then traded (the “Securities Exchange Rule”), (ii)
in the event that any of the conditions to the Offer set forth on Annex I hereto are not
satisfied or waived as of any then scheduled Expiration Date, the Purchaser may extend the Offer
for successive extension periods of not more than ten (10) Business Days each in order to permit
the satisfaction of the conditions to the Offer, and (iii) in the event that any of the conditions
to the Offer set forth
3
on Annex I hereto are not satisfied or waived as of any then
scheduled Expiration Date and there has not been a Change of Recommendation, the Company may, by
written notice at least two (2) Business Days prior to such scheduled Expiration Date, request that
the Purchaser extend the Offer for up to two (2) successive periods of ten (10) Business Days per
extension period, until all of the conditions to the Offer set forth on Annex I hereto are
satisfied or, to the extent permitted, validly waived; provided, however, that notwithstanding the
foregoing clause (i) of this Section 1.1(e), in no event shall the Purchaser be required to
extend the Offer beyond the earlier to occur of (1) the date this Agreement is terminated pursuant
to Section 8.1 hereof or (2) the End Date; and provided, further, that the foregoing clause
(i) of this Section 1.1(e) shall not be deemed to impair, limit or otherwise restrict in
any manner the right of the Parent to terminate this Agreement pursuant to Section 8.1
hereof. The Purchaser shall not and the Parent agrees that it shall cause the Purchaser not to
terminate or withdraw the Offer other than in connection with termination of this Agreement
pursuant to Section 8.1.
(f) Subsequent Offering Period. If necessary to obtain sufficient Shares to reach the
Short Form Threshold (without regard to Shares tendered pursuant to guaranteed delivery procedures
that have not yet been delivered in settlement or satisfaction of such guarantee), the Purchaser
may, in its sole discretion, provide for a subsequent offering period (and one or more extensions
thereof) in accordance with Rule 14d-11 under the Exchange Act (each a “Subsequent Offering
Period”); provided, however, that if the Purchaser is required to exercise the Top-Up Option
pursuant to Section 1.4(a), the Purchaser shall not be permitted to provide for a
Subsequent Offering Period. Subject to the terms and conditions of this Agreement and the Offer,
the Purchaser shall, and the Parent shall cause the Purchaser to, immediately accept for payment,
and pay for, all Shares that are validly tendered pursuant to the Offer during such Subsequent
Offering Period. The Offer Documents shall provide for the possibility of a Subsequent Offering
Period in a manner consistent with the terms of this Section 1.1(f).
(g) Termination of Offer. The Purchaser shall not terminate the Offer prior to any
scheduled Expiration Date without the prior written consent of the Company, except if this
Agreement is terminated pursuant to Section 8.1. If this Agreement is terminated pursuant
to Section 8.1, the Purchaser shall, and the Parent shall cause the Purchaser to, promptly
terminate the Offer and shall not acquire the Shares pursuant thereto. If the Offer is terminated
by the Purchaser, or this Agreement is terminated pursuant to Section 8.1 prior to the
acquisition of Shares in the Offer, the Purchaser shall promptly (and in any event within two (2)
Business Days of such termination) return, or cause any depositary acting on behalf of the
Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been
purchased in the Offer to the registered holders thereof.
(h) Schedule TO; Offer Documents. On the date the Offer is commenced (within the
meaning of Rule 14d-2 under the Exchange Act), the Parent and the Purchaser shall file with the
SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO
with respect to the Offer (together with all amendments, supplements and exhibits thereto, the
“Schedule TO”). The Schedule TO shall include, as exhibits: the Offer to Purchase, a form
of letter of transmittal, the notice of guaranteed delivery, a form of summary advertisement and
other ancillary Offer documents and instruments required by the Exchange Act or other applicable
Law pursuant to which the Offer shall be made, including any schedule or form filed pursuant to
Chapter 80B of the Minnesota Statutes
4
(collectively, together with any amendments and supplements
thereto, the “Offer Documents”). Subject to Section 6.3, the Company hereby
consents to the inclusion in the Offer Documents of the Company Board Recommendation. The Parent
and Purchaser shall file with the Commissioner of Commerce of the State of Minnesota any
registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the
Minnesota Statutes and shall disseminate the Offer Documents, including any such registration
statement required by Chapter 80B of the Minnesota Statutes, to the holders of the Shares as and to
the extent required by, and within the time period required by, Chapter 80B of the Minnesota
Statutes. The Parent and the Purchaser shall cause the Schedule TO and the Offer Documents to
comply in all material respects with the requirement of applicable United States federal securities
Laws and, on the date first filed with the SEC and on the date first published, sent or given to
holders of Shares, not to contain any untrue statement of 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, except no covenant is
made by the Parent or the Purchaser with respect to information supplied by the Company in writing
specifically for inclusion or incorporation by reference in the Schedule TO or Offer Documents.
The Parent and the Purchaser, on the one hand, and the Company, on the other hand, shall promptly
correct any information provided by such party for use in the Offer Documents, if and to the extent
that such information shall have become false or misleading in any material respect or as otherwise
required by applicable Law, and the Parent and the Purchaser agree to cause the Offer Documents, as
so corrected, to be filed with the SEC and disseminated to Company Stockholders, in each case as
and to the extent required by the Exchange Act. The Company and its counsel shall be given a
reasonable opportunity to review the Schedule TO and the Offer Documents before they are filed with
the SEC, the Parent and the Purchaser shall give due consideration to the reasonable additions,
deletions or changes suggested thereto by the Company and its counsel. In addition, the Parent and
the Purchaser shall provide the Company and its counsel with copies of any written comments, and
shall inform them of any oral comments, that the Parent, the Purchaser or their counsel may receive
from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents
promptly after receipt of such comments, and any written or oral responses thereto. The Company
and its counsel shall be given a reasonable opportunity to review any such written responses and
the Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or
changes suggested thereto by the Company and its counsel.
(i) Certain Adjustments. The Offer Price shall be adjusted appropriately to reflect
any reclassification, recapitalization, stock split (including a reverse stock split), or
combination, exchange or readjustment of shares, or any stock dividend or stock distribution
occurring (or for which a record date is established) after the Agreement Date and
prior to the payment by the Purchaser for Shares validly tendered and not properly withdrawn
in connection with the Offer.
Section 1.2 Company Action.
(a) Schedule 14D-9. On the date the Offer Documents are filed with the SEC the
Company shall, in a manner that complies with Rule 14d-9 under the Exchange Act, file a Tender
Offer Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with respect to the
Offer (together with all amendments, supplements and exhibits thereto, the
5
“Schedule
14D-9”) that shall, subject to the provisions of Section 6.3(e), contain the Company
Board Recommendation. The Schedule 14D-9 will comply in all material respects with the applicable
provisions of the Exchange Act and Delaware corporation Law. The Company shall cause the Schedule
14D-9 to comply in all material respects with the requirements of the applicable United States
federal securities Laws and Delaware corporation Law and, on the date first filed with the SEC and
on the date first published, sent or given to holders of the Shares, not to contain any untrue
statement of material fact or omit to state any material fact required to be stated therein, in
light of the circumstances under which they were made, not misleading, except no covenant is made
by the Company with respect to any information supplied by the Parent or the Purchaser in writing
specifically for inclusion or incorporation by reference in the Schedule 14D-9. The Company agrees
to cause the Schedule 14D-9 to be disseminated to the Company Stockholders. The Company, on the
one hand, and the Parent and the Purchaser, on the other hand, agree to promptly correct any
information provided by such party for use in the Schedule 14D-9, if and to the extent that such
information shall have become false or misleading in any material respect or as otherwise required
by applicable Law, and the Company agrees to cause the Schedule 14D-9, as so corrected, to be filed
with the SEC and disseminated to the Company Stockholders, in each case as and to the extent
required by the Exchange Act. The Parent, the Purchaser and their counsel shall be given a
reasonable opportunity to review the Schedule 14D-9 before it is filed with the SEC, and the
Company shall give due consideration to the reasonable additions, deletions or changes suggested
thereto by the Parent, the Purchaser and their counsel. In addition, the Company shall provide the
Parent, the Purchaser and their counsel with copies of any written comments, and shall inform them
of any oral comments, that the Company or its counsel may receive from time to time from the SEC or
its staff with respect to the Schedule 14D-9 promptly after receipt of such comments, and any
written or oral responses thereto. The Parent, the Purchaser and their counsel shall be given a
reasonable opportunity to review any such written responses and the Company shall give due
consideration to the reasonable additions, deletions or changes suggested thereto by the Parent,
the Purchaser and their counsel. After the commencement of the Offer, the Company will not
publish, send, or give to Company Stockholders supplemental or revised materials without the
Parent’s prior written consent, except as (i) as may be required by Law or (ii) as contemplated or
permitted by Section 6.3.
(b) Communication Materials. Promptly after the Agreement Date (and in any event in
sufficient time to permit the Purchaser to commence the Offer in a timely manner) and otherwise
from time to time as requested by the Purchaser or its agents, the Company shall furnish or cause
to be furnished to the Purchaser mailing labels, security position listings, non-objecting
beneficial owner lists and any other listings or computer files containing the names and addresses
of the record or beneficial owners of the Shares as of the most recent
practicable date, and shall promptly furnish the Purchaser with such information (including
updated lists of holders of the Shares and their addresses, mailing labels, security position
listings and non-objecting beneficial owner lists) and such other assistance as the Purchaser or
its agents may reasonably request in communicating with the record and beneficial owners of Shares,
in connection with the preparation and dissemination of the Schedule TO and the Offer Documents and
the solicitation of tenders of Shares in the Offer.
6
Section 1.3 Directors.
(a) Designation of Directors by Parent. Effective upon the Share Acceptance Time and
from time to time thereafter so long as the Parent directly or indirectly beneficially owns not
less than a majority of the issued and outstanding Shares, the Parent shall be entitled to
designate up to such number of directors, rounded up to the next whole number, on the Company Board
as is equal to the product of (i) the total number of directors on the Company Board (giving effect
to the election or appointment of any additional directors pursuant to this Section 1.3)
and (ii) the percentage that the number of Shares beneficially owned by the Parent and/or the
Purchaser (including Shares accepted for payment in the Offer and the purchased Top-Up Option
Shares, if any) bears to the total number of Shares outstanding, and the Company shall, upon
request by the Purchaser, promptly increase the size of the Company Board or use its reasonable
best efforts to secure the resignations of such number of directors as is necessary to provide the
Purchaser with such level of representation and shall cause the Purchaser’s designees to be so
elected or appointed. Subject to subsection (c) of this Section 1.3, after the Share
Acceptance Time the Company shall also cause individuals designated by the Purchaser to constitute
the same percentage as such individuals represent of the entire Company Board on the following:
(i) each committee of the Company Board (other than any committee of the Company Board comprised
solely of Continuing Directors established to take action under this Agreement); (ii) each board of
directors and each committee thereof of each wholly owned Subsidiary of the Company and (iii) the
designees, appointees or other similar representatives of the Company on each board of directors
(or other similar governing body) and each committee thereof of each non-wholly owned Subsidiary.
The Company’s obligations to appoint designees to the Company Board shall be subject to Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder as well as the Securities Exchange
Rules. At the request of the Purchaser, the Company shall take all actions necessary to effect any
such election or appointment of the Purchaser’s designees, including mailing to the Company
Stockholders the information required by Section 14(f) of the Exchange Act and Rule 14f-l
promulgated thereunder which, unless the Purchaser otherwise elects, shall be so mailed together
with the Schedule 14D-9; provided, that the Parent and the Purchaser shall have timely supplied to
the Company all information with respect to themselves and their respective officers, directors and
Affiliates (as defined in Rule 12b-2 of the Exchange Act (the “Affiliates”)) required by
such Section and Rule.
(b) Continuing Directors. Following the election or appointment of the Parent’s
designees to the Company Board pursuant to Section 1.3(a) and until the Effective Time, the
Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use
their reasonable best efforts to cause the Company Board to at all times include, at least three
(3) Continuing Directors and each committee of the Company Board and the board of directors (or
similar body) of each Subsidiary of the Company shall at all times
include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts
to cause each committee of the Company Board and the board of directors (or similar body) of each
Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A
“Continuing Director” shall mean a person who is a member of the Company Board as of the
Agreement Date or a person selected by the Continuing Directors then in office, each of whom shall
be an independent director for purposes of applicable Securities Exchange Rules and shall be
eligible to serve on the Company’s audit committee under the Exchange Act and Securities
7
Exchange
Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item
407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of
Continuing Directors is reduced to less than three (3) prior to the Effective Time, any remaining
Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be
entitled to designate a person who is not an officer, director, stockholder or designee of Parent
or any of its Affiliates to fill such vacancy, and such person shall be deemed to be a Continuing
Director for all purposes of this Agreement, or, if no Continuing Directors then remain, the other
directors shall designate three (3) persons who are not officers, directors, stockholders or
designees of Parent or any of its Affiliates to fill such vacancies, and such persons shall be
deemed to be Continuing Directors for all purposes of this Agreement.
(c) Required Approvals of Continuing Directors. Notwithstanding anything to the
contrary set forth in this Agreement, in the event that the Parent’s designees are elected or
appointed to the Company Board prior to the Effective Time pursuant to Section 1.3(a), the
approval of a majority of such Continuing Directors (or the sole Continuing Director if there shall
be only one (1) Continuing Director) shall be required in order to (i) amend, modify or terminate
this Agreement, or agree or consent to any amendment, modification or termination of this
Agreement, in any case on behalf of the Company, (ii) extend the time for performance of, or waive,
any of the obligations or other acts of the Parent or the Purchaser under this Agreement, (iii)
waive or exercise any of the Company’s rights under this Agreement, (iv) waive any condition to the
Company’s obligations under this Agreement, (v) amend the Company Charter or Company Bylaws, (vi)
authorize any agreement between the Company or any of the Subsidiaries of the Company, on the one
hand, and the Parent, the Purchaser or any of their Affiliates, on the other hand, or (vii) make
any other determination with respect to any action to be taken or not to be taken by or on behalf
of the Company relating to this Agreement or the Transactions. For purposes of considering any
matter set forth in this Section 1.3(c), the Continuing Directors shall be permitted to
meet without the presence of the other directors. The Continuing Directors shall have the
authority to retain such counsel (which may include current counsel to the Company) and other
advisors at the expense of the Company as determined by the Continuing Directors and shall have the
authority to institute any action on behalf of the Company to enforce performance of this Agreement
or any of the Company’s rights hereunder.
Section 1.4 Top-Up Option.
(a) Grant and Availability of Top-Up Option. Subject to the terms and conditions set
forth herein, the Company hereby grants to the Purchaser an irrevocable option (the “Top-Up
Option”) to purchase, at a price per share equal to the Offer Price, that number of newly
issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when
added to the number of Shares
owned by the Purchaser, the Parent and their wholly owned Subsidiaries at the time of exercise
of the Top-Up Option (including all Shares validly tendered and not properly withdrawn in the Offer
at the Share Acceptance Time but excluding Shares tendered pursuant to guaranteed delivery
procedures that have not yet been delivered in settlement or satisfaction of such guarantee),
constitutes one Share more than 90% of all outstanding Shares (assuming the issuance of the Top-Up
Option Shares). The Top-Up Option shall only be exercised one time by the Purchaser in whole but
not in part. The Top-Up Option shall be exercised by the Purchaser (and the Parent shall cause the
Purchaser to exercise the Top-Up Option) promptly (but in no event later than one (1) Business Day)
after the Share
8
Acceptance Time or the expiration of a Subsequent Offering Period, as applicable,
if (i) at the Share Acceptance Time or the expiration of any such Subsequent Offering Period, as
applicable, the Parent, the Purchaser or any wholly owned Subsidiary own in the aggregate at least
75% of all Shares then outstanding (excluding Shares tendered pursuant to guaranteed delivery
procedures that have not yet been delivered in settlement or satisfaction of such guarantee) and
(ii) after giving effect to the exercise of the Top-Up Option, the Parent, the Purchaser and any
wholly owned Subsidiary of the Parent or the Purchaser would own in the aggregate one share more
than 90% of the number of outstanding Shares (after giving effect to the issuance of the Top-Up
Option Shares but excluding Shares tendered pursuant to guaranteed delivery procedures that have
not yet been delivered in settlement or satisfaction of such guarantee); provided, however, that
the obligation of the Purchaser to exercise the Top-Up Option and the obligation of the Company to
deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions,
unless waived by the Company, that (x) no provision of any applicable Law and no applicable order,
injunction or other judgment shall prohibit the exercise of the Top-Up Option or the delivery of
the Top-Up Option Shares in respect of such exercise, (y) upon exercise of the Top-Up Option, the
number of Shares owned by the Parent or the Purchaser or any wholly owned Subsidiary of the Parent
or the Purchaser (excluding Shares tendered pursuant to guaranteed delivery procedures that have
not yet been delivered in settlement or satisfaction of such guarantee) constitutes one Share more
than 90% of the number of Shares that will be outstanding immediately after the issuance of the
Top-Up Option Shares, and (z) the number of Top-Up Option Shares issued pursuant to the Top-Up
Option shall in no event exceed the number of authorized and unissued shares of Company Common
Stock less the maximum number of shares of Company Common Stock potentially necessary for issuance
with respect to all outstanding Company Stock Options, Company Restricted Stock, Company RSUs or
other obligations of the Company. The parties shall cooperate to ensure that the issuance of the
Top-Up Option Shares is accomplished consistent with all applicable Laws, including compliance with
an applicable exemption from registration of the Top-Up Option Shares under the Securities Act;
provided, further, that the Top-Up Option shall terminate concurrently with the termination of this
Agreement.
(b) Exercise of Top-Up Option. Upon the exercise of the Top-Up Option in accordance
with Section 1.4(a), the Parent shall so notify the Company and shall set forth in such
notice (i) the number of Shares that are expected to be owned by the Parent, the Purchaser or any
wholly owned Subsidiary of the Parent or the Purchaser immediately preceding the purchase of the
Top-Up Option Shares and (ii) a place and time for the closing of the purchase of the Top-Up Option
Shares (which, subject to applicable Law and any required regulatory approvals, shall be effected
as promptly as practicable and not more than two (2) Business Days after date such notice is
delivered to the Company). Such notice shall also include an undertaking signed by the Parent and
the Purchaser that, as promptly as practicable
following such exercise of the Top-Up Option, the Purchaser shall, and the Parent shall cause
the Purchaser to, as promptly as practicable after such exercise and the delivery by the Company of
the Top-Up Option Shares, consummate the Merger in accordance with the terms hereof. The Company
shall, as soon as practicable following receipt of such notice, notify the Parent and the Purchaser
of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of
the purchase of the Top-Up Option Shares, the Parent or the Purchaser, as the case may be, shall
pay the Company the aggregate price required to be paid for the Top-Up Option Shares, and the
Company shall cause to be issued to the Parent or the Purchaser, as
9
applicable, a certificate
representing the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option
Shares may be paid by the Parent or the Purchaser (i) in cash or (ii) by executing and delivering
to the Company a promissory note having a principal amount equal to the balance of the aggregate
purchase price for the Top-Up Option Shares, or some combination thereof. Any such promissory note
shall be on terms as provided by the Parent or the Purchaser, which terms shall be reasonably
satisfactory to the Company. Upon the delivery of the appropriate exercise notice and the tender
of the consideration described above, the Purchaser shall, to the extent permitted by applicable
Law, be deemed to be the holder of record of the Top-Up Option Shares issuable upon that exercise,
notwithstanding that certificates representing those Top-Up Option Shares shall not then be
actually delivered to the Purchaser or the Company shall have failed to refused to designate the
account described above.
(c) Accredited Investor Status. The parties shall cooperate to ensure that the
issuance of the Top-Up Option Shares is accomplished consistent with all applicable Law.
Consistent therewith, the Parent and the Purchaser acknowledge that the Top-Up Option Shares that
the Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the
Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance
upon an exemption thereunder for transactions not involving a public offering. Each of the Parent
and the Purchaser hereby represents and warrants to the Company that the Purchaser will be upon the
purchase of the Top-Up Option Shares an “accredited investor,” as defined in Rule 501 of Regulation
D under the Securities Act. The Purchaser agrees that the Top-Up Option and the Top-Up Option
Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by the
Purchaser for the purpose of investment and not with a view to, or for resale in connection with,
any distribution thereof (within the meaning of the Securities Act).
ARTICLE II
THE MERGER
THE MERGER
Section 2.1 The Merger.
(a) Effect of Merger. Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the Delaware General Corporation Law, as amended (the
“DGCL”), at the Effective Time, the Purchaser shall be merged with and into the Company.
As a result of the Merger, the separate corporate existence of the Purchaser shall cease, and the
Company shall continue as the surviving corporation of the Merger (the “Surviving
Corporation”). The Merger shall have the effects set forth in the applicable provisions of the
DGCL. Without limiting the generality of the foregoing, at the Effective Time, all of the
property, rights, privileges, immunities, powers and
franchises of the Company and the Purchaser shall vest in the Surviving Corporation, and all
of the debts, liabilities and duties of the Company and the Purchaser shall become the debts,
liabilities and duties of the Surviving Corporation. Notwithstanding the foregoing, from and after
the Effective Time, and contingent and effective on the effectiveness of the Merger, the Surviving
Corporation agrees to assume and will perform all obligations of the Company under the Agreement
and Plan of Merger by and among the Company, Starsky Merger Sub, Inc., Starsky Acquisition Sub,
Inc., Chestnut Medical Technologies, Inc. and CMT SR, Inc. dated as of June 2, 2009 (the
“Chestnut Merger Agreement”). Without limiting the generality of the foregoing, the
Surviving Corporation shall
10
pay any additional consideration that may become payable to the former
shareholders of Chestnut Medical Technologies, Inc. after the Effective Time.
(b) Charter and Bylaws. At the Effective Time, the Company Charter shall, by virtue
of the Merger, be amended and restated in its entirety to read as the certificate of incorporation
of the Purchaser in effect immediately prior to the Effective Time, except that all references
therein to the Purchaser shall be deemed to be references to the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable Law; provided, however, that
Article I thereof shall read as follows: “The name of the Corporation is ev3 Inc.” The bylaws of
the Purchaser, as in effect immediately prior to the Effective Time, shall be the bylaws of the
Surviving Corporation, except that all references therein to the Purchaser shall be deemed to be
references to the Surviving Corporation, until thereafter changed or amended as provided therein or
by applicable Law.
(c) Directors and Officers. The directors of the Purchaser immediately prior to the
Effective Time shall, from and after the Effective Time, be the initial directors of the Surviving
Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of
the Surviving Corporation until their respective successors shall have been duly elected,
designated or qualified, or until their earlier death, resignation or removal in accordance with
the certificate of incorporation and bylaws of the Surviving Corporation. The officers of the
Purchaser immediately prior to the Effective Time, from and after the Effective Time, shall
continue as the officers of the Surviving Corporation, each to hold office in accordance with the
certificate of incorporation and bylaws of the Surviving Corporation until their respective
successors shall have been duly elected, designated or qualified, or until their earlier death,
resignation or removal in accordance with the certificate of incorporation and bylaws of the
Surviving Corporation.
(d) Other Conveyance Documents. If at any time after the Effective Time, the
Surviving Corporation shall determine, in its sole discretion, that any deeds, bills of sale,
instruments of conveyance, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its
right, title or interest in, to or under any of the rights, properties or assets of either of the
Company or the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or
in connection with, the Merger or otherwise to carry out this Agreement, then the officers and
directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and
on behalf of either the Company or the Purchaser, all such deeds, bills of sale, instruments of
conveyance, assignments and assurances and to take and do, in the name and on behalf of each of
such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to
and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out
this Agreement.
Section 2.2 Closing and Effective Time of the Merger. The closing of the Merger (the
“Closing”) shall take place at 10:00 a.m., Central Time, on a date to be specified by the
parties (the “Closing Date”), such date to be no later than the third (3rd) Business Day
after satisfaction or waiver of all of the conditions set forth in Article VII (other than
those conditions that by their nature are to be satisfied at the Closing, but subject to the
fulfillment or waiver of
11
those conditions at the Closing), at the offices of Xxxxxxxxxxx Xxxxx &
Xxxxxxxx LLP, Plaza VII, Suite 3300, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000, unless another
time, date or place is agreed to in writing by the parties hereto. On the Closing Date, or on such
other date as the Parent and the Company may agree to in writing, the Parent, the Purchaser and the
Company shall cause an appropriate certificate of merger or other appropriate documents (the
“Certificate of Merger”) to be executed and filed with the Secretary of State of the State
of Delaware in accordance with the relevant provisions of the DGCL and shall make all other filings
or recordings required under the DGCL. The Merger shall become effective at the time the
Certificate of Merger or other appropriate documents shall have been duly filed with the Secretary
of State of the State of Delaware or such other date and time as is specified in the Certificate of
Merger or other appropriate documents, such date and time hereinafter referred to as the
“Effective Time”.
Section 2.3 Meeting of Company Stockholders to Approve the Merger.
(a) Stockholder Meeting. If Company Stockholder Approval is required under the DGCL,
the Company shall, in accordance with applicable Law, the Company Charter, the Company Bylaws and
applicable Securities Exchange Rules, duly call, give notice of, convene and hold a special meeting
of the Company Stockholders (including any adjournment or postponement thereof, the “Special
Meeting”) as promptly as practicable after the Share Acceptance Time, for the purpose of
considering and voting on the matters requiring Company Stockholder Approval.
(b) Proxy Statement. If Company Stockholder Approval is required under the DGCL,
then, in accordance with all applicable Laws, the Company Charter and the Company Bylaws, as
promptly as practicable after the Share Acceptance Time, the Company shall (i) prepare and file
with the SEC a proxy statement relating to this Agreement and the Transactions, including the
Merger (such proxy statement, as amended or supplemented, the “Proxy Statement”), (ii)
subject to Section 6.3(e), include in the Proxy Statement the Company Board Recommendation,
(iii) furnish the information required to be provided to the Company Stockholders pursuant to the
DGCL and the Exchange Act and (iv) use its reasonable best efforts to solicit from Company
Stockholders proxies in favor of the adoption of this Agreement and the approval of the Merger and
take all other action reasonably necessary or advisable to secure the approval of stockholders
required by the DGCL and any other applicable Law and the Company Charter and Company Bylaws (if
applicable) to effect the Merger. The Parent will provide the Company with any information which
may be required in order to effectuate the preparation and filing of the Proxy Statement pursuant
to this Section 2.3(b). The Company will notify the Parent promptly upon the receipt of any comments
from the SEC or its staff in connection with the filing of, or amendments or supplements to, the
Proxy Statement. Whenever any event occurs which is required to be set forth in an amendment or
supplement to the Proxy Statement, the Company will promptly inform the Parent of such occurrence
and cooperate in filing with the SEC or its staff, and/or mailing to Company Stockholders, such
amendment or supplement. The Company shall cooperate and provide the Parent (and its counsel) with
a reasonable opportunity to review and comment on any amendment or supplement to the Proxy
Statement prior to filing such with the SEC, and will provide the Parent with a copy of all such
filings made with the SEC. If at any time prior to the Special Meeting any fact or event relating
to the Parent or the Purchaser or any of their Affiliates that is required by Law to be set forth
in an amendment or
12
supplement to the Proxy Statement should occur or be discovered by the Parent or
the Purchaser, the Parent or the Purchaser shall, promptly after becoming aware thereof, inform the
Company of such fact or event.
(c) Voting of Shares by Parent. At the Special Meeting or any postponement or
adjournment thereof, the Parent shall vote, or cause to be voted, all of the Shares then owned of
record by the Parent or the Purchaser or with respect to which the Parent or the Purchaser
otherwise has, directly or indirectly, voting power in favor of the adoption of this Agreement and
approval of the Merger and the Parent shall use its reasonable best efforts to deliver or provide
(or cause to be delivered or provided), in its capacity as a stockholder of the Company, any other
approvals that are required by applicable Law to effect the Merger.
Section 2.4 Merger Without Meeting of Stockholders. Notwithstanding the terms of
Section 2.3, if after the Share Acceptance Time and, if applicable, the expiration of any
Subsequent Offering Period provided by the Purchaser in accordance with this Agreement or the
Purchaser’s exercise of the Top-Up Option, the Parent and the Purchaser shall then hold of record,
in the aggregate, at least 90% of the outstanding shares of each class of capital stock of the
Company entitled to vote on the adoption of this Agreement under applicable Law (the “Short
Form Threshold”), the parties hereto agree to take all necessary and appropriate action to
cause the Merger to become effective as promptly as practicable, but no later than the time set
forth in Section 2.2, without a meeting of Company Stockholders in accordance with Section
253 of the DGCL.
ARTICLE III
CONVERSION OF SHARES
CONVERSION OF SHARES
Section 3.1 Conversion of Securities. At the Effective Time, pursuant to this
Agreement and by virtue of the Merger and without any action on the part of the Company, the
Purchaser or the holder of any Shares or any shares of capital stock of the Purchaser:
(a) Each share of common stock, $0.01 par value, of the Purchaser issued and outstanding
immediately prior to the Effective Time shall convert into and become one newly issued, fully paid
and non-assessable share of common stock of the Surviving Corporation.
(b) All shares of Company Common Stock that are owned by the Company as treasury stock and any
shares of Company Common Stock owned by the Parent or the Purchaser immediately prior to the Effective Time (whether pursuant to the Offer or
otherwise) shall be cancelled and retired and shall cease to exist, and no payment or distribution
shall be made or delivered with respect thereto.
(c) Except as otherwise provided in Section 3.4, each share of Company Common Stock
issued and outstanding immediately prior to the Effective Time (other than shares of Company Common
Stock to be cancelled pursuant to Section 3.1(b) and Dissenting Shares) shall, by virtue of
the Merger and without any action on the part of the holder thereof, be converted into the right to
receive an amount in cash, payable to the holder thereon, without any interest thereon, equal to
the Offer Price (the “Merger Consideration”). At the
13
Effective Time, all such Shares shall
be automatically cancelled and shall cease to exist, and the holders immediately prior to the
Effective Time of Shares not represented by certificates (“Book Entry Shares”) and the
holders of certificates that, immediately prior to the Effective Time, represented Shares (the
“Certificates”) shall cease to have any rights with respect to such Shares other than the
right to receive, upon transfer of such Book Entry Shares or delivery of such Certificates in
accordance with Section 3.2, the Merger Consideration, without any interest thereon, for
each such Share held by them.
(d) If at any time between the Agreement Date and the Effective Time any change in the number
of outstanding Shares shall occur as a result of a reclassification, recapitalization, stock split
(including a reverse stock split), or combination, exchange or readjustment of shares, or any stock
dividend or stock distribution with a record date during such period, other than the Merger, the
amount of the Merger Consideration as provided in Section 3.1(c) shall be equitably
adjusted to reflect such change.
Section 3.2 Exchange of Certificates and Book Entry Shares.
(a) At or prior to the Closing, the Parent shall deliver, in trust, to Xxxxx Fargo Bank, N.A.
(the “Paying Agent”), for the benefit of the Company Stockholders at the Effective Time,
sufficient funds for timely payment of the aggregate Merger Consideration (such cash hereinafter
referred to as “Consideration Fund”). In the event the Consideration Fund shall be
insufficient to pay the aggregate Merger Consideration contemplated by Section 3.1
(including with respect to former Dissenting Shares held by Company Stockholders who shall have
failed to perfect or who shall have effectively withdrawn or lost their rights to appraisal of such
Dissenting Shares under Section 262 of the DGCL), the Parent shall promptly deliver, or cause to be
delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency
required to make such payments.
(b) Promptly after the Effective Time (and in any event within five (5) Business Days after
the Effective Time), the Parent shall cause the Paying Agent to mail to each holder of record of
Certificates or Book Entry Shares whose shares were converted into the right to receive Merger
Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form,
that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall
be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as
applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in
lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions
for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in
exchange for payment of the Merger Consideration in customary form. Upon receipt of an “agent’s
message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of
a Certificate for cancellation to the Paying Agent, in each case together with such letter of
transmittal, duly executed and completed in accordance with the instructions thereto, and with such
other documents as may be required pursuant to such instructions, the holder of such Book Entry
Share or Certificate shall be entitled to receive in exchange therefor, subject to any required
withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article
III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be
cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection
with, or accrued on, the Merger Consideration. If any Merger Consideration is to
14
be paid to any
natural person or any corporation, partnership, limited liability company, association, trust or
other entity or organization, including any Governmental Entity (“Person”) other than a
Person in whose name the Book Entry Share transferred or Certificate surrendered in exchange
therefor is registered, it shall be a condition of such exchange that the Person requesting such
exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of payment of
the Merger Consideration to a Person other than the registered holder of the Book Entry Share
transferred or Certificate surrendered, or shall establish to the reasonable satisfaction of the
Paying Agent that such Tax has been paid or is not applicable.
(c) The Consideration Fund may be invested by the Paying Agent as directed by the Parent or
the Surviving Corporation. Earnings on the Consideration Fund in excess of the amounts payable to
Company Stockholders shall be the sole and exclusive property of the Parent and the Surviving
Corporation and shall be paid to the Parent or the Surviving Corporation, as the Parent directs.
No investment of the Consideration Fund shall relieve the Parent, the Surviving Corporation or the
Paying Agent from promptly making the payments required by this Article III, and following
any losses from any such investment, the Parent shall promptly provide additional cash funds to the
Paying Agent for the benefit of the Company Stockholder at the Effective Time in the amount of such
losses, which additional funds will be deemed to be part of the Consideration Fund.
(d) At and after the Effective Time, there shall be no transfers on the stock transfer books
of the Company of the shares of Company Common Stock that were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to
the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged
for the Merger Consideration pursuant to this Article III, except as otherwise provided by
Law.
(e) Any portion of the Consideration Fund (including the proceeds of any investments thereof)
that remains unclaimed by the former Company Stockholders six (6) months after the Effective Time
shall be delivered to the Surviving Corporation. Any holders of Certificates or Book Entry Shares
who have not theretofore complied with this Article III with respect to such Certificates
or Book Entry Shares shall thereafter look only to the Surviving Corporation for payment of their
claim for Merger Consideration in respect thereof.
(f) Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be
liable to any Person in respect of cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or
similar Law. If any Certificate or Book Entry Share shall not have been surrendered or transferred
prior to the date on which any Merger Consideration in respect thereof would otherwise escheat to
or become the property of any Governmental Entity, any such Merger Consideration in respect of such
Certificate or Book Entry Share shall, to the extent permitted by applicable Law, become the
property of the Surviving Corporation, and any holder of such Certificate or Book Entry Share who
has not theretofore complied with this Article III with respect thereto shall thereafter
look only to the Surviving Corporation for payment of their claim for Merger Consideration in
respect thereof. If any Certificate or Book-Entry Share shall not have been surrendered prior to
two (2) years after the Effective Time, any such Merger Consideration in respect of such
Certificate or Book Entry Share shall, to the extent permitted by applicable Law, become the
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property of the Surviving Corporation, free and clear of all claims or interest of any Person
previously entitled thereto.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact (such affidavit shall be in a form reasonably satisfactory to the Parent and
the Paying Agent) by the Person claiming such certificate to be lost, stolen or destroyed, and, if
required by the Parent, the posting by such Person of a bond in such amount as Parent may
reasonably direct as indemnity against any claim that may be made against it or the Surviving
Corporation with respect to such Certificate, the Paying Agent shall issue in exchange for such
lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in
respect of such Certificate pursuant to this Article III.
Section 3.3 Shares of Dissenting Stockholders.
(a) Notwithstanding anything in this Agreement to the contrary, other than as provided in
Section 3.3(b), any Shares that are issued and outstanding immediately prior to the
Effective Time and held by a Company Stockholder who has not voted in favor of the Merger or
consented thereto in writing and who has demanded properly in writing appraisal for such shares of
Company Common Stock in accordance with Section 262 of the DGCL (“Dissenting Shares”) shall
not be converted into the right to receive the Merger Consideration unless and until such Company
Stockholder shall have effectively withdrawn or lost (through failure to perfect or otherwise) such
stockholder’s right to obtain payment of the fair value of such stockholder’s Dissenting Shares
under the DGCL, but shall instead be entitled only to such rights with respect to such Dissenting
Shares as may be granted to such stockholder under the DGCL. From and after the Effective Time,
Dissenting Shares shall not be entitled to vote for any purpose or be entitled to the payment of
dividends or other distributions (except dividends or other distributions payable to stockholders
of record prior to the Effective Time). The Company shall give the Parent (i) prompt notice of any
demands for appraisal received by the Company, withdrawals of such demands, and any other
instruments, notices, petitions, or other communication received from stockholders or provided to
stockholders by the Company with respect to any Dissenting Shares or shares claimed to be
Dissenting Shares, and (ii) the opportunity to direct all negotiations and proceedings with respect
to demands for appraisal under the DGCL. Except with the prior written consent of the Parent, the
Company shall not make any payment with respect to, or offer to settle or settle, any such dissent.
(b) If any Company Stockholder who holds Dissenting Shares effectively withdraws or loses
(through failure to perfect or otherwise) such stockholder’s right to obtain payment of the fair
value of such stockholder’s Dissenting Shares under the DGCL, then, as of the later of the
Effective Time and the occurrence of such effective withdrawal or loss, such stockholder’s Shares
shall no longer be Dissenting Shares and, if the occurrence of such effective withdrawal or loss is
later than the Effective Time, shall be treated as if they had as of the Effective Time been
converted into the right to receive Merger Consideration, without interest, as set forth in
Section 3.1(c).
Section 3.4 Company Equity Awards.
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(a) As soon as reasonably practicable following the Agreement Date, and in any event prior to
the Effective Time, the Company Board (or, if appropriate, any committee administering any Company
Equity Plan) shall adopt appropriate resolutions and take all other actions as may be required to
provide that (i) each unexercised Company Stock Option that is outstanding immediately prior to the
Effective Time, whether or not vested, shall be cancelled, and, in exchange therefor, each former
holder of each such cancelled Company Stock Option shall be entitled to receive, in consideration
of the cancellation of such Company Stock Option and in settlement therefor, an amount in cash
(subject to any applicable withholding of Taxes required by applicable Law) equal to (x) the
excess, if any, of (1) the Merger Consideration over (2) the exercise price per share of Company
Common Stock previously subject to such Company Stock Option, multiplied by (y) the total number of
Shares previously subject to such Company Stock Option, whether or not vested (such amount, the
“Option Amount”); (ii) each share of Company Restricted Stock that is outstanding
immediately prior to the Effective Time shall vest in full and become non-forfeitable effective
immediately prior to the Effective Time and shall be cancelled at the Effective Time and converted
into the right to receive the Merger Consideration pursuant to Section 3.1(c) (subject to
any applicable withholding of Taxes required by applicable Law), and (iii) each Company RSU that is
outstanding immediately prior to the Effective Time shall vest in full effective immediately prior
to the Effective Time and the Shares issued thereunder shall be cancelled at the Effective Time and
converted into the right to receive the Merger Consideration pursuant to Section 3.1(c)
(subject to any applicable withholding of Taxes required by applicable Law). All amounts payable
pursuant to this Section 3.4 shall be paid as promptly as practicable following the
Effective Time, and in any event no later than ten (10) Business Days after the Effective Time,
without interest, and Parent shall cause the Surviving Corporation to make such payments as
promptly as practicable after the Effective Time in accordance with the foregoing and the terms of
the Company Stock Options or the applicable Company Equity Plans pursuant to which they were
issued.
(b) Within ten (10) Business Days following the Agreement Date, the Company shall provide
notice to all holders of Company Stock Options specifying that such Company Stock Options will not
be assumed in connection with the Merger and describing the treatment of such Company Stock Options
in accordance with this Section 3.4 and the terms of the applicable Company Equity Plan and
will permit each holder of a Company Stock Option who desires to exercise all or any portion of
such Company Stock Option following receipt of such notice to exercise such Company Stock Option
prior to the Effective Time.
(c) The Company’s ESPP shall continue to be operated in accordance with its terms and past
practice for the current Offering (as defined in the ESPP) (“Offering”); provided that if
the Effective Time is expected to occur prior to the end of the current Offering, the Company shall
take action to provide for an earlier Purchase Date (as defined in the ESPP) in accordance with
Section 5 of the ESPP. Such earlier Purchase Date shall be as close to the Effective Time as is
administratively practicable, and the Company shall notify each participant in writing, at least
ten (10) days prior to the earlier Purchase Date, that the Purchase Date for his or her option
(including for purposes of determining the Purchase Price of such option) has been changed to the
earlier Purchase Date and that his or her option will be exercised automatically on the earlier
Purchase Date, unless prior to such date he or she has withdrawn from the Offering as provided in
Section 11 of the ESPP. The Company shall suspend the commencement of any
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future Offerings under
the ESPP unless and until this Agreement is terminated and shall terminate the ESPP as of the
Effective Time.
(d) For purposes of this Agreement:
(i) “Company Equity Plans” means the Company’s Third Amended and Restated 2005
Incentive Plan, the Company’s Second Amended and Restated 2005 Incentive Stock Plan, the
Company’s Amended and Restated 2005 Incentive Stock Plan, the Company’s 2005 Incentive Stock
Plan, the ev3 LLC Amended and Restated 2003 Incentive Plan, the FoxHollow Technologies, Inc.
2004 Equity Incentive Plan, the FoxHollow Technologies, Inc. 1997 Stock Plan, as amended,
the Micro Therapeutics, Inc. Sixth Amended and Restated 1996 Stock Incentive Plan, the Micro
Therapeutics, Inc. 1996 Stock Incentive Plan, as amended, the Micro Therapeutics, Inc. 1993
Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan, the
Company Xxxxxx X. Xxxxxxxxx Inducement Option Grant Certificate and the ESPP.
(ii) “Company Restricted Stock” means shares of Company Common Stock that are
subject to risk of forfeiture and restrictions on transfer and were issued as restricted
stock awards or stock grants under any of the Company Equity Plans.
(iii) “Company RSUs” means the restricted stock units that provide for the
issuance of one or more shares of Company Common Stock upon vesting and were issued as
restricted stock unit awards or stock grants under any of the Company Equity Plans.
(iv) “Company Stock Option” means an option granted under any of the Company
Equity Plans, other than the ESPP, to purchase shares of Company Common Stock.
(v) “ESPP” means the Company Amended and Restated Employee Stock Purchase Plan.
Section 3.5 Withholding Tax. Each of the Purchaser, the Surviving Corporation, and
the Parent shall deduct or withhold from the consideration payable to any
Person pursuant to Articles II, III or IV hereof such amounts required
to be deducted or withheld with respect to such payment under applicable Tax Law. If the
Purchaser, the Surviving Corporation or the Parent, as the case may be, so withholds amounts, such
amounts shall be treated for all purposes of this Agreement as having been paid to the Person in
respect of which the Purchaser, the Surviving Corporation, or the Parent, as the case may be, made
such deduction or withholding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in (a) the Company SEC Reports filed by the Company prior to the Agreement
Date (excluding any disclosure set forth therein under the heading “Risk Factors”, or any
disclosures in any section related to forward-looking statement to the extent that
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they are
predictive, cautionary or forward-looking in nature) or (b) the disclosure schedule of the Company
delivered to the Parent concurrently herewith (the “Company Disclosure Schedule”) (with
specific reference to the section of this Agreement to which the information stated in such Company
Disclosure Schedule relates; provided that (i) disclosure in any section of such Company Disclosure
Schedule shall be deemed to be disclosed with respect to any other Section of this Agreement to the
extent that it is reasonably apparent from the face of such disclosure that such disclosure is
applicable or relevant to such other Section and (ii) the mere inclusion of an item in such Company
Disclosure 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 have a Company Material Adverse Effect), the Company represents and
warrants to the Parent and the Purchaser as follows:
Section 4.1 Organization.
(a) Each of the Company and its Subsidiaries is a corporation or other entity duly organized
and validly existing under the laws of the jurisdiction of its incorporation or organization and
has the requisite entity power and authority to own, lease and operate its properties and to carry
on its business as it is now being conducted. Each of the Company and its Subsidiaries is duly
qualified or licensed to do business and is in good standing in each jurisdiction in which the
nature of the business conducted by it makes such qualification or licensing necessary, except
where the failure to be so duly qualified or licensed and in good standing would not, individually
or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The
Company has made available to the Parent a copy of its amended and restated certificate of
incorporation (the “Company Charter”) and bylaws (the “Company Bylaws”), as
currently in effect. As of the Agreement Date, the Company is a “Target Company” as defined in
Chapter 80B.01 of the Minnesota Statutes.
(b) For purposes of this Agreement, “Company Material Adverse Effect” means any
material adverse change in, or material adverse effect on, the business, financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole; provided, however,
that any change or effect resulting from (i) the industries and markets in which the Company and
its Subsidiaries operate, (ii) the United States or the global economy or (iii) the United States financial or
securities markets shall be excluded from the determination of Company Material Adverse Effect, in
the case of clauses (i), (ii) and (iii), to the extent they have not had, or would reasonably be
expected not to have, a materially disproportionate effect on the Company and its Subsidiaries
relative to other companies in the same industry as the Company; and provided further that any
change or effect resulting from the following, shall not constitute, and shall not be considered
in determining whether there has occurred, a Company Material Adverse Effect: (1) the execution
or the announcement of this Agreement, (2) natural disasters, acts of war, terrorism or sabotage,
military actions or the escalation thereof or other force majeure events, (3) changes in GAAP or
changes in the interpretation of GAAP, or changes in the accounting rules and regulations of the
SEC, (4) any enactment or other action required by Law, required by this Agreement or taken at the
request of the Parent or the Purchaser, (5) any litigation brought or threatened by stockholders
of either the Parent or the Company (whether on behalf of the Company, the Parent or otherwise)
asserting allegations of breach of fiduciary duty relating to this Agreement or violations of
securities Laws in connection with the Schedule 14D-9, the Proxy Statement, if any, and each
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other
document required to be filed by the Company with the SEC or required to be distributed or
otherwise disseminated to the Company Stockholders in connection with the Transactions
(collectively, the “Company Disclosure Documents”), (6) any changes in Law or
interpretations thereof (including any health reform statutes, rules or regulations or
interpretations thereof), (7) any action required to comply with the rules and regulations of the
SEC or the SEC comment process, in each case, in connection with any Company Disclosure Document,
(8) any decrease in the market price or trading volume of Company Common Stock (but not the
underlying cause of such decrease), (9) any failure by the Company to meet any projections,
forecasts or revenue or earnings predictions, or any predictions or expectations of the Company or
of any securities analysts (but not the underlying cause of such failure), or (10) any
fluctuations in foreign currency exchange rates.
Section 4.2 Capitalization.
(a) The authorized capital stock of the Company consists of (i) 300,000,000 shares of Company
Common Stock, par value one cent ($0.01) per share, of which 113,940,546 are issued and outstanding
as of May 27, 2010 and (ii) 100,000,000 shares of preferred stock, par value $0.01 per share, none
of which are issued or outstanding on the Agreement Date. All of the outstanding shares of the
Company’s capital stock are duly authorized, validly issued, fully paid, non-assessable and free of
preemptive rights. As of the Agreement Date, except as set forth in Section 4.2 of the
Company Disclosure Schedule, there are, and at the Share Acceptance Time there will be, no existing
(i) shares of any class of capital stock or options, warrants, calls, subscriptions or other
rights, convertible securities, agreements or commitments of any character obligating the Company
or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity
interest in, the Company or any of its Subsidiaries, (ii) contractual obligations of the Company or
any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock of the Company
or any of its Subsidiaries or (iii) voting trusts or similar agreements to which the Company is a
party with respect to the voting of the capital stock of the Company.
(b) All of the outstanding shares of capital stock or equivalent equity interests of each of
the Company’s Subsidiaries are owned of record and beneficially, directly or indirectly, by the
Company free and clear of all material liens, pledges, security interests or other encumbrances.
For purposes of this Agreement, “Subsidiary” means, as to any Person, any corporation,
partnership, limited liability company, association or other business entity (i) of which such
Person directly or indirectly owns securities or other equity interests representing more than 50%
of the aggregate voting power or (ii) of which such Person possesses more than 50% of the right to
elect directors or Persons holding similar positions.
(c) Neither the Company nor any of its Subsidiaries owns any interest or investment (whether
equity or debt) in any corporation, partnership, joint venture, trust or other entity, other than a
Subsidiary of the Company.
Section 4.3 Authorization; Validity of Agreement; Company Action. The Company has the
requisite corporate power and authority to execute and deliver this Agreement and, subject to
obtaining the Company Stockholder Approval, if required, to consummate the Transactions. The
execution, delivery and performance by the Company of this Agreement and
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the consummation by the
Company of the Offer, the issuance of the Top-Up Option Shares (assuming the Top-Up Option is
exercised pursuant to Section 1.4), the Merger and the other Transactions have been duly
authorized by the Company Board and, except, in the case of the Merger, for the Company Stockholder
Approval, if required, and for the filing of the Certificate of Merger or other appropriate
documents with the Secretary of State of the State of Delaware, no other corporate action on the
part of the Company is necessary to authorize the execution and delivery by the Company of this
Agreement and the consummation by it of the Transactions. This Agreement has been duly executed
and delivered by the Company and, assuming due and valid authorization, execution and delivery
hereof by the Parent and the Purchaser, is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except that (a) such enforcement may
be subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies
generally and (b) the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
Section 4.4 Consents and Approvals; No Violations. The execution and delivery of this
Agreement by the Company do not, and the performance by the Company of this Agreement and the
consummation by the Company of the Transactions will not, (a) violate any provision of the Company
Charter or the Company Bylaws, (b) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, license, contract, agreement or other obligation, whether written or
oral (“Contract”), to which the Company or any of its Subsidiaries is a party or by which
any of them or any of their properties or assets is bound, (c) violate any Law applicable to the
Company, any of its Subsidiaries or any of their properties or assets or (d) other than in
connection with or compliance with (i) the DGCL, (ii) requirements under other state corporation
Laws, (iii) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR
Act”) and other Antitrust Laws, (iv) Securities Exchange Rules, (v) the Exchange Act and (vi)
such filings as may be required under Chapter 80B of the Minnesota Statutes, require the Company to make any filing or registration with or
notification to, or require the Company to obtain any authorization, consent or approval of, any
court, legislative, executive or regulatory authority or agency (a “Governmental Entity”);
except, in the case of clauses (b), (c) and (d), for such violations, breaches or defaults that, or
filings, registrations, notifications, authorizations, consents or approvals the failure of which
to make or obtain, would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect and would not materially adversely affect the ability of the
Company to consummate the Transactions.
Section 4.5 SEC Reports; Disclosure Controls and Procedures.
(a) The Company has filed all reports and other documents with the SEC required to be filed by
the Company since December 31, 2006 (the “Company SEC Reports”). As of their respective
filing dates, the Company SEC Reports (i) complied in all material respects with, to the extent in
effect at the time of filing, the applicable requirements of the Securities Act and the Exchange
Act and (ii) did not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
21
make the statements therein, in light
of the circumstances under which they were made, not misleading. Each of the financial statements
(including the related notes) of the Company included in the Company SEC Reports complied at the
time it was filed as to form in all material respects with the applicable accounting requirements
and the published rules and regulations of the SEC with respect thereto in effect at the time of
such filing, was prepared in accordance with generally accepted accounting principles in the United
States (“GAAP”) (except, in the case of unaudited statements, as permitted by the rules and
regulations of the SEC) applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly presented in all material respects the consolidated
financial position of the Company and its consolidated Subsidiaries as of the respective dates
thereof and the consolidated results of their operations and cash flows for the respective periods
then ended (subject, in the case of unaudited statements, to normal year-end adjustments). Since
the Balance Sheet Date, there has been no change in the Company’s accounting policies or the
methods of making accounting estimates or changes in estimates that are material to the Company’s
financial statements, except as described in the Company SEC Reports or except as may be required
by any regulatory authority.
(b) Since December 31, 2006, the Company and each of its Subsidiaries has had in place
“disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) promulgated under
the Exchange Act) reasonably designed and maintained to ensure that all information (both financial
and non-financial) required to be disclosed by the Company in the reports that it files or submits
to the SEC under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the rules and forms of the SEC and that such information is accumulated and
communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure and to make the certifications of the chief executive officer and chief
financial officer of the Company required under the Exchange Act with respect to such reports. The
Company maintains internal accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
Section 4.6 No Undisclosed Liabilities. Neither the Company nor any of its
Subsidiaries has, since April 4, 2010 (the “Balance Sheet Date”), incurred any liabilities
or obligations of any nature whatsoever (whether accrued, absolute, matured, determined, contingent
or otherwise and whether or not required to be reflected in the Company’s financial statements in
accordance with GAAP), except for (a) liabilities and obligations incurred since the Balance Sheet
Date in the ordinary course of business, (b) liabilities and obligations incurred in connection
with the Transactions, (c) liabilities and obligations that would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect and (d) liabilities and
obligations discharged or paid in full prior to the date of this Agreement in the ordinary course
of business consistent with past practice.
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Section 4.7 Absence of Certain Changes. Since the Balance Sheet Date through the
Agreement Date, (a) the Company has not suffered a Company Material Adverse Effect, (b) there has
not occurred any change, event, circumstance or development that is reasonably likely to have a
Company Material Adverse Effect and (c) except as contemplated by this Agreement, the Company has
not taken any action that would be prohibited by Section 6.1(a)(i) through Section
6.1(a)(xiii) if taken after the Agreement Date.
Section 4.8 Material Contracts.
(a) As of the Agreement Date, the Company is not a party to or bound by any Contract:
(i) that would be required to be filed by the Company as a material contract pursuant
to Item 601(b)(10) of Regulation S-K of the SEC;
(ii) that contains any non-competition or other agreement that limits the ability of
the Company or any of its Subsidiaries to compete in any line of business, in any geographic
area or with any person;
(iii) that creates any partnership, joint venture or similar entity with respect to any
material business of the Company and its Subsidiaries, taken as a whole;
(iv) that would, individually or in the aggregate, prevent, materially delay or
materially impede the Company’s ability to consummate the Transactions;
(v) that is an indenture, credit agreement, loan agreement, security agreement,
guarantee, note, mortgage or other agreement providing for indebtedness in excess of
$1,000,000, other than intercompany agreements;
(vi) that is a written contract (other than this Agreement) for the sale of any of its
assets after the Agreement Date in excess of $1,000,000, other than in the ordinary course
of business consistent with past practice;
(vii) under which the Company and the Company’s Subsidiaries are expected to make
annual expenditures or receive annual revenues in excess of $1,000,000 during the current or
a subsequent fiscal year;
(viii) containing a right of first refusal, right of first negotiation or right of
first offer in favor of a party other than the Company or its Subsidiaries;
(ix) that obligates the Company to file a registration statement under the Securities
Act of 1933 which filing has not yet been made; or
(x) that is an interest rate, equity or other swap or derivative instrument.
23
Each such contract described in clauses (i)-(x) is referred to herein as a “Material
Contract.”
Each Material Contract is a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms and, to the Company’s Knowledge, each other party thereto,
and is in full force and effect, and the Company has performed in all material respects all
obligations required to be performed by it to the Agreement Date under each Material Contract and,
to the Company’s Knowledge, each other party to each Material Contract has performed in all
material respects all obligations required to be performed by it under such Material Contract. The
Company has not received written notice, nor does the Company have Knowledge, of any material
violation of or material default of any obligation under (or any condition which with the passage
of time or the giving of notice would cause such a material violation of or material default under)
any Material Contract to which it is a party or by which it or any of its properties or assets is
bound. For purposes of this Agreement, “Company’s Knowledge” or “Knowledge of the
Company” means such facts and other information that as of the date of determination are
actually known to the individuals set forth on Section 4.8 of the Company Disclosure
Schedule.
Section 4.9 Employee Benefit Plans; ERISA.
(a) Section 4.9(a) of the Company Disclosure Schedule lists, as of the date of this Agreement,
each material employee benefit plan (as hereinafter defined) (i) that is currently maintained,
contributed (or required to be contributed) to, or sponsored by the Company or any of its
Subsidiaries, or (ii) to which the Company or any of its Subsidiaries is a party, or (iii) with
respect to which the Company or any of its Subsidiaries has any material liability, including any
material contingent liability, for the payment or delivery of any premiums, compensation or
benefits (collectively, the “Benefit Plans”). For purposes of the preceding sentence, an
“employee benefit plan” is any of the following that benefits or is intended to benefit any current
or former employee or director (whether or not an employee) of, or consultant or other service
provider (whether or not an employee) with respect to the Company or an ERISA Affiliate (as defined
in Section 4.9(b)), or the beneficiaries of any of them: (A) a “plan” described in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”); (B) a stock bonus, stock option, stock purchase, restricted
stock, restricted stock unit, stock appreciation right, or other equity-based plan, policy,
program, agreement or arrangement; or (C) an incentive, bonus, deferred compensation, welfare,
retiree medical or life insurance, retirement, supplemental retirement, termination, salary
continuation, severance, change in control, and any material fringe benefit or other material
benefit plan, policy, program, agreement or arrangement, whether written or unwritten. With
respect to each Benefit Plan, the Company has delivered to Parent a true and complete copy of each
of the following, together with all amendments: (i) all documents embodying the Benefit Plan (or,
where a Benefit Plan has not been reduced to writing, a summary of all material Plan terms), (ii)
in the case of any funded Benefit Plan, the trust agreement or similar instrument, (iii) for each
Benefit Plan subject to the requirement that annual reports be filed on a Form 5500, the two most
recently filed annual reports, with schedules, financial statements and auditor’s opinion attached,
(iv) in the case of each Benefit Plan intended to be qualified under Section 401(a) of the Code,
the most recent IRS determination or opinion letter applicable to the Benefit Plan, (v) all related
custodial agreements, insurance policies (including fiduciary liability insurance covering the
fiduciaries of the Benefit Plan), administrative services and similar agreements, and investment
advisory or
24
investment management agreements, if any, and (vi) the most recent summary plan
description, summaries of material modifications or similar summary and any employee handbook
referencing the Benefit Plan.
(b) None of the Company or any of its Subsidiaries or any other person (including an entity)
that together with the Company or any of its Subsidiaries is or at any relevant time was treated as
a single employer under Section 414(b), (c), (m) or (o) of the Code (each, together with the
Company and any of its Subsidiaries, an “ERISA Affiliate”) has ever contributed or been
required to contribute to, or has ever sponsored, maintained or participated in, (i) a pension plan
(within the meaning of Section 3(2) of ERISA) subject to Section 412 of the Code or Title IV of
ERISA, (ii) a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), or
(iii) a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which
an ERISA Affiliate would reasonably be expected to incur liability under Section 4063 or 4064 of
ERISA. Except as described in Section 4.9(b) of the Company Disclosure Schedule, the transactions
contemplated by this Agreement will not, by themselves or together with any other event, cause or
result in the payment, acceleration or vesting of any payment, right or benefit under any Benefit
Plan.
(c) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code is the
subject of a favorable determination or opinion letter from the Internal Revenue Service (the
“IRS”). No such determination or opinion letter has been revoked, and, to the Company’s
knowledge, revocation has not been threatened. To the Company’s knowledge, no such Benefit Plan
has been amended or operated since the date of its most recent determination or opinion letter in
any respect, and no act or omission has occurred, that would adversely affect its qualification.
(d) Each Benefit Plan has been maintained and administered at all times in accordance with its
material terms. Each Benefit Plan, including any associated trust or fund, has been established
and administered in material compliance with the applicable provisions of ERISA, the Code and other
applicable Law (including, where applicable, non-U.S.
Law), and, to the knowledge of the Company, nothing has occurred with respect to any Benefit
Plan that has subjected or could reasonably be expected to subject the Company or any ERISA
Affiliate to any liability or penalty under Section 502 of ERISA or to any tax under Chapter 43 of
the Code. All filings and reports with respect to each Benefit Plan required to have been
submitted to the IRS, the United States Department of Labor, or any other Governmental Entity have
been duly and timely submitted.
(e) No Benefit Plan provides health or life insurance benefits following retirement or other
termination of employment, and neither the Company nor any ERISA Affiliate has any obligation to
provide any such benefits following retirement or other termination of employment, in each case
except for benefit continuation coverage to the extent required under Part 6 of Subtitle B of Title
I of ERISA.
(f) With respect to each Benefit Plan, no administrative investigation, inquiry, audit or
other proceeding by the IRS, U.S. Department of Labor or other Governmental Entity, and no other
lawsuit, claim, or other controversy, other than claims for benefits in the
25
ordinary course and
proceedings with respect to qualified domestic relations orders, is pending or, to the knowledge of
the Company, threatened.
(g) With respect to each Benefit Plan, all contributions (including salary reduction
contributions), premiums and other payments (i) to the extent due, have been timely made, and (ii)
to the extent not yet due, have been appropriately accrued on the books of the Company or, if
applicable, any of its Subsidiaries.
(h) Each Benefit Plan subject to Section 409A of the Code (“Section 409A”) has been
operated in good faith compliance with Section 409A. No Benefit Plan, which is subject to the
requirements of Section 409A, violates such requirements. All Company Options granted by the
Company after October 3, 2004 or which vest or vested (in whole or in part) after December 31,
2004, have (or, if already terminated, had) an exercise price that was not less than the fair
market value of the underlying stock as of the date such Company Option was granted. The Company
is not a party to, nor is otherwise obligated under, any contract, agreement, plan or arrangement
that provides for the gross-up of Tax imposed by Section 409A(a)(1)(B) of the Code.
(i) Except for the Benefit Plans listed in Section 4.9(i) of the Company Disclosure Schedule,
no Benefit Plan is subject to the Laws of a jurisdiction other than the United States of America,
whether or not United States Law also applies. For purposes of the preceding sentence, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Xxxxxxxx Islands and the Virgin
Islands shall be considered jurisdictions other than the United States.
(j) Except for the Benefit Plans listed in Section 4.9(j) of the Company Disclosure Schedule,
each Benefit Plan and its related documentation or agreement, summary plan description, or other
written communication distributed generally to employees by its terms expressly and adequately
reserves the right to amend and terminate such Benefit Plan, and each Plan may be terminated
without material liability to the Company or any ERISA Affiliate, except for vested benefits
accrued through the date of termination and the administrative and professional costs incurred in such transaction. Except as listed in
Section 4.9(j) of the Company Disclosure Schedule, no Benefit Plan subject to ERISA includes in its
assets in any securities issued by the Company or any ERISA Affiliate.
(k) Except as listed in Section 4.9(i) of the Company Disclosure Schedule, neither the Company
nor any of its Subsidiaries: (i) has made any payments, is obligated to make any payments, or is a
party to any agreement that could obligate it to make any payments that will be treated as an
“excess parachute payment” under Section 280G of the Code or in the imposition of an excise Tax
under Code Section 4999 (or any corresponding provisions of state, local or foreign Tax Law); or
(ii) is a party to, nor is otherwise obligated under, any contract, agreement, plan or arrangement
that provides for the gross-up of the excise Tax imposed by Code Section 4999.
(l) Neither the Company nor the Company Subsidiaries has made any payments that have, or has
been or is a party to any agreement, contract, arrangement or plan that
26
have, resulted or will
result, separately or in the aggregate, in the payment of any compensation which would be subject
to the deduction limit imposed by Code Section 162(m).
Section 4.10 Litigation.
(a) There is no action, claim, suit, proceeding or governmental investigation pending against
or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries that
would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse
Effect. There are no material outstanding orders, judgments, injunctions or decrees of any
Governmental Entity against the Company, any of its Subsidiaries or any of their securities or
material assets or properties.
Section 4.11 Compliance with Law; Permits.
(a) The Company and each of its Subsidiaries hold all material permits, licenses, exemptions,
consents, certificates, authorizations, registrations, and other approvals from Governmental
Entities required to operate their respective businesses as it is being conducted as of the
Agreement Date (collectively, the “Permits”) and all of such Permits are in full force and
effect, except where the failure to obtain or have any such Permit would, individually, or in the
aggregate not reasonably be expected to have a Company Material Adverse Effect; and no proceeding
is pending or, to the knowledge of the Company, threatened to revoke, suspend, cancel, terminate or
adversely modify any such Permit. Neither the Company nor any of its Subsidiaries is in violation
of, or in default under, any Law, in each case, applicable to the Company or any of its
Subsidiaries or any of their respective assets and properties. Notwithstanding the foregoing, this
Section 4.11 shall not apply to employee benefit plans, Taxes, environmental matters, labor
and employment matters, or regulatory matters, which are the subject exclusively of the
representations and warranties in Section 4.9, Section 4.13, Section 4.15,
Section 4.16 and Section 4.18, respectively.
(b) None of the Company, any of the Company’s Subsidiaries, any of their respective officers
or employees, or to the Knowledge of the Company, any of its suppliers, distributors, licensees or
agents, or any other Person acting on behalf of the Company or any of
its Subsidiaries, directly or indirectly, has (i) made or received any payments in violation
of any Law (including the U.S. Foreign Corrupt Practices Act), including any contribution, payment,
commission, rebate, promotional allowance or gift of funds or property or any other economic
benefit to or from any employee, official or agent of any Governmental Entity where either the
contribution, payment, commission, rebate, promotional allowance, gift or other economic benefit,
or the purpose thereof, was illegal under any Law (including the U.S. Foreign Corrupt Practices
Act) (any such payment, a “Prohibited Payment”), (ii) provided or received any product or
services in violation of any Law (including the U.S. Foreign Corrupt Practices Act), or (iii) been
subject to any investigation by any Governmental Entity with regard to any Prohibited Payment.
Section 4.12 Intellectual Property.
(a) Section 4.12 of the Company Disclosure Schedule sets forth all (i) issued patents
and pending patent applications, (ii) trademark registrations, service xxxx
27
registrations, and
pending applications for registration thereof, and (iii) copyright registrations and pending
copyright applications, in each case that are owned by the Company or any of its Subsidiaries.
With respect to each item of Intellectual Property identified in this Section 4.12(a): (x)
one or more of the Company and its Subsidiaries owns all right, title, and interest in and to such
item, free and clear of all liens; (y) such item is not the subject of any outstanding order,
injunction, judgment, decree or ruling enacted, adopted, promulgated or applied by a Governmental
Entity or arbitrator (“Order”) of which the Company has received notice; and (z) no action
(other than patent or trademark office actions), suit, proceeding, claim (including inventorship
claims), or governmental investigation of which the Company or any Subsidiary has received written
notice is pending or, to the Knowledge of the Company, threatened that challenges the validity,
enforceability, or ownership of such Intellectual Property. For purposes of this Agreement,
“Intellectual Property” means all rights in patents, patent applications, inventions,
invention disclosures, trademarks (whether registered or not), trademark applications, service xxxx
registrations and service xxxx applications, trade names, trade dress, logos, slogans, uniform
resource locators, Internet domain names, Internet domain name applications, corporate names,
registered copyrighted works and unregistered copyrightable works (including proprietary software,
works of authorship, and other copyrightable works), technology, trade secrets, know-how, formulae,
processes, methods, technical documentation, specifications, data, designs and other intellectual
property and proprietary rights.
(b) Section 4.12 of the Company Disclosure Schedule sets forth a list of all material
Contracts under which the Company or any of its Subsidiaries (i) licenses from a third party
material Intellectual Property that is used in the conduct of the business of the Company or any of
its Subsidiaries as currently conducted that presently require or that could require payment by the
Company or any Subsidiary of royalties or license fees exceeding $1,000,000 in any twelve-month
period (such Contracts being referred to as “License-In Contracts”) and (ii) licenses to a
third party any Intellectual Property (such Contracts being referred to as “License-Out
Contracts”). To the Knowledge of the Company, (i) each License-In Contract and License-Out
Contract is valid and in full force and effect; (ii) each License-In Contract and License-Out
Contract will continue to be valid and in full force and effect on similar terms immediately
following the consummation of the Transactions upon meeting the terms and conditions, if any, in each
License-In Contract or License-Out Contract, as applicable; and (iii) neither the Company nor any
of its Subsidiaries is in material breach of any License-In Contract or License-Out Contract.
(c) To the Knowledge of the Company, one or more of the Company and its Subsidiaries owns or
has the right to use all valid Intellectual Property necessary to the conduct of the business of
the Company or any of its Subsidiaries as currently conducted.
(d) There is no pending or, to the Knowledge of the Company, threatened, action, claim, suit,
proceeding or governmental investigation in which it is alleged that the conduct of the Company’s
or any of its Subsidiaries’ business as currently conducted infringes or otherwise violates the
Intellectual Property rights of any third party. To the Knowledge of the Company, neither the
Company nor any of its Subsidiaries has received any written claim alleging any such infringement
or violation.
28
(e) The Company and its Subsidiaries have taken best efforts to protect and preserve its
rights in all Intellectual Property owned by the Company or any of its Subsidiaries that is used in
the conduct of the Company’s or any of its Subsidiaries’ business as currently conducted. To the
Company’s Knowledge, all employees and independent contractors, and consultants to the extent such
obligation exists, who have created Intellectual Property used in the conduct of the Company’s or
any of its Subsidiaries’ business as currently conducted have assigned to one or more of the
Company and its Subsidiaries all of their rights therein, to the extent permitted under Law and to
the extent that such rights would not automatically vest with the Company by operation of Law.
Section 4.13 Taxes.
(a) (i) All material Tax Returns required to be filed by or on behalf of the Company or any of
its Subsidiaries, or any consolidated, combined, affiliated or unitary group of which the Company
or any of its Subsidiaries is a member have been timely filed, (ii) each such Tax Return was true,
complete and correct in all material respects, (iii) the Company and each of its Subsidiaries has
paid or caused to be paid all material Taxes required to be paid other than Taxes (x) not yet due
and payable, or (y) being contested in good faith by appropriate proceedings, and in each case for
which the Company has established adequate reserves, (iv) no material audits, assessments of Taxes,
other examinations by the United States Internal Revenue Service or any other domestic or foreign
governmental authority responsible for the administration of any Taxes (collectively, the
“Taxing Authorities”), or any proceedings or appeals of such proceedings relating to Taxes
in respect of the Company or any Subsidiary are presently pending or proposed or threatened in
writing and no claim has been made by any Taxing Authority in any jurisdiction in which the Company
or any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries
may be subject to Tax in that jurisdiction, and (v) there are no liens for Taxes upon any property
or assets of the Company or any of its Subsidiaries except for liens for property Taxes not yet due
and payable.
(b) Neither the Company nor any of its Subsidiaries is a party to any agreement providing for
the allocation, indemnification, or sharing of Taxes, except for any such agreements that (i) are solely between the Company and/or any of its Subsidiaries, and (ii)
will terminate as of or prior to the Effective Time.
(c) Neither the Company nor any of its Subsidiaries has any actual or potential liability for
any Taxes of any Person (other than the Company and its Subsidiaries) under Treasury Regulation
Section 1.1502-6 or any similar provision or state, local, or foreign law, or as a transferee or
successor, by contract, operation of Law, or otherwise.
(d) The Company and each of its Subsidiaries have withheld, and paid to the appropriate Taxing
Authority as required by Law, all amounts required by Law or contract to be withheld from the
wages, salaries or other payments to employees, independent contractors, creditors, stockholders,
consultants, or any other third party. The Company and each of its Subsidiaries have complied in
all respects with all record keeping and reporting requirements in connection with any amounts paid
or owing to any employee, independent contractor, creditor, stockholder, consultant, or other third
party.
29
(e) Since January 1, 2007, neither the Company nor any of its Subsidiaries has distributed
stock of another corporation, or has had its stock distributed by another corporation, in a
transaction that was governed, or purported or intended to be governed, in whole or in part, by
Section 355 of the Code.
(f) Neither the Company nor any of its Subsidiaries has engaged in any “reportable
transaction” or “listed transaction” identified pursuant to Treasury Regulation Section 1.6011-4 or
any similar provision or state, local, or foreign law.
(g) Neither the Company nor any of its Subsidiaries has extended or waived any application of
any statute of limitation of any jurisdiction regarding the assessment or collection of any Tax.
(h) Neither the Company nor any of its Subsidiaries are, or were during the applicable period
specified in Section 897(c)(1)(A)(ii) of the Code, a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code.
(i) Since December 31, 2006, except as set forth in the Tax Returns described in Section
4.13(k), neither the Company nor any of its Subsidiaries has (i) changed any Tax accounting
methods, policies, or practices, except as required by a change in applicable Law, (ii) made,
revoked, or amended any material Tax election, (iii) filed any material amended Tax Return or claim
for refund, (iv) entered unto any closing agreement affecting any material Tax liability or refund,
or (v) settled or compromised any material Tax liability or refund. All financial statements on
which Tax Returns were based were prepared in accordance with the then existing United States
generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the
periods indicated.
(j) Neither the Company nor any of its Subsidiaries will be required to include any income in,
or exclude any material item of deduction from, taxable income for an taxable Period (or portion
thereof) beginning after the Closing Date as a result of any (i) adjustment under Section 481 of
the Code (or any similar provision of state, local, or foreign Law) made prior to the Closing Date
or (ii) “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local, or foreign Law) executed during the six
(6) year period ending on the Closing Date.
(k) The Company has made available or will make available to Parent upon request complete and
correct copies of all material Tax Returns, supporting work papers, examination reports, cost
sharing or similar arrangements, and statements of deficiencies assessed against or agreed to by
the Company or any of its Subsidiaries filed by or received by the Company or any of its
Subsidiaries since December 31, 2006.
(l) Definitions. (i) “Tax” or “Taxes” means any and all taxes,
including any interest, penalties, or other additions to tax that may become payable in respect
thereof, imposed by any federal, state, local, or foreign government or any agency or political
subdivision of any such government, which taxes shall include, without limiting the generality of
the foregoing, all income taxes, profits taxes, taxes on gains, alternative minimum taxes,
estimated taxes, payroll and employee withholding taxes, unemployment insurance taxes, social
30
security taxes, welfare taxes, disability taxes, severance taxes, license charges, taxes on stock,
sales and use taxes, ad valorem taxes, value added taxes, excise taxes, franchise taxes, gross
receipts taxes, business license taxes, occupation taxes, real or personal property taxes, stamp
taxes, environmental taxes, transfer taxes, workers’ compensation taxes, and other taxes, fees,
duties, levies, customs, tariffs, imposts, assessments, obligations and charges of the same or of a
similar nature to any of the foregoing; (ii) “Tax Return” means any and all returns,
reports, information returns, declarations, statements, certificates, bills, schedules, documents,
claims for refund, or other written information of or with respect to any Tax which is supplied to
or required to be supplied to any Taxing Authority, including any attachments, amendments and
supplements thereto
Section 4.14 Tangible Assets. Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect, the Company and/or one or more of
its Subsidiaries have valid title to, or valid leasehold or sublease interests or other comparable
contract rights in or relating to, all of the real properties and other tangible assets necessary
for the conduct of the business of the Company and its Subsidiaries, taken as a whole, as currently
conducted, in each case, free and clear of all imperfections of title, restrictions, encroachments,
liens and easements, except (i) liens for current Taxes not yet due and payable, that are payable
without penalty or that are being contested in good faith by appropriate proceedings, (ii) such
imperfections of title, restrictions, encroachments, liens and easements as do not and could not
reasonably be expected to materially detract from or materially interfere with the use or value of
the properties subject thereto or affected thereby, or otherwise materially impair business
operations involving such properties and (iii) liens securing debt which are reflected on the
Company Balance Sheet. There are no written or oral subleases, licenses, occupancy agreements or
other contractual obligations that grant the right of use or occupancy of any real property leased
by the Company or any Subsidiary (collectively, the “Real Property”), and there is no
person in possession of the Real Property other than the Company and its Subsidiaries. There is no
pending, or, to the knowledge of the Company, threatened eminent domain, condemnation or similar
proceeding affecting any Real Property leased by the Company or a Subsidiary. To the knowledge of
the Company, the material property and equipment of the Company and each Subsidiary that are used
in the operations of business are (i) in good operating condition and repair (ordinary wear and
tear
excepted) and (ii) have been maintained in accordance with normal industry practices. Section
4.14 of the Company Disclosure Schedule lists all Real Property leased by the Company or a
Subsidiary, and neither the Company nor any Subsidiary owns any Real Property.
Section 4.15 Environmental.
(a) Neither the Company nor any of its Subsidiaries (i) has received any written notice with
respect to the business of, or properties owned or leased by, the Company or any of its
Subsidiaries from any Governmental Entity or third party that remains outstanding alleging that the
Company or any of its Subsidiaries is not in compliance with any Laws governing pollution or the
protection of human health or the environment, (ii) has caused any “release” of a “hazardous
substance” (as those terms are defined in the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. § 9601 et seq.), in excess of a reportable quantity on any property
that is used for the business of the Company or any of its Subsidiaries which release remains
unresolved, (iii) currently owns, operates or leases or has
31
formerly owned, operated or leased any
premises that is listed, or to the Company’s knowledge, proposed for listing, on the National
Priorities List or the Comprehensive Environmental Response, Compensation, and Liability
Information System, both as maintained under the Federal Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), or on any comparable state governmental lists,
or (iv) has received written notification of, and the Company has no knowledge of, any potential
responsibility or liability of the Company or any Subsidiary pursuant to the provisions of (1)
CERCLA, or (2) any similar Federal, state, local, foreign or other Environmental Law.
(b) The Company and each of its Subsidiaries has obtained all permits required by
Environmental Law necessary to enable them to conduct their respective businesses as currently
conducted and are in compliance with such permits, except where the failure to obtain or comply
with any such Permit would not, individually, or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect. All such permits are in full force and effect and, to the
Company’s knowledge, there are no pending or threatened claims that seek the revocation,
cancellation, suspension or any adverse modification of any such permits, except where the failure
to have any such Permit would not, individually, or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect.
(c) The Company previously has made available to Parent copies of all environmental site
assessments prepared by any person, and permits required under Environmental Laws and all other
material correspondence with Governmental Entities in the Company’s possession relating to
compliance with Environmental Laws.
(d) For purposes of this Agreement, “Environmental Laws” means any applicable Federal,
state or local Laws, in each case as amended and in effect in the jurisdiction in which the
applicable site or premises are located, pertaining to the protection of human health, safety or
the environment, including without limitation, the following statutes and all regulations
promulgated thereunder: CERCLA; the Emergency Planning and Community Xxxxx-xx-Xxxx Xxx, 00 X.X.X. §
00000 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Federal Clean Air Act, 42 U.S.C. § 7401
et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq.; the Toxic
Substance Control Act, 15 U.S.C. § 2601 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et
seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801 et seq.; the Atomic
Energy Act, 42 U.S.C. § 2014 et seq.; any state or local statute of similar effect; and any Laws
relating to protection of the environment which regulate the management or disposal of biological
agents or substances including medical or infectious wastes.
(e) The representations and warranties contained in this Section 4.15 constitute the
sole and exclusive representations and warranties made by the Company concerning environmental
matters.
32
Section 4.16 Labor Matters.
(a) As of the Agreement Date, there are no pending or, to the Knowledge of the Company,
threatened strikes, lockouts or work stoppages involving the employees of the Company or any of its
Subsidiaries.
(b) As of the Agreement Date, neither the Company nor any of its Subsidiaries is a party to,
or bound by, any collective bargaining agreement with a labor union with respect to its Employees
located in the United States.
(c) There is no unfair labor practice or labor arbitration proceeding pending or, to the
Knowledge of the Company, threatened against the Company or its Subsidiaries, except for any such
proceeding that would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, the Company and its Subsidiaries are in compliance with applicable
Laws respecting employment.
Section 4.17 Brokers or Finders. No investment banker, broker, finder, financial
advisor or other intermediary, other than X.X. Xxxxxx Securities Inc. and Xxxxx Xxxxxxx & Co., is
entitled to any investment banking, brokerage, finder’s or similar fee or commission, success fee
or contingent fee in connection with this Agreement or the Transactions. The Company has provided
Parent with copies of all documents relating to such arrangements, which documents and arrangements
have not subsequently been modified. Section 4.17 of the Company Disclosure Schedule itemizes all
payments due from the Company or its Subsidiaries in connection with the Transactions.
Section 4.18 Regulatory Compliance.
(a) The businesses of each of the Company and its Subsidiaries are being conducted in
compliance with all Laws, including (i) the federal Food, Drug and Cosmetic Act, as amended
(including the rules and regulations promulgated thereunder, the “FDCA”), including without
limitation the FDA’s current Good Manufacturing Practices; (ii) federal Medicare and Medicaid
statutes and related state or local statutes or regulations; (iii) any comparable foreign Laws for
any of the foregoing, including laws and regulations promulgated under the Medical Device Directive
in the European Union (the “MDD”); (iv) federal or state criminal or civil Laws (including the federal Anti-Kickback Statute (42
U.S.C. §1320a-7(b)), Xxxxx Law (42 U.S.C. §1395nn), False Claims Act (42 U.S.C. §1320a-7b(a)),
Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320d et. seq., and any
comparable state or local laws); and (v) state licensing, disclosure and reporting requirements.
Since December 31, 2005, the manufacture of products by the Company and its Subsidiaries has been
conducted in material compliance with all applicable Laws, including the FDA’s current Good
Manufacturing Practices. In addition, since December 31, 2005, the Company and its Subsidiaries
have been in material compliance with all other applicable FDA requirements, including, but not
limited to, registration and listing requirements set forth in 21 U.S.C. Section 360 and 21 C.F.R.
Part 207 and 807. For the purposes of this Agreement, “Good Manufacturing Practices” means
the
33
requirements set forth in the quality systems regulations for medical devices contained in 21
C.F.R. Part 820.
(b) Neither the Company nor any of its Subsidiaries has Knowledge of any pending or threatened
enforcement action by the FDA or any other Governmental Entity that has jurisdiction over the
operations of the Company and its Subsidiaries.
(c) All material reports, documents, claims, permits and notices required to be filed,
maintained or furnished to the FDA or any other Governmental Entity by the Company and its
Subsidiaries have been so filed, maintained or furnished. All such reports, documents, claims and
notices were complete and accurate in all material respects on the date filed (or were corrected in
or supplemented by a subsequent filing) such that no liability exists with respect to such filing.
(d) Neither the Company nor any of its Subsidiaries has, since December 31, 2005, received any
FDA Form 483, notice of adverse finding, notices, untitled letters or other correspondence or
notice from the FDA, or other Governmental Entity (i) alleging or asserting noncompliance with any
applicable Laws or Permits or (ii) contesting the investigational device exemption, premarket
clearance or approval of, the uses of or the labeling or promotion of any “device”, as such term is
defined in Section 201(h) of the FDCA (a “Medical Device”).
(e) No Permit issued to the Company or any of its Subsidiaries by the FDA or any other
Governmental Entity has, since December 31, 2005, been limited, suspended, modified or revoked.
(f) The Company and its Subsidiaries have not received any written notices, correspondence or
other communication from the FDA or any other Governmental Entity since December 31, 2005 requiring
the termination, suspension or material modification of any clinical trials conducted by, or on
behalf of, the Company or its Subsidiaries, or in which the Company or its Subsidiaries have
participated.
(g) Since December 31, 2005, the Company and its Subsidiaries have not either voluntarily or
involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, any
recall, field notifications, field corrections, market withdrawal or replacement, safety alert,
warning, “dear doctor” letter, investigator notice, safety alert or other notice or action relating
to an alleged lack of safety, efficacy or regulatory compliance of any product. The Company and its Subsidiaries are not aware of any facts which are reasonably
likely to cause (i) the recall, market withdrawal or replacement of any product sold or intended to
be sold by the Company or its Subsidiaries, (ii) a change in the marketing classification or a
material change in the labeling of any such products, or (iii) a termination or suspension of the
marketing of such products.
(h) Neither the Company nor any of its Subsidiaries has received any written notice that the
FDA or any other Governmental Entity has (i) commenced, or threatened to initiate, any action to
withdraw its investigational device exemption, premarket clearance or premarket approval or request
the recall of any Medical Device, (ii) commenced, or threatened to
34
initiate, any action to enjoin
manufacture or distribution of any Medical Device or (iii) commenced, or threatened to initiate,
any action to enjoin the manufacture or distribution of any Medical Device produced at any facility
where any Medical Device is manufactured, tested, processed, packaged or held for sale.
Section 4.19 Vote Required. The affirmative vote of the holders of a majority of the
outstanding shares of Company Common Stock in favor of the approval and adoption of this Agreement
and the Transactions (the “Company Stockholder Approval”) is (unless the Merger is
consummated in accordance with Section 253(a) of the DGCL, as contemplated by Section 2.4
hereof) the only vote of the holders of any of the Company’s capital stock necessary in connection
with the consummation of the Transactions.
Section 4.20 Company Board Recommendation. The Company Board has unanimously adopted
resolutions affecting the Company Board Recommendation. As of the Agreement Date, the Company Board
Recommendation has not been amended, rescinded, or modified.
Section 4.21 Disclosure Documents.
(a) Each Company Disclosure Document when filed, distributed or disseminated, as applicable,
shall comply as to form in all material respects with the applicable requirements of the Exchange
Act and the rules and regulations thereunder and all other applicable Laws.
(b) (i) The Proxy Statement, as supplemented or amended, if applicable, at the time such Proxy
Statement or any amendment or supplement thereto is first mailed to Company Stockholders and at the
time of the Special Meeting and (ii) any Company Disclosure Document (other than the Proxy
Statement), at the time of the filing of such Company Disclosure Document or any supplement or
amendment thereto and at the time of any distribution or dissemination thereof, will not contain
any untrue statement of a material fact or omit to state any material fact that is necessary in
order to make the statements made therein, in the light of the circumstances under which they were
made, not misleading.
(c) The information with respect to the Company or any of its Subsidiaries that the Company
furnishes to the Parent in writing specifically for use in the Schedule TO and the Offer Documents,
at the time of the filing of the Schedule TO, at the time of any distribution or dissemination of the Offer Documents and at the time of the
consummation of the Offer, will not contain any untrue statement of a material fact or omit to
state any material fact that is required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they were made, not
misleading.
(d) The representations and warranties contained in this Section 4.21 will not apply
to statements or omissions included in the Company Disclosure Documents based upon information
furnished to the Company in writing by the Parent or the Purchaser specifically for use therein.
Section 4.22 Interested Party Transactions. Neither the Company nor any of its
Subsidiaries is a party to any transaction or agreement (other than ordinary course directors’
35
compensation arrangements or any Company Equity Plans or the ESPP) with any Affiliate, stockholder
that beneficially owns 2% or more of the outstanding Company Common Stock, or current or former
director or executive officer of the Company. No event has occurred since the date of the
Company’s last proxy statement to its stockholders that would be required to be reported by the
Company pursuant to Item 404 of Regulation S-K promulgated by the SEC.
Section 4.23 Opinion of Financial Advisor. The Company Board has received from each
of the Company’s financial advisors, X.X. Xxxxxx Securities Inc. and Xxxxx Xxxxxxx & Co., an
opinion, dated as of the Agreement Date, to the effect that, as of such date and based upon and
subject to the matters and limitations set forth therein, the consideration to be received by the
Company Stockholders pursuant to either the Offer or the Merger is fair, from a financial point of
view, to such holders. The Company has obtained the authorization of the Company financial
advisors to, and shall, include a copy of each financial advisor’s opinion and a fair summary of
the analysis underlying each opinion in the Schedule 14D-9 and, if applicable, the Proxy Statement
or in any information statement relating to the Transactions which the Company must, under any
applicable Law, file with any Governmental Entity or distribute to the Company Stockholders and
where such filing must include such opinion.
Section 4.24 Directors and Officers. As of the Agreement Date, each member of the
Company Board and each executive officer of the Company has advised the Company in writing that his
or her intention is to tender all Shares, if any, beneficially owned by him or her pursuant to the
Offer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE PURCHASER
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE PURCHASER
Except as disclosed in the disclosure schedule of the Parent and the Purchaser delivered to
the Company concurrently herewith (the “Parent Disclosure Schedule”) (with specific
reference to the section of this Agreement to which the information stated in such Parent
Disclosure Schedule relates; provided that (a) disclosure in any section of such Parent Disclosure
Schedule shall be deemed to be disclosed with respect to any other Section of this Agreement to the
extent that it is reasonably apparent from the face of such disclosure that such disclosure is
applicable or relevant to such other Section and (b) the mere inclusion of an item in such Parent
Disclosure 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 have a Parent Material
Adverse Effect), the Parent and the Purchaser jointly and severally represent and warrant to the
Company as follows:
Section 5.1 Organization. Each of the Parent and the Purchaser is a corporation duly
organized and validly existing under the laws of the jurisdiction of its incorporation and has the
requisite power and authority to own, lease and operate its properties and to carry on its business
as it is now being conducted. Each of the Parent and the Purchaser is duly qualified or licensed
to do business and in good standing in each jurisdiction in which the nature of the business
conducted by it makes such qualification or licensing necessary, except where the failure to be so
duly qualified or licensed and in good standing would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect. For purposes of this Agreement,
“Parent Material Adverse Effect” means any material adverse
36
change in, or material adverse
effect on, the ability of the Parent or the Purchaser to consummate the Transactions, including any
such change or effect that prevents, materially delays or materially impedes the Parent’s or the
Purchaser’s ability to consummate the Transactions. The Parent has made available or will make
available to the Company a copy of the articles of incorporation or certificate of incorporation,
as the case may be, and bylaws or other equivalent organizational documents of the Parent and the
Purchaser, as currently in effect.
Section 5.2 Authorization; Validity of Agreement; Necessary Action. Each of the
Parent and the Purchaser has the requisite corporate power and authority to execute and deliver
this Agreement and to consummate the Transactions. The execution, delivery and performance by the
Parent and the Purchaser of this Agreement, approval and adoption of this Agreement and the
consummation of the Transactions have been duly and validly authorized by all necessary action of
the Parent and the Purchaser (other than the written consent of the sole stockholder of the
Purchaser which shall occur promptly following the execution and delivery of this Agreement), and
no other corporate action on the part of the Parent or the Purchaser is necessary to authorize the
execution and delivery by the Parent and the Purchaser of this Agreement and the consummation by
them of the Transactions. This Agreement has been duly executed and delivered by the Parent and
the Purchaser and, assuming due and valid authorization, execution and delivery hereof by the
Company, is a valid and binding obligation of each of the Parent and the Purchaser, enforceable
against each of them in accordance with its terms, except that (a) such enforcement may be subject
to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws, now or hereafter in effect, affecting creditors’ rights and remedies generally and
(b) the remedy of specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought.
Section 5.3 Consents and Approvals; No Violations. The execution and delivery of this
Agreement by the Parent and the Purchaser do not, and the performance by the Parent and the
Purchaser of this Agreement and the consummation by the Parent and the Purchaser of the
Transactions will not, (a) violate any provision of the articles of incorporation or certificate of
incorporation, as the case may be, or bylaws (or equivalent organizational documents) of the Parent
or the Purchaser, (b) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any Contract to which the Parent or any of its
Subsidiaries is a party or by which any of them or any of their properties or assets is bound, (c)
violate any Law applicable to the Parent, any of its Subsidiaries or any of their properties or
assets or (d) other than in connection with or compliance with (i) the DGCL, (ii) requirements
under other state corporation Laws, (iii) the HSR Act and other Antitrust Laws, (iv) Securities
Exchange Rules, and (v) the Exchange Act, require on the part of the Parent or the Purchaser any
filing or registration with, notification to, or authorization, consent or approval of, any
Governmental Entity; except, in the case of clauses (b), (c) and (d), for such violations, breaches
or defaults that, or filings, registrations, notifications, authorizations, consents or approvals
the failure of which to make or obtain, would not, individually or in the aggregate, reasonably be
expected to have a Parent Material Adverse Effect.
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Section 5.4 Disclosure Documents.
(a) The Schedule TO and the Offer Documents, when filed, distributed or disseminated, as
applicable, will comply as to form in all material respects with the applicable requirements of the
Exchange Act and the rules and regulations thereunder and all other applicable Laws.
(b) The Schedule TO and the Offer Documents, at the time of filing, distribution or
dissemination and consummation of the Offer, will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.
(c) The information with respect to the Parent and any of its Subsidiaries that the Parent
furnishes to the Company in writing specifically for use in any Company Disclosure Document shall
not (i) in the case of the Proxy Statement, as supplemented or amended, if applicable, at the time
such Proxy Statement or any amendment or supplement thereto is first mailed to Company
Stockholders, as of the Special Meeting or at the Effective Time and (ii) in the case of any
Company Disclosure Document (other than the Proxy Statement), at the time of the filing of such
Company Disclosure Document or any supplement or amendment thereto, at the time of any distribution
or dissemination thereof and at the consummation of the Offer, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements made therein, in the light of the circumstances under which they were
made, not misleading.
(d) The representations and warranties contained in this Section 5.4 will not apply to
statements or omissions included in the Schedule TO or the Offer Documents based upon information
furnished to the Parent or the Purchaser in writing by the Company specifically for use therein.
Section 5.5 Operations and Ownership of the Purchaser. The Purchaser was formed
solely for the purpose of engaging in the Transactions and has not owned any assets, engaged in any
business activities, conducted any operations or incurred any liabilities or obligations other than
in connection with the Transactions. The authorized capital stock of the Purchaser consists of
1,000 shares of common stock, par value $0.01 per share, 100 shares of
which are validly issued and outstanding. All of the issued and outstanding capital stock of
the Purchaser is, and at the Effective Time will be, owned directly by the Parent.
Section 5.6 Financing; Sufficient Funds. The Parent has delivered to the Company a
true, complete and correct signed copy of a debt commitment letter, dated as of the Agreement Date
(the “Debt Financing Letter”), by and among Xxxxxx Xxxxxxx Senior Funding, Inc., Covidien
International Finance S.A., the parent of Parent (“CIFSA”) and Covidien plc, pursuant to
which the lenders party thereto have agreed, subject to the terms and conditions set forth therein,
to provide or cause to be provided, the debt amounts set forth therein to CIFSA (the
“Financing”). As of the Agreement Date, (a) the Debt Financing Letter is in full force and
effect, is a legal, valid and binding obligation of CIFSA and, to the knowledge of Parent, the
other parties thereto, and (b) the funding of the Financing is not subject to any conditions or
other contingencies other than those set forth in the Debt Financing Letter. Subject to the terms
and
38
satisfaction of the conditions of the Financing and this Agreement, the Financing, together
with the cash and marketable securities of CIFSA, will provide the Parent and the Purchaser with
sufficient immediately available funds to pay when due for all of the Shares tendered and not
properly withdrawn in the Offer and the aggregate Merger Consideration. Prior to the Agreement
Date, the Debt Financing Letter has not been amended or modified, and as of the Agreement Date, the
commitments contained in the Debt Financing Letter have not been withdrawn or rescinded in any
respect. As of the Agreement Date, assuming the accuracy of the representations and warranties in
Article IV and compliance by the Company with its covenants set forth in this Agreement, (x) no
event has occurred or circumstance exists which, with or without notice, lapse of time or both,
would constitute a default or breach of CIFSA under the Debt Financing Letter and (y) subject to
the satisfaction of the conditions to the Offer set forth on Annex A hereto, neither Parent nor
Purchaser has any reason to believe that CIFSA will be unable to satisfy on a timely basis any
condition to funding of the Financing to be satisfied by it as set forth in the Debt Financing
Letter at or prior to the Share Acceptance Time. Except for fee letters with respect to fees and
related arrangements with respect to the Financing (which do not relate to the conditionality of,
or contain any conditions precedent to, the funding of the Financing), there are no side letters or
other agreements, contracts or agreements related to the funding or investing, as applicable, of
the full amount of the Financing other than as expressly set forth in the Debt Financing Letter and
delivered to the Company prior to the date hereof. As of the Agreement Date, CIFSA has fully paid,
or caused to paid, any and all commitment fees which are due and payable on or prior to the
Agreement Date pursuant to the terms of the Debt Financing Letter.
Section 5.7 Share Ownership. None of the Parent or the Purchaser beneficially owns
any Company Common Stock.
Section 5.8 Vote/Approval Required. No vote or consent of the holders of any class or
series of capital stock of the Parent is necessary to approve the Offer, the Merger or the other
Transactions. The vote or consent of the Parent as the sole stockholder of the Purchaser (which
shall occur promptly following the execution and delivery of this Agreement) is the only vote or
consent of the holders of any class or series of capital stock of the Purchaser necessary to
approve this Agreement, the Offer, the Merger and the other Transactions.
Section 5.9 Investigation by the Parent and the Purchaser. Each of the Parent and the
Purchaser has conducted its own independent review and analysis of the businesses, assets,
condition, operations and prospects of the Company and its Subsidiaries. In entering into this
Agreement, each of the Parent and the Purchaser acknowledges that, except for the representations
and warranties of the Company expressly set forth in Article IV, none of the Company or its
Subsidiaries nor any of their respective Representatives makes any representation or warranty,
either express or implied, to Parent, Purchaser or any of their respective representatives in
connection with this Agreement, the Offer, the Merger or the Transactions. Without limiting the
generality of the foregoing, none of the Company or its Subsidiaries nor any of their respective
Representatives or any other Person has made a representation or warranty to the Parent or the
Purchaser with respect to (i) any projections or forecasts, estimates or budgets for the Company or
its Subsidiaries or (ii) any materials, documents or information relating to the Company or its
Subsidiaries made available to each of the Parent or the Purchaser or their Representatives in any
“data room,” confidential
39
memorandum, other offering materials or otherwise, except as expressly
and specifically covered by a representation or warranty set forth in Article IV. For
purposes of this Agreement, “Parent’s Knowledge” or “Knowledge of the Parent” means
such facts and other information that as of the date of determination are actually known to the
individuals set forth on Section 5.9 of the Parent Disclosure Schedule,
Section 5.10 Litigation. There is no Proceeding pending against or, to the Knowledge
of the Parent, threatened against or affecting, the Parent or any of its Subsidiaries that would,
individually or in the aggregate, reasonably be expected to prevent, materially delay or materially
impair the Parent’s or the Purchaser’s ability to consummate the Transactions. Neither the Parent
nor any of its Subsidiaries, is subject to any Order against the Parent or any of its Subsidiaries
or naming the Parent or any of its Subsidiaries as a party that would, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse Effect.
Section 5.11 Section 203 of the DGCL. As of the Agreement Date, neither the Parent
nor the Purchaser nor any of their respective “affiliates” or “associates” is, and at no time
during the last three (3) years has been, an “interested stockholder” of the Company, as such terms
are defined in Section 203 of the DGCL.
Section 5.12 Brokers or Finders. No investment banker, broker, finder, financial
advisor or intermediary, other than Xxxxxx Xxxxxxx & Co. Incorporated, the fees and expenses of
which will be paid by the Parent or the Purchaser, is entitled to any investment banking,
brokerage, finder’s or similar fee or commission in connection with this Agreement or the
Transactions based upon arrangements made by or on behalf of the Parent or any of its Subsidiaries.
Section 5.13 Other Agreements. To the actual knowledge of the executive officers of
the Parent, the Parent has disclosed to the Company all written contracts, agreements or
understandings between or among the Parent, the Purchaser or any Affiliate of the Parent, on the
one hand, and any member of the Company Board or officers or employees of the Company or its
Subsidiaries, on the other hand, other than as contemplated by this Agreement.
ARTICLE VI
COVENANTS
COVENANTS
Section 6.1 Interim Operations of the Company.
(a) During the period from the Agreement Date to the Share Acceptance Time or the date, if
any, on which this Agreement is earlier terminated pursuant to Section 8.1 (except (i) as
may be required by Law, (ii) with the prior written consent of the Parent, (iii) as contemplated or
permitted by this Agreement or (iv) as set forth in the Company Disclosure Schedule), the business
of the Company and its Subsidiaries shall be conducted only in the ordinary and usual course of
business in all material respects consistent with past practice, and, to the extent consistent
therewith, the Company and its Subsidiaries shall use reasonable best efforts to (1) preserve
intact their current business organization, (2) maintain their relationships with customers,
suppliers and others having business dealings with them, (3) notify and consult with Parent
promptly (A) after receipt of any material communication from any
40
Governmental Entity or
inspections of any manufacturing or clinical trial site and before giving any material submission
to a Governmental Entity and (B) prior to making any material change to a study protocol, adding
new trials, making any material change to a manufacturing plan or process, or making a material
change to the development timeline for any of its product candidates or programs, (4) preserve
intact and keep available the services of present employees of the Company and its Subsidiaries,
(5) keep in effect casualty, product liability, workers’ compensation and other insurance policies
in coverage amounts substantially similar to those in effect at the date of this Agreement, and (6)
preserve and protect the Intellectual Property owned by the Company and its Subsidiaries; provided,
however, that no action by the Company or any of its Subsidiaries with respect to matters addressed
specifically by any provision of this Section 6.1(a) shall be deemed a breach of this
sentence unless such action would constitute a breach of such specific provision. Without limiting
the generality of the foregoing, except (A) as may be required by Law, (B) with the prior written
consent of the Parent, which consent shall not be unreasonably withheld, delayed or conditioned or
(C) as set forth in the Company Disclosure Schedule, prior to the time when, pursuant to Section
1.3(a), the Parent’s designees for director constitute the majority of the Company Board, the
Company shall not, and shall not permit any of its Subsidiaries to, do any of the following:
(i) amend its certificate of incorporation or bylaws (or equivalent organizational
documents);
(ii) issue, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or
propose the issuance, sale, disposition or pledge or other encumbrance of (x) any shares of
capital stock of any class or any other ownership interest of the Company or any of its
Subsidiaries, or any securities or rights convertible into, exchangeable for, or evidencing
the right to subscribe for any shares of capital stock or any other ownership interest of
the Company or any of its Subsidiaries, or any rights, warrants, options, calls, commitments
or any other agreements of any character to purchase or acquire any shares of capital stock
or any other ownership interest of the Company or any of its Subsidiaries or any securities
or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any
shares of capital stock or any other ownership interest of the Company or any of its
Subsidiaries, or (y) any other securities of the Company or any of its Subsidiaries in respect of, in lieu of, or in
substitution for, Company Common Stock outstanding on the Agreement Date, except for (1)
Company Common Stock to be issued or delivered (A) pursuant to the Company Equity Plans, (B)
in connection with acquisitions consistent with past practice or (C) pursuant to the
Chestnut Merger Agreement, (2) the issuance, grant or delivery of up to an aggregate amount
of 750,000 Company Stock Options, Company Restricted Stock and Company RSUs to certain of
its employees, directors and consultants or (3) the exercise of the Top-Up Option;
(iii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or
otherwise acquire, any outstanding Company Common Stock, other than (x) from holders of
Company Stock Options in full or partial payment of the exercise price, or (y) in connection
with the withholding of Taxes payable by any holder of Company Stock Options, Company
Restricted Stock or Company RSUs upon the exercise, settlement or vesting thereof, in each
case to the extent required or permitted
41
under the terms of such Company Stock Options,
Company Restricted Stock or Company RSUs or any applicable Company Equity Plan;
(iv) split, combine, subdivide or reclassify any Company Common Stock or declare, set
aside for payment or pay any dividend or other distribution in respect of any Company Common
Stock or otherwise make any payments to stockholders in their capacity as such; provided
that this Section 6.1(a)(iv) shall not apply to dividends or distributions declared,
set aside for payment or paid by wholly owned Subsidiaries of the Company to the Company or
any other wholly owned Subsidiary of the Company;
(v) adopt a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of the Company or any
of its Subsidiaries, other than the Transactions;
(vi) acquire, sell, lease, dispose of, pledge or encumber any assets, other than (x)
acquisitions in existing or related lines of business of the Company or any of its
Subsidiaries as to which the aggregate consideration for all such acquisitions does not
exceed $2,000,000, (y) sales, leases, dispositions, pledges or encumbrances of assets with
an aggregate fair market value of less than $2,000,000, or (z) sales or transfers of
inventory in the ordinary course of business;
(vii) (x) other than in the ordinary course of business consistent with past practice,
incur any indebtedness for borrowed money in addition to that incurred as of the Agreement
Date or guarantee any such indebtedness or make any loans, advances or capital contributions
to, or investments in, any other Person, other than (A) to the Company or any wholly owned
Subsidiary of the Company or (B) strategic investments as to which the aggregate
consideration for all such investments does not exceed $2,000,000, or (y) pay, discharge or
satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of
(1) in the ordinary course of business and consistent with past practice, liabilities
reflected or reserved against in the Company’s consolidated balance sheet as of the Balance Sheet Date, (2) liabilities incurred in
the ordinary course of business since the Balance Sheet Date, or (3) all amounts under the
Loan Agreement, in accordance with Section 6.8(b)(iii);
(viii) change the compensation payable to any officer, director, employee, agent or
consultant, or enter into any employment, severance, retention or other agreement or
arrangement with any officer, director, employee, agent or consultant of the Company or any
of its Subsidiaries, or adopt, or increase the benefits (including fringe benefits) under,
any employee benefit plan or otherwise, except (A), in each case, as required by Law or in
accordance with existing agreements provided to Parent and disclosed in the Company
Disclosure Schedule and (B), in the case of compensation for employees, agents or
consultants who are not officers or directors, in the ordinary course of business consistent
with past practice unless the total compensation payable to such employee, agent or
consultant (including base, bonus opportunity at target, equity, sign-on bonus and
relocation) equals or exceeds two hundred thousand dollars ($200,000) US;
42
or make any loans
to any of its directors, officers or employees, agents or consultants, or make any change in
its existing borrowing or lending arrangements for or on behalf of any such persons pursuant
to an employee benefit plan or otherwise;
(ix) except as may be contemplated by this Agreement, in the ordinary course of
business consistent with past practices or to the extent required or advisable to comply
with applicable Law, terminate or materially amend any Benefit Plans;
(x) change in any material respect any of the accounting methods used by the Company
unless required by GAAP or applicable Law;
(xi) enter into a Material Contract or amend, terminate or waive, release or assign any
material rights or claims with respect to any Material Contract in any material respect;
(xii) settle (x) any suit, action, claim, proceeding or investigation that is disclosed
in the Company SEC Reports filed prior to the Agreement Date or (y) any other suit, action,
claim, proceeding or investigation;
(xiii) make, revise, or amend any material Tax election or settle or compromise any
material federal, state, local, or foreign Tax liability, change any material Tax accounting
period, change any material method of Tax accounting, enter into any closing agreement
relating to any material Tax, file any amended Tax Return, file any Tax Return in a manner
inconsistent with past practice, surrender any right to claim a material Tax refund, or
consent to any waiver or extension of the statute of limitations applicable to any material
Tax claim or assessment; or
(xiv) enter into any contract, agreement, commitment or arrangement to do any of the
foregoing.
(b) The Company shall promptly advise the Parent orally and in writing of any change or event
that has had or would reasonably be expected to have a Company Material Adverse Effect.
Section 6.2 Access to Information. From the Agreement Date until the earlier of the
Share Acceptance Time and the termination of this Agreement, the Company shall (and shall cause
each of its Subsidiaries to) afford to officers, employees, counsel, investment bankers,
accountants and other authorized representatives (“Representatives”) of the Parent and the
Purchaser reasonable access, in a manner not materially disruptive to the operations of the
business of the Company and its Subsidiaries, during normal business hours and upon reasonable
notice, to the properties, books and records of the Company and its Subsidiaries and, during such
period, shall, and shall cause each of its Subsidiaries to, furnish promptly to such
Representatives all information concerning the business, properties and personnel of the Company
and its Subsidiaries in each case as may reasonably be requested and necessary to consummate the
Transactions (and not to conduct further due diligence or other investigation of the Company);
provided, however, that nothing herein shall require the Company or any of its Subsidiaries to
disclose any information to the Parent or the Purchaser if such disclosure would, in the
43
reasonable
judgment of the Company, (a) violate applicable Law or the provisions of any agreement to which the
Company or any of its Subsidiaries is a party (provided that the Company shall use its reasonable
best efforts to obtain waivers of any such restrictions) or (b) waive attorney-client privilege.
Promptly after the Agreement Date, the Company shall provide to the Parent a copy of each Company
financial advisor’s fairness opinion, a summary of the analysis underlying each fairness opinion
and a copy of the relevant portions of each Company financial advisor’s presentation to the Company
Board related thereto. That certain letter agreement, dated April 28, 2010, by and between the
Company and the Parent (the “Confidentiality Agreement”) shall apply with respect to
information furnished hereunder by the Company, its Subsidiaries and the Company’s Representatives
(as defined in the Confidentiality Agreement).
Section 6.3 Board Recommendation; Acquisition Proposals.
(a) Subject to Section 6.3(b), 6.3(e) and 6.3(f), the Company and its
Subsidiaries will not, and will use best efforts to cause their respective Representatives not to,
directly or indirectly, from the Agreement Date until the Share Acceptance Time or, if earlier, the
termination of this Agreement in accordance with Article VIII (i) initiate, solicit, or
knowingly encourage or facilitate, or participate or engage in any negotiations, inquiries or
discussions with respect to any Acquisition Proposal, (ii) in connection with any actual or
potential Acquisition Proposal, disclose or furnish any nonpublic information or data to any Person
concerning the Company’s business or properties or afford any Person other than the Parent or its
Representatives access to its properties, books, or records, except as required by a governmental
demand for information, (iii) enter into or execute, or propose to enter into or execute, any
agreement relating to an Acquisition Proposal, or (iv) approve, endorse, recommend or make or
authorize any statement, recommendation, or solicitation in support of any Acquisition Proposal or
any offer or proposal relating to an Acquisition Proposal other than with respect to the Offer, the
Merger or the Transactions (other than any confidential statement, recommendation or solicitation
by and among the Company, the Company Board and their Representatives); provided, however, that
notwithstanding anything to the contrary herein, the
Company may refer any third party to this Section 6.3. The Company will, and will
direct its Representatives to, cease immediately and cause to be terminated all discussions and
negotiations that commenced prior to the Agreement Date regarding any proposal that constitutes, or
would reasonably be expected to lead to, an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time
following the Agreement Date and prior to the Share Acceptance Time the Company is contacted by any
third party expressing an interest in discussing an Acquisition Proposal or receives an Acquisition
Proposal, in each case, if the Company has not materially breached any provision of Section
6.3(a), the Company and the Company Board may participate or engage in negotiations, inquiries
or discussions (including, as a part thereof, making any counterproposal) with, or disclose or
furnish any nonpublic information and data to, any Person or Persons (but only after any such
Person enters into a confidentiality agreement, on substantially the same terms contained in, and
no less restrictive than, the Confidentiality Agreement, with the Company which may not provide for
an exclusive right to negotiate with the Company and may not restrict the Company from complying
with this Section 6.3(b)) making such contact or making such Acquisition Proposal and their
respective Representatives
44
and potential sources of financing, if, and only if, prior to the Share
Acceptance Time the Company Board determines in good faith, after consultation with its financial
advisors and outside legal counsel, that such Person or Persons have submitted to the Company an
Acquisition Proposal that is, or would reasonably be expected to lead to, a Superior Proposal and
the Company Board determines in good faith, after consultation with counsel, that the failure to
participate in such negotiations, inquiries or discussions, disclose or furnish such information,
enter into any agreement related to any Acquisition Proposal or accept any offer or proposal
relating to an Acquisition Proposal would reasonably be expected to violate the fiduciary duties of
the Company’s directors under applicable Law.
(c) The Company will as promptly as reasonably practicable (and in any event within
twenty-four (24) hours after receipt) notify the Parent in writing of the receipt by the Company of
(i) any Acquisition Proposal or (ii) any request for non-public information relating to the Company
or any of its Subsidiaries other than requests for information in the ordinary course of business
and, in the good faith judgment of the Company Board, unrelated to an Acquisition Proposal. The
Company shall notify the Parent, in writing, of any decision of the Company Board as to whether to
consider any Acquisition Proposal or to enter into discussions or negotiations concerning any
Acquisition Proposal or to disclose or furnish nonpublic information with respect to the Company or
any of its Subsidiaries to any Person, which notice shall be given as promptly as practicable after
such determination was reached (and in any event no later than twenty-four (24) hours after such
determination was reached). The Company will (i) provide the Parent with written notice setting
forth all such information (including the identity of the Person making such Acquisition Proposal)
as is necessary to keep the Parent informed of the status and material terms of any such
Acquisition Proposal and of any material amendments thereto, (ii) promptly provide the Parent a
copy of all written information provided by or on behalf of such Person or group in connection with
any Acquisition Proposal or provided by or on behalf of the Company or its Representatives to such
Person or group (other than any information which has previously been made available to Parent or
its Representatives), and (iii) promptly (and in any event within twenty-four (24) hours of such
determination) notify the Parent of any determination by the Company Board that such Acquisition
Proposal constitutes a Superior Proposal. The Company shall not, and shall cause its Subsidiaries not to, enter into
any agreement with any Person subsequent to the Agreement Date that would restrict the Company’s
ability to provide to Parent the information set forth in clauses (i) and (ii) above, and, if the
Company is a party to any agreement that would prohibit the Company from providing such information
to Parent, prior to providing non-public information to, or engaging in discussions or negotiations
with, the counterparty to such agreement, the Company will obtain approval from the counterparty to
such agreement to allow the Company to provide such information to Parent.
(d) Subject to Sections 6.3(e) and 6.3(f), unless and until this Agreement has
been terminated in accordance with Section 8.1, neither the Company Board nor any committee
thereof shall, directly or indirectly, (i)(w) withdraw, qualify, or modify, or propose to withdraw,
qualify or modify (other than in any confidential communication by and among the Company, the
Company Board and their Representatives), in a manner adverse to Parent or Purchaser, the Company
Board Recommendation, (x) make any public disclosure inconsistent with the Company Board
Recommendation, or, fail to reaffirm the Company Board Recommendation following the public
announcement of an Acquisition Proposal within two (2) Business Days of a written request by
Parent; (y) approve, adopt, or recommend, or propose to
45
approve, adopt, or recommend (other than in
any confidential communication by and among the Company, the Company Board and their
Representatives), any Acquisition Proposal or (z) in the event of a tender offer or exchange offer
for any outstanding Shares, fail to recommend against acceptance of such tender offer or exchange
offer by the Company Stockholders within ten (10) Business Days of the commencement thereof (any
action described in clauses (w)-(z) being referred to as a “Change of Recommendation”) or
(ii) approve or recommend, or publicly propose to approve or recommend, or allow the Company to
execute or enter into, any letter of intent, memorandum of understanding, agreement in principle,
merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership
agreement, or other similar agreement, arrangement, or understanding (x) constituting or related
to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal or
(y) requiring it to abandon, terminate, or fail to consummate the Transactions.
(e) Notwithstanding the foregoing, prior to the Share Acceptance Time, the Company Board may,
if the Company Board determines in good faith, after consultation with its outside legal counsel
and financial advisor (in the case of clause (i) below) that (i) (x) a written Acquisition Proposal
received by the Company constitutes a Superior Proposal and (y) the failure to take such action
would reasonably be expected to violate the fiduciary duties of the Company’s directors under
applicable Law, or (ii) in the absence of an Acquisition Proposal, due to events occurring after
the Agreement Date, the failure to take such action would reasonably be expected to violate the
fiduciary duties of the Company’s directors under applicable Law, (1) make a Change of
Recommendation, or (2) in the case of clause (i) above, terminate this Agreement to enter into a
definitive agreement with respect to such Superior Proposal; provided, that the Company shall not
terminate this Agreement pursuant to the foregoing clause (2) and any purported termination
pursuant to the foregoing clause (2) shall be void and of no force or effect unless, in advance of
or concurrently with such termination, the Company (A) pays the Termination Fee as required by
Section 8.2, (B) simultaneously with such termination enters into a merger agreement,
agreement in principle, acquisition agreement, purchase agreement or other similar agreement
relating to an Acquisition Proposal (the “Alternative Acquisition Agreement”) and (C) terminates this Agreement pursuant to
Section 8.1(c)(ii); provided, further, that the Company Board may not effect a Change of
Recommendation pursuant to the foregoing clause (1), or terminate this Agreement pursuant to the
foregoing clause (2) unless (A) the Company shall have provided prior written notice to the Parent
at least three (3) Business Days in advance (the “Notice Period”) of its intention to take
such action with respect to such Superior Proposal or otherwise make a Change of Recommendation,
which notice shall specify the material terms and conditions of any such Superior Proposal
(including the identity of the party marking such Superior Proposal) or the reasons for such Change
of Recommendation in the absence of a Superior Proposal, as the case may be, (B) prior to effecting
such Change of Recommendation or terminating this Agreement to enter into an Alternative
Acquisition Agreement with respect to such Superior Proposal, the Company shall, and shall direct
its financial and legal advisors to, during the Notice Period, negotiate with the Parent in good
faith (to the extent the Parent desires to negotiate) to make such adjustments in the terms and
conditions of this Agreement and (C) following the Notice Period (and giving effect to any proposed
adjustments to the terms of this Agreement) the Company Board determines in good faith, after
consultation with its outside legal counsel and financial advisor (in the case of clause (i) below)
that (i) such Acquisition Proposal remains a Superior Proposal or (ii) the failure to make such
Change of Recommendation would still violate the
46
fiduciary duties of the Company’s directors under
applicable Law. In the event of any material revisions to the Superior Proposal or material
changes to the facts and circumstances necessitating such Change of Recommendation after the start
of the Notice Period, the Company shall be required to deliver a new written notice to Parent and
to comply with the requirements of this Section 6.3(e) with respect to such new written
notice, and the Notice Period shall be deemed to have re-commenced on the date of such new notice.
Any Change of Recommendation shall not change the approval of the Company Board for purposes of
causing any state takeover statute or other state Law to be inapplicable to the Transactions,
including each of the Offer and the Merger or the transactions contemplated by the Tender and
Voting Agreement.
(f) Nothing contained in this Section 6.3 or elsewhere in this Agreement shall
prohibit the Company or the Company Board from taking and disclosing to the Company Stockholders a
position contemplated by Rule 14e-2(a) or Rule 14d-9 under the Exchange Act, or from issuing a
“stop, look and listen” statement pending disclosure of its position thereunder.
(g) For purposes of this Agreement:
(i) “Acquisition Proposal” means any offer, proposal or effort made by any
Person or Persons other than the Parent, the Purchaser or any Affiliate thereof to acquire,
other than as contemplated by this Agreement, (x) beneficial ownership (as defined under
Section 13(d) of the Exchange Act) of 20% or more of the Shares pursuant to a merger,
consolidation or other business combination, sale of shares of capital stock, tender offer
or exchange offer or similar transaction or series of related transactions involving the
Company or (y) 20% or more of the assets of the Company and its Subsidiaries, taken as a
whole.
(ii) “Superior Proposal” means any Acquisition Proposal (substituting the term
“50%” for the term “20%” in each instance where such term appears therein) that the Company
Board determines, after consultation with its outside legal counsel and financial advisors,
and after taking into account all of the terms and conditions of such Acquisition Proposal
(including any termination or break-up fees and conditions to consummation) and all
financial, legal, regulatory, and other aspects of such Acquisition Proposal, to be more
favorable to the Company and the Company Stockholders than the Transactions.
Section 6.4 Employee Benefits.
(a) From the Effective Time until the first anniversary of the Effective Time, Parent shall or
shall cause the Surviving Corporation to either (i) continue certain Benefit Plans, (ii) permit
employees of the Company and any of its Subsidiaries who remain in the employment with Parent or
Surviving Corporation or their respective subsidiaries following the Effective Time
(“Continuing Employees”) while they remain so employed by Parent or Surviving Corporation
or their respective subsidiaries, and as applicable, their eligible dependents, to participate in
the employee benefit plans, programs or policies (including without limitation any plan intended to
qualify within the meaning of Section 401(a) of the Code and any severance, vacation, sick,
personal time off plans or programs and excluding any equity
47
compensation or bonus plans, programs,
agreements or arrangements) of Parent or its Affiliates, or (iii) a combination of clauses (i) and
(ii), in all cases, such employee benefit plans, programs or policies shall be substantially
comparable in the aggregate to those provided to such employees immediately preceding the Effective
Time.
(b) From the Effective Time until the first anniversary of the Effective Time, Parent shall or
shall cause the Surviving Corporation to provide Continuing Employees while they remain so employed
by Parent or Surviving Corporation or their respective subsidiaries with base salary that is not
materially less than the base salary in effect for each such Continuing Employee immediately
preceding the Effective Time. From the Effective Time, Parent shall or shall cause the Surviving
Corporation to provide Continuing Employees with equity compensation and target bonus opportunity
that is equal to that provided for similarly situated employees of Parent and its subsidiaries.
(c) To the extent Parent elects to have Employees and their eligible dependents participate in
its or its Affiliate’s employee benefit plans, program or policies following the Effective Time and
subject to applicable Law and the terms of the applicable Benefit Plan, Parent shall, or shall
cause the Surviving Corporation or its subsidiaries to, recognize the prior service with the
Company or any of its Subsidiaries, including prior service with predecessor employers where such
prior service is recognized by the Company and any of its Subsidiaries as of immediately prior to
the Effective Time, of each Employee in connection with all employee benefit plans, programs or
policies of Parent or its Affiliates in which Employees are eligible to participate for purposes of
eligibility to participate, vesting and determination of level of benefits (but not (A) for
purposes of vesting in stock options and other equity awards, (B) for the purposes of benefit
accruals under any defined benefit pension plan or (C) to the extent that such recognition would
result in duplication of benefits).
(d) From and after the Effective Time, Parent shall, or shall cause the Surviving Corporation
or its subsidiaries to, cause any pre-existing conditions or limitations and eligibility waiting
periods under any group health plans of Parent or its Affiliates to be waived with respect to
Continuing Employees and their eligible dependents to the extent such Continuing Employees and
their eligible dependents were not subject to such preexisting conditions and limitations and
eligibility waiting periods under the comparable Plans as of the time immediately preceding the
Effective Time.
(e) No provision of this Agreement shall create any third party beneficiary rights in any
employee, any beneficiary or dependents thereof, or any collective bargaining representative
thereof, with respect to the compensation, terms and conditions of employment and benefits that may
be provided to any employee by Company, Parent or the Surviving Corporation or under any benefit
plan which Company, Parent or Surviving Corporation may maintain.
Section 6.5 Publicity. The initial press release by each of the Parent and the
Company with respect to the execution of this Agreement shall be acceptable to the Parent and the
Company. Neither the Company nor the Parent (nor any of their respective Affiliates) shall issue
any other press release or make any other public announcement with respect to this Agreement or the
Transactions without the prior agreement of the other party, except as may be
48
required by Law or by
any Securities Exchange Rule, in which case the party proposing to issue such press release or make
such public announcement shall use reasonable best efforts to consult in good faith with the other
party before making any such public announcements; provided that the Company will no longer be
required to obtain the prior agreement of or consult with the Parent in connection with any such
press release or public announcement if the Company Board has withdrawn its Recommendation or in
connection with any such press release or public announcement pursuant to Section 6.3(f),
provided, that the Company, in all such events, shall provide Parent with a copy of any such press
release or public announcement a reasonable time in advance of public dissemination.
Section 6.6 Directors’ and Officers’ Insurance and Indemnification.
(a) From and after the Effective Time, the Parent shall, and shall cause the Surviving
Corporation to, indemnify and hold harmless the individuals who at any time prior to the Effective
Time (i) were directors or officers of the Company or any of its present or former Subsidiaries or
corporate parents or (ii) served as treasurer of the Company (collectively, the “Indemnified
Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments,
fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at
or prior to the Effective Time (including the Transactions) to the fullest extent that the
Surviving Corporation is permitted by Law, and the Parent shall, and shall cause the Surviving
Corporation to, promptly advance expenses as incurred to the fullest extent that the Surviving
Corporation is permitted by Law. The certificate of incorporation and bylaws of the Surviving
Corporation shall contain the provisions with respect to indemnification and advancement of
expenses set forth in the certificate of incorporation and bylaws of the Company as amended,
restated and in effect on the Agreement Date, which provisions shall not be amended, repealed or
otherwise modified in any manner that would adversely affect the rights thereunder of the
Indemnified Parties, unless such modification is required by Law.
(b) Without limiting any of the obligations under paragraph (a) of this Section 6.6,
from and after the Effective Time, the Surviving Corporation shall keep in full force and effect,
and comply with the terms and conditions of, any agreement in effect as of the Agreement Date
between or among the Company or any of its Subsidiaries and any Indemnified Party providing for the
indemnification of such Indemnified Party.
(c) The Parent shall cause to be maintained in effect for not less than six (6) years from the
Effective Time the current policies of directors’ and officers’ liability insurance and fiduciary
liability insurance maintained by the Company and the Company’s Subsidiaries for the Indemnified
Parties and any other employees, agents or other individuals otherwise covered by such insurance
policies prior to the Effective Time (collectively, the “Insured Parties”) with respect to
matters occurring at or prior to the Effective Time (including the Transactions), so long as the
annual premium therefore would not be in excess of two hundred percent (200%) of the last annual
premium paid prior to the Effective Time (the “Maximum Premium”). Notwithstanding anything
to the contrary in this Agreement, the Company may, prior to the Effective Time, purchase a
so-called “Reporting Tail Endorsement” with an annual premium not in excess of the Maximum Premium,
in which case, provided that the Parent causes the Surviving Corporation to maintain such Reporting
Tail Endorsement in full
49
force and effect for not less than six (6) years from the Effective Time, the Parent
shall be relieved from its other obligations under this Section 6.6.
(d) This Section 6.6 is intended to benefit the Insured Parties and the Indemnified
Parties, and shall be binding on all successors and assigns of the Parent, the Purchaser, the
Company and the Surviving Corporation. The Parent hereby guarantees the payment and performance by
the Surviving Corporation of the indemnification and other obligations pursuant to this Section
6.6 and the certificate of incorporation and bylaws of the Surviving Corporation.
(e) After the Effective Time, the Parent guarantees the full performance of the Surviving
Corporation of its covenants and obligations set forth in this Section 6.6.
Section 6.7 Takeover Statutes. The Company has used and shall use its reasonable best
efforts (a) to take all action necessary so that no “control share acquisition”, “fair price”,
“business combination” or other anti-takeover Law is or becomes applicable to the Offer, the
Merger, any of the other Transactions or the transactions contemplated by the Tender and Voting
Agreement and (b) if any such anti-takeover Laws are or become applicable to the Offer, the Merger,
any of the other Transactions or the transactions contemplated by the Tender and Voting Agreement,
to take all action necessary so that the Offer, the Merger, any of the other Transactions and the
transactions contemplated by the Tender and Voting Agreement may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of
such anti-takeover Laws on the Offer, the Merger, any of the other Transactions or the transactions
contemplated by the Tender and Voting Agreement. Nothing in this Agreement shall be deemed to
prohibit the Company from complying with its obligations under Section 220 of the DGCL.
Section 6.8 Reasonable Best Efforts.
(a) Notwithstanding anything in this Agreement to the contrary, the parties hereto agree to
make an appropriate filing of a Notification and Report Form pursuant to the HSR Act and to make
all other filings required by applicable foreign Antitrust Laws with respect to the Transactions as
promptly as practicable and in any event prior to the expiration of any applicable legal deadline
(provided that the filing of a Notification and Report Form pursuant to the HSR Act will be made
within ten (10) Business Days after the Agreement Date) and to supply as promptly as practicable
any additional information and documentary material that may be required pursuant to the HSR Act or
any other Antitrust Law. The parties shall also consult and cooperate with one another, and
consider in good faith the views of one another, in connection with any analyses, appearances,
presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on
behalf of any party hereto in connection with proceedings under or relating to any such Antitrust
Laws. Without limiting the foregoing, the parties hereto agree (i) to give each other reasonable
advance notice of all meetings with any Governmental Entity relating to any Antitrust Laws, (ii) to
the extent practicable, to give each other reasonable advance notice of all substantive oral
communications with any Governmental Entity relating to any Antitrust Laws, (iii) if any
Governmental Entity initiates a substantive oral
communication regarding any Antitrust Laws, to promptly notify the other party of such
50
communication, and (iv) to provide each other with copies of all written communications from any
Governmental Entity relating to any Antitrust Laws. Any such disclosures or provision of copies by
one party to the other may be made on an outside counsel basis if appropriate. Notwithstanding
anything in this Agreement to the contrary, the Parent agrees, and shall cause each of its
Subsidiaries and Affiliates, to use reasonable best efforts to take any and all actions necessary
to obtain any consents, clearances or approvals required under or in connection with the HSR Act,
the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as
amended, and any other federal, state or foreign law, regulation or decree designed to prohibit,
restrict or regulate actions for the purpose or effect of monopolization or restraint of trade or
the significant impediment of effective competition (collectively “Antitrust Laws”), and to
enable all waiting periods under applicable Antitrust Laws to expire, and to use reasonable best
efforts to avoid or eliminate each and every impediment under applicable Antitrust Laws asserted by
any Governmental Entity, in each case, to cause the Merger and the other Transactions to occur
prior to the End Date, including but not limited to (x) promptly complying with or modifying any
requests for additional information (including any second request) by any Governmental Entity, and
(y) contesting, defending and appealing any threatened or pending preliminary or permanent
injunction or other order, decree or ruling or statute, rule, regulation or executive order that
would adversely affect the ability of any party hereto to consummate the Transactions and taking
any and all other actions to prevent the entry, enactment or promulgation thereof. Notwithstanding
anything to the contrary in this Section 6.8(a), in no event shall Parent or the Purchaser
be required to offer, negotiate, commit to or effect, by consent decree, hold separate order or
otherwise, the sale, divestiture, license or other disposition of any of the capital stock, assets,
rights, products or businesses of the Parent and its Subsidiaries. Each party shall bear its own
expenses and costs incurred in connection with any HSR Act filings or other such competition
filings and submissions which may be required by such party for the consummation of the Merger and
the other Transactions pursuant to this Agreement.
(b) Subject to the terms hereof, and except with regard to the Antitrust Laws which shall be
governed by Section 6.8(a), the Company, the Parent and the Purchaser shall, and the Parent
and the Company shall cause their respective Subsidiaries and Affiliates to, each use their
reasonable best efforts to:
(i) take, or cause to be taken, all actions, and do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or advisable to
consummate and make effective the Transactions as promptly as reasonably practicable;
(ii) obtain from any Governmental Entity or any other third party any consents,
licenses, permits, waivers, approvals, authorizations, or orders and send any notices, in
each case, which are required to be obtained, made or sent by the Company or the Parent or
any of their Subsidiaries in connection with the authorization, execution and delivery of
this Agreement and the consummation of the Transactions; provided that in connection
therewith none of the Company or its Subsidiaries will be required to (nor, without the
prior written consent of the Parent, will) make or agree to
make any payment or accept any material conditions or obligations, including amendments
to existing conditions and obligations;
51
(iii) obtain a consent or waiver from Silicon Valley Bank (the “Bank”) pursuant
to Section 9.7 of that certain Loan and Security Agreement, dated June 28, 2006, by and
among the Bank and certain of the Company’s Subsidiaries, as amended (the “Loan
Agreement”) that sets forth that the Purchaser’s acceptance for payment and payment for
all Shares validly tendered and not properly withdrawn pursuant to the Offer shall not be
considered an “Event of Default” under Section 8.2(a) of the Loan Agreement; provided,
however that if such consent or waiver cannot be obtained by the Company within five (5)
Business Days after the Agreement Date, then the Company shall provide notice to the Bank
pursuant to Section 2.1.10 of the Loan Agreement of the Company’s intent to prepay all
amounts owed under the Loan Agreement on the Initial Expiration Date, and the Company shall
pay all such amounts on the Initial Expiration Date;
(iv) as promptly as practicable, make all necessary filings and notifications, and
thereafter make any other submissions and applications with respect to this Agreement and
the Transactions required under any applicable statute, law, rule or regulation; and
(v) execute or deliver any additional instruments necessary to consummate the
transactions contemplated by, and to fully carry out the purposes of, this Agreement.
The Company and the Parent shall cooperate with each other in connection with the making of all
such filings, submissions, applications and requests. The Company and the Parent shall each use
their reasonable best efforts to furnish to each other (on an outside counsel basis if appropriate)
all information required for any filing, submission, application or request to be made pursuant to
the rules and regulations of any applicable statute, law, rule or regulation in connection with the
Transactions. For the avoidance of doubt, the Parent and the Company agree that nothing contained
in this Section 6.8(b) shall modify, limit or otherwise affect their respective rights and
responsibilities under Section 6.8(a).
Section 6.9 Financing.
(a) The Company will, and will cause each of its Subsidiaries to, use its reasonable best
efforts to cause its and their respective Representatives to, at Parent’s sole cost and expense,
cooperate with the Parent and take such actions as the Parent may reasonably request in connection
with the procurement and consummation of the Financing (or any Alternative Financing); provided
that nothing contained in this Section 6.9 shall require such cooperation to the extent it would
unreasonably interfere with the ongoing operations of the Company and its Subsidiaries.
(b) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable, to (i) maintain in
effect the Debt Financing Letter and to satisfy the conditions for obtaining the
Financing, (ii) enter into definitive financing agreements with respect to the Financing so
that such agreements are in effect no later than the Share Acceptance Time and (iii) consummate the
Financing on or prior to the Share Acceptance Time. Without limiting the generality of the
52
foregoing, in the event that Parent has been notified by the lenders party to the Debt Financing
Letter that any portion of the Financing will not be available on the terms and conditions
contemplated by the Debt Financing Letter, the Parent shall promptly notify the Company in writing
and use its reasonable best efforts to obtain alternative debt financing (“Alternative
Financing”) in an amount at least sufficient to, in addition to the cash and marketable
securities of CIFSA and the portion of the Financing that remains available on the terms and
conditions contemplated by the Debt Financing Letter, pay when due for all of the Shares tendered
and not properly withdrawn in the Offer and the aggregate Merger Consideration. Parent shall not
agree to any amendments or modifications to, or waivers of, any condition or other material
provision under the Debt Financing Letter without the prior consent of the Company if such
amendment, modification or waiver would impose new or additional conditions to the receipt of the
Financing or otherwise amend, modify or waive any of the conditions to the receipt of the Financing
in a manner would reasonably be expected to cause any delay in the satisfaction of the conditions
set forth in Annex I or Article VII. Notwithstanding the foregoing, neither the Parent nor the
Purchaser shall be required to (i) waive any conditions and requirements set forth in Annex I or
Article VII, (ii) consent to any changes to the Financing as set forth in the Debt Commitment
Letter or (iii) accept Alternative Financing on terms less favorable to the Parent and the
Purchaser in the aggregate than the Financing would have been. In the event the Parent obtains
Alternative Financing, the provisions of this Section 6.9 shall apply to such Alternative Financing
to the same extent it applies to the Financing. The Parent shall keep the Company informed on a
reasonably current basis in reasonable detail of the status of its reasonable best efforts to
finalize the Financing or arrange any Alternative Financing in accordance with this Section 6.9.
Section 6.10 Section 16 Matters. Prior to the Share Acceptance Time, the Company
Board, or an appropriate committee of non-employee directors, shall adopt a resolution consistent
with the interpretive guidance of the SEC so that the disposition of equity securities of the
Company pursuant to this Agreement by any officer or director of the Company who is a covered
person for purposes of Section 16 of the Exchange Act shall be an exempt transaction for purposes
of Section 16 of the Exchange Act.
Section 6.11 Tax Matters. Except as otherwise provided herein, all real and personal
property, transfer, documentary, sales, use registration, value added, stamp duty and other similar
Taxes incurred in connection with the Transactions shall be borne by the Parent. For the avoidance
of doubt, transfer Taxes shall not include any Taxes measured in whole or in part by net income.
Section 6.12 Obligations of the Purchaser. The Parent shall cause the Purchaser to
perform its obligations under this Agreement and to consummate the Offer and the Merger on the
terms and conditions set forth in this Agreement. The Parent hereby guarantees the payment by the
Purchaser of any amounts payable by the Purchaser pursuant to the Offer or otherwise pursuant to
this Agreement.
Section 6.13 Further Assurances. At and after the Effective Time, the officers and
directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and
on behalf of the Company or the Purchaser, any deeds, bills of sale, assignments or assurances and
to take and do, in the name and on behalf of the Company or the Purchaser, any
53
other actions and
things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all
right, title and interest in, to and under any of the rights, properties or assets of the Company
acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the
Merger.
Section 6.14 Delisting. The Company agrees to cause to be taken all actions necessary
to (a) delist the Company Common Stock from the Nasdaq Stock Market LLC and (b) to terminate the
registration of the Company Common Stock under the Exchange Act; provided that such delisting or
termination shall not be effective until after the Effective Time. The Parent will use all
reasonable best efforts to cause the Surviving Corporation to file with the SEC (a) a Form 25 on
the Closing Date and (b) a Form 15 on the first Business Day that is at least ten (10) days after
the date the Form 25 is filed (such period between the Form 25 filing date and the Form 15 filing
date, the “Delisting Period”). If the Surviving Corporation is reasonably likely to be
required to file any reports pursuant to the Exchange Act during the Delisting Period, the Company
will deliver to the Parent at least five (5) Business Days prior to the Closing a substantially
final draft of any such reports reasonably likely to be required to be filed during the Delisting
Period (“Post-Closing SEC Reports”). The Post-Closing SEC Reports provided by the Company
pursuant to this Section 6.14 will (i) not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they were made, not
misleading and (ii) comply in all material respects with the provisions of applicable Laws.
Section 6.15 401(k). Except with the prior written consent of the Parent, during the
period from the Agreement Date to the Effective Time, the Company shall not (a) make any
discretionary contribution to the Company’s 401(k) plan, other than employer matching contributions
at the rate in effect immediately prior to the Agreement Date, or (ii) make any required
contribution to the Company’s 401(k) plan in Shares. If requested by the Parent in writing at
least ten (10) days prior to the scheduled Expiration Date, the Company shall terminate the
Company’s 401(k) plan immediately prior to such scheduled Expiration Date.
Section 6.16 FIRPTA Certificate. The Company shall deliver to the Parent (a) a
certification in a form tendered by Parent to the Company dated not more than thirty (30) days
prior to the date of the consummation of the Offer and (b) to the extent necessary in light of the
certification delivered pursuant to clause (a), an additional certification in a form tendered by
Parent to the Company dated not more than thirty (30) days prior to the Effective Time, in each
case signed by the Company and to the effect that the Shares are not “United States real property
interests” within the meaning of section 897 of the Code; provided, however, that the Company’s
failure to provide such certification shall not be a condition to Closing under this Agreement, and
the Parent shall be entitled to withhold from the Merger Consideration and pay over to the
appropriate Taxing Authorities the amount required to be withheld under section 1445 of the Code.
Section 6.17 Rule 14d-10 Matters. Prior to the Agreement Date, the Company (acting
through the Compensation Committee of the Company Board) has taken all such steps as may be
required to cause any and all employment compensation, severance and employee benefit agreements
and arrangements entered into by the Company or its Subsidiaries or contemplated hereby with any of
their respective officers, directors or employees to be approved as an
54
“employment compensation,
severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d)(1) under the
Exchange Act and to satisfy the requirements of the non-exclusive safe harbor set forth in Rule
14d-10(d) under the Exchange Act. The Company has provided Parent with copies of all such actions.
Section 6.18 No Control of Other Party’s Business. Nothing contained in this
Agreement is intended to give the Parent, directly or indirectly, the right to control or direct
the Company’s or its Subsidiaries’ operations prior to the Share Acceptance Time, and nothing
contained in this Agreement is intended to give the Company, directly or indirectly, the right to
control or direct the Parent’s or its Subsidiaries’ operations. Prior to the Effective Time, each
of the Parent and the Company shall exercise, consistent with the terms and conditions of this
Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Section 6.19 Operations of the Purchaser. Prior to the Effective Time, the Purchaser
shall not engage in any other business activities and shall not have incurred any liabilities or
obligations other than as contemplated herein.
Section 6.20 Ownership of Shares. Prior to the Share Acceptance Time, none of the
Parent or the Purchaser or their respective wholly owned Subsidiaries shall acquire any Shares
except pursuant to this Agreement.
ARTICLE VII
CONDITIONS
CONDITIONS
Section 7.1 Conditions to Each Party’s Obligation to Effect the Merger. The
obligations of the Company, on the one hand, and the Parent and the Purchaser, on the other hand,
to consummate the Merger are subject to the satisfaction (or waiver by the Company, the Parent and
the Purchaser, if permissible under Law) of the following conditions:
(a) if required by the DGCL, the Company Stockholder Approval shall have been obtained;
(b) no Governmental Entity having jurisdiction over the Company, the Parent or the Purchaser
shall have enacted or issued any Law or Order or taken any other action enjoining or otherwise
prohibiting consummation of the Transactions on the terms contemplated by this Agreement;
(c) the waiting period (and any extensions thereof) applicable to the consummation of the
Transactions under the HSR Act or the antitrust or competition Laws in the countries set forth on
Schedule 7.1 attached hereto shall have expired or otherwise been terminated; and
(d) the Purchaser (or the Parent on the Purchaser’s behalf) shall have accepted for payment
and paid for all of the Shares validly tendered pursuant to the Offer and not properly withdrawn,
provided, however, that this Section 7.1(d) shall not be a condition to the obligation of
the Parent or the Purchaser to consummate the Merger if the failure to satisfy such condition shall
arise from the Parent’s or the Purchaser’s breach of any provision of this Agreement.
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Section 7.2 Frustration of Closing Conditions. None of the Company, the Parent or the
Purchaser may rely on the failure of any condition set forth in Section 7.1 to be satisfied
if such failure was caused by such party’s failure to act in good faith or use its reasonable best
efforts to consummate the Transactions, as required by and subject to Section 6.8.
ARTICLE VIII
TERMINATION
TERMINATION
Section 8.1 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the Offer, Merger and the other Transactions
contemplated herein may be abandoned at any time prior to the Share Acceptance Time, whether before
or after any requisite Company Stockholder Approval:
(a) by the mutual written consent of the Company and the Parent;
(b) by either the Company or the Parent:
(i) if as a result of the failure of any of the conditions set forth on Annex I
to this Agreement, the Offer shall have terminated or expired in accordance with its terms
(including after giving effect to any extensions) without the Purchaser having purchased any
shares of Company Common Stock pursuant to the Offer on or prior to December 31, 2010 (the
“End Date”); provided, however, that the right to terminate this Agreement under
this Section 8.1(b)(i) shall not be available to any party whose material breach of
this Agreement has been the cause of, or resulted in, the failure of such conditions to be
satisfied on or prior to such date; or
(ii) if any Governmental Entity having jurisdiction over the Company, the Parent or the
Purchaser shall have enacted or issued any Law or Order or taken any other material action,
in each case such that the condition set forth in Section 7.1(b) or Section
7.1(c) would not be satisfied.
(c) by the Company:
(i) prior to the acceptance of Shares for payment pursuant to the Offer, upon a breach
of any covenant or agreement on the part of the Parent or the Purchaser, or if any
representation or warranty of the Parent or the Purchaser shall be untrue, which breach or
failure to be true would reasonably be expected to have a Parent Material Adverse Effect;
provided, however, that if such breach or inaccuracy is capable of being cured prior to the
earlier of (x) the End Date and (y) the date that is twenty (20) Business Days from the date
the Parent is notified in writing by the Company of such breach or inaccuracy, the Company
may not terminate the Agreement pursuant to this
Section 8.1(c)(i) (1) prior to such date if the Parent and the Purchaser are
taking reasonable best efforts to cure such breach or inaccuracy and (2) following such date
if such breach or inaccuracy is cured at or prior to such date; provided further that the
right to terminate this Agreement under this Section 8.1(c)(i) shall not be
available to the Company if it has failed to perform in any material respect any of its
obligations under or in connection with this Agreement;
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(ii) prior to the acceptance of Shares for payment pursuant to the Offer, in order to
accept a Superior Proposal in compliance with Section 6.3(e); or
(iii) if, for any reason, (x) the Purchaser shall have failed to commence the Offer
within fifteen (15) Business Days after the Agreement Date, provided, that the Company may
not terminate this Agreement pursuant to this Section 8.1(c)(iii)(x) if such failure to
commence the Offer has resulted from the breach of this Agreement by the Company or if the
Company has not provided the Purchaser with a Schedule 14D-9 the Company is prepared to
file, without further revisions, (y) the Purchaser terminates or makes any change to the
Offer in breach of the terms of this Agreement or (z) the Purchaser shall have breached its
obligations to accept for purchase all Shares validly tendered and not properly withdrawn as
of the Initial Expiration Date or any subsequent Expiration Date established in accordance
with the terms of this Agreement.
(d) By the Parent or the Purchaser:
(i) upon a breach of any covenant or agreement on the part of the Company, or if any
representation or warranty of the Company shall be untrue, in any case such that a condition
set forth in Annex I would not be satisfied; provided, however, that if such breach
or inaccuracy is capable of being cured prior to the earlier of (x) the End Date and (y) the
date that is twenty (20) Business Days from the date the Company is notified in writing by
the Parent of such breach or inaccuracy, the Parent and the Purchaser may not terminate the
Agreement pursuant to this Section 8.1(d)(i) (1) prior to such date if the Company
is taking reasonable best efforts to cure such breach or inaccuracy and (2) following such
date if such breach or inaccuracy is cured at or prior to such date; provided further that
the right to terminate this Agreement under this Section 8.1(d)(i) shall not be
available to the Parent or the Purchaser if either of them has failed to perform in any
material respect any of its obligations under or in connection with this Agreement; or
(ii) if, prior to the acceptance of Shares for payment pursuant to the Offer, the
Company Board shall have made a Change of Recommendation.
Section 8.2 Effect of Termination.
(a) In the event of the termination of this Agreement in accordance with Section 8.1,
written notice thereof shall forthwith be given to the other party or parties specifying the
provision hereof pursuant to which such termination is made and a reasonably detailed description
of the basis therefor, and this Agreement shall forthwith become null and
void, and there shall be no liability on the part of the Parent, the Purchaser or the Company
or their respective directors, officers, employees, stockholders, Representatives, agents or
advisors other than, with respect to the Parent, the Purchaser and the Company, the obligations
pursuant to this Section 8.2, and Article IX, the last sentence of Section
6.2 and Section 6.5; provided, however, that except as set forth in Section
8.2(b) nothing contained in this Section 8.2 shall relieve the Parent, the Purchaser or
the Company from liability for fraud or willful breach of their respective covenants and agreements
set forth in this Agreement.
57
(b) If
(i) this Agreement is terminated by the Company pursuant to Section 8.1(c)(ii),
(ii) this Agreement is terminated by the Parent pursuant to Section 8.1(d)(ii),
(iii) this Agreement is terminated by the Parent pursuant to Section 8.1(b)(i)
following a knowing, material breach by the Company or its Subsidiaries or Representatives
of Section 6.3, or
(iv) (x) this Agreement is terminated by the Company or Parent pursuant to Section
8.1(b)(i) (but only if at such time the Parent would not be prohibited from terminating
this Agreement by the proviso in Section 8.1(b)(i)), (y) there has been publicly
disclosed after the Agreement Date and prior to the date of termination of this Agreement an
Acquisition Proposal that remains outstanding and not withdrawn as of the date of
termination of this Agreement, and (z) within twelve (12) months after such termination of
this Agreement, the Company enters into a definitive agreement with respect to a Qualifying
Transaction or consummates a Qualifying Transaction (in each case regardless of whether the
Qualifying Transaction is the Acquisition Proposal referred to in clause (y)),
then the Company shall pay to the Parent a termination fee of $83,650,522 in cash (the
“Termination Fee”),
(A) concurrently with any termination pursuant to Section 8.1(c)(ii),
(B) within one (1) Business Day after termination pursuant to Section
8.1(d)(ii) or pursuant to Section 8.1(b)(i) if Parent is entitled to the
Termination Fee under Section 8.2(b)(iii), and
(C) within one (1) Business Day after the Company executes and delivers a
definitive agreement with respect to (or, if earlier, consummates) a Qualifying
Transaction as set forth in Section 8.2(b)(iv);
it being understood that in no event shall the Company be required to pay the Termination Fee on
more than one occasion. Upon payment of the Termination Fee pursuant to Section 8.2(b)(i),
the Company shall have no further liability to the Parent or the Purchaser with respect to this
Agreement or the Transaction, provided that nothing herein shall release the Company from liability
for intentional breach or fraud. All payments contemplated by this Section 8.2(b) shall be
made by wire transfer of immediately available funds to an account designated by the Parent and
shall be reduced by any amounts required to be deducted or withheld therefrom under applicable Law
in respect of Taxes. If the Company fails to promptly make any payment required under this
Section 8.2(b) and the Parent commences a suit to collect such payment, the Company shall
indemnify the Parent for its fees and expenses (including attorneys fees and expenses) incurred in
connection with such suit and shall pay interest on the amount of the
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payment at the prime rate of
Bank of America (or its successors or assigns) in effect on the date the payment was payable
pursuant to this Section 8.2(b).
(c) As used in this Agreement: “Qualifying Transaction” means any acquisition of (i)
50% or more of the outstanding Shares pursuant to a merger, consolidation or other business
combination, sale of shares of capital stock, tender offer or exchange offer or similar transaction
involving the Company or (ii) all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole.
ARTICLE IX
MISCELLANEOUS
MISCELLANEOUS
Section 9.1 Amendment and Modification. Subject to applicable Law, this Agreement may
be amended, modified and supplemented in any and all respects, whether before or after any vote of
the Company Stockholders contemplated hereby, by written agreement of the parties hereto, at any
time prior to the Closing Date with respect to any of the terms contained herein; provided,
however, that after the approval of this Agreement by the Company Stockholders, no such amendment,
modification or supplement shall reduce or change the Merger Consideration or adversely affect the
rights of the Company Stockholders hereunder without the approval of such stockholders.
Section 9.2 Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any schedule, instrument or other document
delivered pursuant to this Agreement shall survive the Effective Time or the termination of this
Agreement. This Section 9.2 shall not limit any covenant or agreement contained in this
Agreement that by its terms is to be performed in whole or in part after the Effective Time.
Section 9.3 Notices. All notices, consents and other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by hand
delivery, by prepaid overnight courier (providing written proof of delivery), by confirmed
facsimile transmission or by certified or registered mail (return receipt requested and first class
postage prepaid), addressed as follows:
(a) | if to the Parent or the Purchaser, to: | ||
x/x Xxxxxxxx 00 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Vice President — Chief Mergers & Acquisitions Counsel |
with a copy (which shall not constitute notice) to: |
Ropes & Xxxx LLP Xxx Xxxxxxxxxxxxx Xxxxx |
00
Xxxxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Xxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx |
|||
(b) | if to the Company, to: | ||
ev3, Inc. 0000 Xxxxxx Xxxxx Xxxxxxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Xxxxx X. Xxxxx, Esq. |
with copies (which shall not constitute notice) to: |
Xxxxxxxxxxx Xxxxx & Xxxxxxxx XXX Xxxxx XXX, Xxxxx 0000 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxxx and Xxxxxxx Xxxx & Xxxxxxxxx LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Xxxxxx X. Xxxxxxx Xxxx X. Xxxxxxxxxx |
or to such other address or facsimile number for a party as shall be specified in a notice given in
accordance with this section; provided that any notice received by facsimile transmission or
otherwise at the addressee’s location on any Business Day after 5:00 P.M. (addressee’s local time)
shall be deemed to have been received at 9:00 A.M. (addressee’s local time) on the next Business
Day; provided further that notice of any change to the address or any of the other details
specified in or pursuant to this section shall not be deemed to have been received until, and shall
be deemed to have been received upon, the later of the date specified in such notice or
the date that is five (5) Business Days after such notice would otherwise be deemed to have been
received pursuant to this section. Nothing in this section shall be deemed to constitute consent
to the manner or address for service of process in connection with any legal proceeding, including
litigation arising out of or in connection with this Agreement.
Section 9.4 Interpretation. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties, and no
60
presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
Section 9.5 Counterparts. This Agreement may be executed by facsimile or portable
document format (pdf) transmission and in separate counterparts, each such counterpart being deemed
to be an original instrument, and all such counterparts will together constitute the same
agreement.
Section 9.6 Entire Agreement; Third-Party Beneficiaries. This Agreement (including
the Company Disclosure Schedule, the Parent Disclosure Schedule and the exhibits and instruments
referred to herein), the Confidentiality Agreement and the Tender and Voting Agreement (a)
constitute the entire agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof and (b) except (i) for the
rights of the Company Stockholders to receive the Merger Consideration following the Effective Time
in accordance with Article III, (ii) as provided in Section 6.6 (which is intended
for the benefit of the Company’s former and current officers and directors and other indemnitees,
all of whom shall be third-party beneficiaries of these provisions) and (iii) as provided in
Section 9.19 (which is intended for the benefit of any entities that have committed to
provide or otherwise entered into agreements in connection with the Financing, any Alternative
Financing or other financings in connection with the transactions contemplated hereby (including
the parties to the Debt Financing Letter and any joinder agreements, credit agreements or any other
definitive agreements relating thereto) and their respective Affiliates (the “Financing
Sources”)) are not intended to confer upon any Person other than the parties hereto any rights
or remedies hereunder.
Section 9.7 Severability. Any term or provision of this Agreement that is invalid or
unenforceable shall not affect the validity or enforceability of the remaining terms and provisions
hereof. If the final judgment of a court of competent jurisdiction declares that any term or
provision hereof is invalid, illegal or unenforceable, the parties hereto agree that the court
making such determination shall have the power to limit the term or provision, to delete specific
words or phrases, or to replace any invalid, illegal or unenforceable term or provision with a term
or provision that is valid, legal and enforceable and that comes closest to expressing the
intention of the invalid, illegal or unenforceable term or provision, and this Agreement shall be
enforceable as so modified. In the event such court does not exercise the power granted to it in
the prior sentence, the parties hereto agree to replace such invalid, illegal or unenforceable term
or provision with a valid, legal and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid, illegal or unenforceable term.
Section 9.8 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to contracts to be made and performed
entirely therein without giving effect to the principles of conflicts of law thereof or of any
other jurisdiction.
Section 9.9 Jurisdiction. Each of the parties hereto hereby (a) expressly and
irrevocably submits to the exclusive personal jurisdiction of any United States federal court
located in the State of Delaware or any Delaware state court in the event any dispute arises out
of
61
this Agreement or any of the Transactions, (b) agrees that it will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any such court and (c) agrees
that it will not bring any action relating to this Agreement or any of the Transactions in any
court other than a United States federal or state court sitting in the State of Delaware; provided
that each of the parties shall have the right to bring any action or proceeding for enforcement of
a judgment entered by any United States federal court located in the State of Delaware or any
Delaware state court in any other court or jurisdiction.
Section 9.10 Service of Process. Each party irrevocably consents to the service of
process outside the territorial jurisdiction of the courts referred to in Section 9.9 in
any such action or proceeding by mailing copies thereof by registered United States mail, postage
prepaid, return receipt requested, to its address as specified in or pursuant to Section
9.3. However, the foregoing shall not limit the right of a party to effect service of process
on the other party by any other legally available method.
Section 9.11 Specific Performance.
(a) The parties hereto acknowledge and agree that, in the event of any breach of this
Agreement, the other parties would be irreparably and immediately harmed and could not be made
whole by monetary damages. It is accordingly agreed that (i) each party hereby waives, in any
action for specific performance, any and all defenses in any action for specific performance,
including the defense of adequacy of a remedy at Law and (ii) each party shall be entitled, in
addition to any other remedy to which they may be entitled at Law or in equity, to specific
performance of the terms of this Agreement and to prevent or restrain breaches or threatened
breaches of this Agreement in any action instituted in accordance with Section 9.9, in each
case without the posting of a bond or undertaking or other security as a prerequisite to obtaining
equitable relief.
(b) Notwithstanding the parties’ rights to specific performance or injunctive relief or both
pursuant to Section 9.11(a), each party may pursue any other remedy available to it at Law
or in equity, including monetary damages; provided, that it is understood and agreed that claims
for monetary damages following termination of this Agreement shall be (i) limited to those arising
from or relating to any intentional breach of this Agreement or fraud prior to such termination and
(ii) subject to the penultimate sentence of Section 8.2(b). Notwithstanding anything in
this Agreement to the contrary, prior to the termination of this Agreement in accordance with its
terms, no party hereto shall be permitted to make any claim or commence any action, suit or
proceeding seeking monetary damages against any other party hereto in connection with or arising
out of this Agreement or the Transactions, provided that the foregoing shall be without prejudice
to the right of any party to seek such monetary damages
following such termination in accordance with, and subject to the limitations set forth in,
this Agreement.
Section 9.12 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other parties, except that Purchaser may
assign, in its sole discretion and without the consent of any other party, any or all of its
rights, interests, and obligation hereunder to (i) the Parent, (ii) the Parent and one or more
62
direct or indirect wholly-owned Subsidiaries of the Parent, (iii) one or more direct or indirect
wholly-owned Subsidiaries of the Parent, or (iv) any direct or indirect holder of five percent (5%)
or more of the capital stock of the Parent or any Subsidiary thereof (each, an “Assignee”).
Any such Assignee may thereafter assign, in its sole discretion and without the consent of any
other party, any or all of its rights, interests, and obligations hereunder to one or more
additional Assignees; provided, however, that (x) in no event will any assignment to an Assignee
cause a material delay or impair the ability of the Parent and the Purchaser to consummate the
Transactions and (y) in connection with any assignment to an Assignee, the Parent and the Purchaser
(and the assignor, if applicable) shall agree to remain liable for the performance by the Parent
and the Purchaser (and such assignor, if applicable) of their obligation hereunder. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective permitted successors and assigns.
Section 9.13 Expenses. Except as otherwise provided in this Agreement, all costs and
expenses incurred in connection with the Merger, this Agreement and the consummation of the
Transactions shall be paid by the party incurring such costs and expenses, whether or not the
Merger or any of the other Transactions is consummated.
Section 9.14 Headings. Headings of the articles and sections of this Agreement and
the table of contents, schedules and exhibits are for convenience of the parties only and shall be
given no substantive or interpretative effect whatsoever.
Section 9.15 Currency. All references to “dollars” or “$” or “US$” in this Agreement
refer to United States dollars, which is the currency used for all purposes in this Agreement.
Section 9.16 Construction; Interpretation. For purposes of this Agreement:
(a) The words “hereof,” “herein” and words of similar import shall, unless otherwise stated,
be construed to refer to this Agreement as a whole and not to any particular provision of this
Agreement, and references to articles, sections, paragraphs, exhibits and schedules are to the
articles, sections and paragraphs of, and exhibits and schedules to, this Agreement, unless
otherwise specified.
(b) Whenever “include,” “includes” or “including” is used in this Agreement, such word shall
be deemed to be followed by the phrase “without limitation.”
(c) Words describing the singular number shall be deemed to include the plural and vice versa,
words denoting any gender shall be deemed to include all genders and words denoting natural persons
shall be deemed to include business entities and vice versa.
(d) When used in reference to information or documents, the phrase “made available” means that
the information or documents referred to have been made available if requested by the party to
which such information or documents are to be made available.
(e) Terms defined in the text of this Agreement as having a particular meaning have such
meaning throughout this Agreement, except as otherwise indicated in this Agreement.
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Section 9.17 Waivers. Except as otherwise provided in this Agreement, any failure of
any of the parties to comply with any obligation, covenant, agreement or condition herein may be
waived by the party or parties entitled to the benefits thereof only by a written instrument signed
by the party granting such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
Section 9.18 WAIVER OF JURY TRIAL. EACH OF THE PARENT, THE PURCHASER AND THE COMPANY
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY DISPUTE
ARISING OUT OF OR RELATING IN ANY WAY TO THE DEBT FINANCING LETTER OR THE PERFORMANCE THEREOF, OR
THE ACTIONS OF THE PARENT, THE PURCHASER OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF. Each party to this Agreement certifies and acknowledges that
(a) no Representative of any other party has represented, expressly or otherwise, that such other
party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party
has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and
(d) such party has been induced to enter into this Agreement by, among other things, the mutual
waivers and certifications in this Section 9.18.
Section 9.19 Financing Sources Arrangements. Notwithstanding anything contained
herein to the contrary (including Section 9.9), each of the parties hereto agrees (a) that
it will not bring or support any action, cause of action, claim, cross-claim or third-party claim
of any kind or description, whether in law or in equity, whether in contract or in tort or
otherwise, against any of the Financing Sources in any way relating to this Agreement or any of the
transactions contemplated by this Agreement, including, but not limited to, any dispute arising out
of or relating in any way to the Debt Financing Letter or the performance thereof, in any forum
other than the federal and New York State courts located in the City of New York and (b) that the
waiver contained in Section 9.18 shall apply to any such action, cause of action, claim,
cross-claim or third-party claim.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Company, the Parent and the Purchaser have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date first written above.
EV3 INC. |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Senior Vice President, Secretary and Chief Legal Officer | |||
COVIDIEN GROUP S.A.R.L. |
||||
By: | /s/ Xxxxxxxxxxxx Xxxxxxx | |||
Name: | Xxxxxxxxxxxx Xxxxxxx | |||
Title: | General Manager | |||
COV DELAWARE CORPORATION |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxx | |||
Title: | Vice President and Assistant Secretary | |||
65
ANNEX I
Capitalized terms used in this Annex I and not otherwise defined herein shall have the
meanings assigned to them in the Agreement and Plan of Merger to which it is attached (the
“Agreement”).
Notwithstanding any other provisions of the Offer, the Purchaser shall not be required to, and
the Parent shall not be required to cause the Purchaser to, accept for payment, purchase or,
subject to any applicable rules and regulations of the SEC, including Rule 14e-19(c) promulgated
under the Exchange Act, pay for any validly tendered Shares and may delay the acceptance for
payment of, purchase or, subject to the restrictions referred to above, the payment for, any
validly tendered Shares, if:
(a) the Minimum Condition shall not have been satisfied at the Expiration Date;
(b) the applicable waiting period under the HSR Act and any applicable antitrust Law in the
countries set forth on Schedule 7.1 attached hereto in respect of the transactions
contemplated by the Agreement has not expired or been terminated at or prior to the Expiration
Date;
(c) any of the following conditions exists or has occurred, and is continuing at the
Expiration Date:
(i) there shall be pending any suit, action or proceeding brought by any Governmental
Entity (A) seeking to prohibit or impose any material limitations on the Parent’s or the
Purchaser’s ownership or operation (or that of any of their respective Subsidiaries) of all
or any material portion of the Company’s or the Company’s Subsidiaries’ businesses or
assets, taken as a whole, (B) seeking to prohibit or make illegal the making or consummation
of the Offer or the Merger or the performance of any of the other Transactions, (C) seeking
to impose material limitations on the ability of the Purchaser, or render the Purchaser
unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the
Offer or the Merger, (D) seeking to impose material limitations on the ability of the
Purchaser or the Parent effectively to exercise full rights of ownership of the Shares,
including, without limitation, the right to vote the Shares purchased by it on all matters
properly presented to the Company Stockholders, or (E) seeking to require divestiture by the
Parent or any of its Subsidiaries of any Shares;
(ii) there shall be any Law or Order enacted, entered, enforced, promulgated or deemed
applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental
Entity, to the Offer, the Merger or any other Transaction, or any other action shall be
taken by any Governmental Entity, that would reasonably be expected to result, directly or
indirectly, in any of the consequences referred to in clauses (A) through (E) of paragraph
(c)(i) of this Annex I;
(iii) any of the representations and warranties of the Company contained in this
Agreement shall not be true and accurate when made or at the
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consummation of the Offer, except (1) those representations and warranties that address
matters only as of a particular date or only with respect to a specific period of time,
which representations and warranties need only be true and accurate as of such date or with
respect to such period), (2) any representation or warranty of the Company contained in
Section 4.2 (subject to de minimus exceptions involving discrepancies of no more
than 20,000 shares in the aggregate of Company Common Stock or Company Common Stock issuable
pursuant to Company Options, Company Restricted Stock or Company RSUs), and Section
4.3 shall be deemed to be not true and accurate if it fails to be true and accurate in
all respects, and (3) for any representation or warranty of the Company (other than any
representation or warranty referred to in clause 2 above), where failure to be so true and
accurate, individually or in the aggregate, does not have or would not reasonably be
expected to have a Company Material Adverse Effect (without giving effect to any limitation
as to “materiality” or “material adverse effect” set forth therein);
(iv) the Company shall have breached or failed, in any material respect, to perform or
to comply with any agreement or covenant required to be performed or complied with by it
under the Agreement;
(v) since the date of the Agreement, a Company Material Adverse Effect shall have
occurred and be continuing;
(vi) the Parent and the Purchaser shall have failed to receive a certificate executed
by the Company’s Chief Executive Officer or President on behalf of the Company, dated as of
the then-scheduled expiration of the Offer, to the effect that the conditions set forth in
paragraphs (c)(iii), (iv) and (v) of this Annex I have not occurred; or
(vii) the Agreement shall have been terminated in accordance with its terms.
The foregoing conditions are for the sole benefit of the Parent and the Purchaser and may be
asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such
conditions and may be waived by the Parent or the Purchaser in whole or in part at any time and
from time to time in their sole discretion (except the Minimum Condition may not be waived), in
each case, subject to the terms of the Agreement and applicable Laws. The failure by the Parent or
the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of
any such right and each such right shall be deemed an ongoing right which may be asserted at any
time and from time to time.
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Annex II
FORM OF TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT
THIS TENDER AND VOTING AGREEMENT (this “Agreement”) dated June 1, 2010, is entered
into between Covidien Group S.a.r.l., a Luxembourg company (“Parent”), COV Delaware
Corporation, a Delaware corporation and direct or indirect wholly owned subsidiary of Parent
(“Purchaser”), and _____________________, (“Stockholder”), with respect to [ ] shares of common stock, par value $0.01 per share (the “Shares”), of ev3 Inc., a Delaware
corporation (the “Company”).
WITNESSETH:
WHEREAS, the Parent, the Purchaser and the Company have entered into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented, other than to lower
the price to be paid in the Offer or Merger, the “Merger Agreement”) pursuant to which the
Purchaser has agreed to make a cash tender offer as described therein and thereafter merge with and
into the Company (the “Merger”) with the result that the Company becomes a wholly owned
subsidiary of the Parent;
WHEREAS, as of the date hereof, Stockholder beneficially owns and has the power to dispose of
the Shares and has the power to vote such Shares;
WHEREAS, the Parent and the Purchaser desire to enter into this Agreement in connection with
their efforts to consummate the acquisition of the Company;
WHEREAS, Stockholder wishes to convey to Parent and Purchaser pursuant to and subject to the
terms of this Agreement beneficial ownership of only [ ] of the Shares (such number of Shares
being referred to herein as the “Permissible Number”);
WHEREAS, capitalized terms used in this Agreement and not defined have the meaning given to
such terms in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of the mutual
agreements, covenants, representations and warranties contained herein and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Certain Covenants.
Section 1.1 Lock-Up. Subject to Section 1.5, except as contemplated by the Merger
Agreement, Stockholder hereby covenants and agrees that between the date hereof and the Termination
Date, Stockholder will not (a) directly or indirectly, sell, transfer, assign, pledge, hypothecate,
tender, encumber or otherwise dispose of or limit its right to vote in any manner any of the
Shares, or agree to do any of the foregoing, or (b) take any action which would have the effect of
preventing or disabling Stockholder from performing its obligations under this Agreement.
Notwithstanding the foregoing, in connection with any transfer not involving or
relating to any Acquisition Proposal (as defined in the Merger Agreement), Stockholder may
transfer any or all of the Shares to any Affiliate, subsidiary, partner or member of Stockholder;
provided, however, that in any such case, prior to and as a condition to the
effectiveness of such transfer, (A) each Person to which any of such Shares or any interest in any
of such Shares is or may be transferred shall have executed and delivered to the Parent and the
Purchaser a counterpart to this Agreement pursuant to which such Person shall be bound by all of
the terms and provisions of this Agreement, and (B) this Agreement shall be the legal, valid and
binding agreement of such Person, enforceable against such person in accordance with its terms.
Section 1.2 No Solicitation. Between the date hereof and the Termination Date, the
Stockholder shall not, and shall not authorize or permit, any director, officer, agent,
representative, employee, affiliate, advisor, attorney, accountant or associate of Stockholder or
those of its subsidiaries (collectively, “Representatives”) to, directly or indirectly,
take any action, in its or their capacity as a stockholder of the Company, that the Company is
prohibited from taking pursuant to Section 6.3 of the Merger Agreement.
Section 1.3 Certain Events. This Agreement and the obligations hereunder will attach
to the Shares and will be binding upon any person to which legal or beneficial ownership of any or
all of the Shares passes, whether by operation of Law or otherwise, including without limitation,
the Stockholder’s successors or assigns. This Agreement and the obligations hereunder will also
attach to any additional shares of common stock issued to or acquired by the Stockholder, but such
additional shares shall not be Optioned Shares for purposes of this Agreement.
Section 1.4 Grant of Proxy; Voting Agreement.
(a) The Stockholder has revoked or terminated any proxies, voting agreements or similar
arrangements previously given or entered into with respect to the Shares and hereby grants Parent
until the Termination Date a limited irrevocable proxy to vote the Permissible Number of Shares as
to which Stockholder has voting power for Stockholder and in Stockholder’s name, place and stead,
at any annual or special meeting of the stockholders of the Company, as applicable, or at any
adjournment thereof, whether before or after the Share Acceptance Time (as defined in the Merger
Agreement), solely for the adoption of the Merger Agreement and the approval of the Merger. The
Parent hereby acknowledges that the proxy granted hereby shall not be effective for any other
purpose. The parties acknowledge and agree that neither the Parent, nor the Parent’s successors,
assigns, subsidiaries, divisions, employees, officers, directors, stockholders, agents and
affiliates shall owe any duty to, whether in law or otherwise, or incur any liability of any kind
whatsoever, including without limitation, with respect to any and all claims, losses, demands,
causes of action, costs, expenses (including reasonable attorney’s fees) and compensation of any
kind or nature whatsoever to the Stockholder in connection with or as a result of any voting by the
Parent of the Permissible Number of Shares subject to the irrevocable proxy hereby granted to the
Parent at any annual or special meeting of the stockholders of the Company for the purpose set
forth herein.
(b) During the term of this Agreement, Stockholder agrees to vote the Shares as to which it
has not given a proxy pursuant to paragraph (a) above in favor of or give its consent to, as
applicable, a proposal to adopt the Merger Agreement and thereby approve the
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Merger at any annual or special meeting of the stockholders of the Company. In addition,
notwithstanding the foregoing grant to the Parent of the irrevocable proxy on the Optioned Shares,
if the Parent elects not to exercise its rights to vote the Permissible Number of Shares pursuant
to the irrevocable proxy, Stockholder also agrees to vote the Permissible Number of Shares in favor
of or give its consent to, as applicable, a proposal to adopt the Merger Agreement and thereby
approve the Merger at any annual or special meeting of the stockholders of the Company.
(c) This irrevocable proxy shall not be terminated by any act of the Stockholder or by
operation of law (including, without limiting the foregoing, by the dissolution or liquidation of
any corporation or partnership). If between the execution hereof and the Termination Date, if any
corporation or partnership holding the Shares should be dissolved or liquidated, or if any other
such similar event or events shall occur before the Termination Date, certificates representing the
Shares shall be delivered by or on behalf of Stockholder in accordance with the terms and
conditions of the Merger Agreement and this Agreement, and actions taken by the Parent hereunder
shall be as valid as if such dissolution, liquidation or other similar event or events had not
occurred, regardless of whether or not the Parent has received notice of such dissolution,
liquidation or other event.
Section 1.5 Tender of Shares. Stockholder agrees, in exchange for the consideration
described in the Merger Agreement, to tender the Shares to the Purchaser in the Offer not later
than five (5) Business Days following the commencement of the Offer (such Shares being referred to
herein as the “Tender Shares”); provided, however, that Stockholder may
withdraw any Tender Shares so tendered above at any time following the termination or expiration of
the Offer without Purchaser purchasing all shares of common stock tendered pursuant to the Offer in
accordance with its terms; provided, further, that Stockholder shall not have any
obligation under this Section 1.5 to tender the Tender Shares into the Offer if that tender could
cause the Stockholder to incur liability under Section 16(b) of the Exchange Act.
Section 1.6 Option.
(a) On the terms and subject to the conditions set forth herein, Stockholder hereby grants to
Parent an irrevocable option (the “Option”) to purchase all of the right, title and
interest of Stockholder in and to the Permissible Number of Stockholder’s Shares (the “Optioned
Shares”) with a price per share equal to the Offer Price. Parent may exercise the Option in whole,
but not in part, if, but only if, (i) the Purchaser has acquired shares of common stock pursuant to
the Offer and (ii) Stockholder has failed to tender into the Offer at least the Permissible Number
of Shares or shall have withdrawn the tender of a number of Shares equal to or greater than the
Permissible Number in breach of this Agreement. The Parent may exercise the Option at any time
within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that the Parent is entitled to and wishes to exercise the Option, the Parent
shall send a written notice to Stockholder specifying the place and the date for the closing of
such purchase, which date shall be not more than sixty (60) days after the date of such notice;
provided that in the event that prior notification to, or approval of, any Governmental Entity is
required in connection with the exercise of the Option or there shall be in
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effect any preliminary or final injunction or other order issued by any Governmental Entity
prohibiting the exercise of the Option, the period of time during which the date of the closing may
be fixed shall be extended until the tenth (10th) day following the last date on which all required
approvals shall have been obtained, all required waiting periods shall have expired or been
terminated and any such prohibition shall have been vacated, terminated or waived.
(c) At the closing of the purchase of Stockholder’s Optioned Shares pursuant to exercise of
the Option, simultaneously with the payment by the Parent of the purchase price for Stockholder’s
Optioned Shares, such Stockholder shall deliver, or cause to be delivered, to the Purchaser
certificates representing the Optioned Shares duly endorsed to the Parent or accompanied by stock
powers or other transfer documents duly executed by the Company in blank, together with any
necessary stock transfer stamps properly affixed, free and clear of all Liens.
(d) The Parent, the Purchaser or the Company, as applicable, shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this Section 1.6 to Stockholder such
amounts as are required to be withheld under the Code or the Treasury Regulations thereunder or any
other Tax Law.
Section 1.7 Public Announcement. Stockholder shall consult with the Parent before
issuing any press releases or otherwise making any public statements with respect to the
transactions contemplated herein and shall not issue any such press release or make any such public
statement without the approval of the Parent (which approval shall not be unreasonably withheld,
conditioned or delayed), except as may be required by Law, including any filings with the
Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”). This Section 1.7 shall terminate and be null and
void upon the earlier of (a) the Termination Date and (b) consummation of the Merger.
Section 1.8 Disclosure. Stockholder hereby authorizes the Parent and the Purchaser to
publish and disclose in any announcement or disclosure required by the SEC, The Nasdaq Stock Market
or any other national securities exchange and in the Offer Documents and, if necessary, the Proxy
Statement (including all documents and schedules filed with the SEC in connection with either of
the foregoing), Stockholder’s identity and ownership of the Shares and the nature of Stockholder’s
commitments, arrangements and understandings under this Agreement. The Parent and the Purchaser
hereby authorize Stockholder to make such disclosure or filings as may be required by the SEC or
The Nasdaq Stock Market or any other national securities exchange.
2. Representations and Warranties of Stockholder. Stockholder hereby represents and
warrants to the Parent and the Purchaser, as of the date hereof and as of the date the Purchaser
purchases Tender Shares from Stockholder pursuant to the Offer, that:
Section 2.1 Ownership. As of the date hereof, Stockholder holds of record or
beneficially the Shares set forth on Schedule I, in each case, except as set forth on
Schedule I, free and clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever, other than those arising under
the securities laws or under the Company’s governance documents (collectively, “Liens”).
At the time the
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Purchaser purchases Tender Shares from Stockholder pursuant to the Offer, Stockholder will
transfer and convey to the Purchaser good and marketable title to the Shares included in the
Shares, free and clear of all Liens created by or arising through Stockholder.
Section 2.2 Authorization. Stockholder has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions contemplated hereby and has
the power to vote and the power to dispose of the Shares with no restrictions on its voting rights
or rights of disposition pertaining thereto, except as set forth in this Agreement or that may
exist pursuant to the securities laws. Stockholder has duly executed and delivered this Agreement
and this Agreement is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms, except to the extent enforceability may be limited by the
effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the
enforcement of creditors’ rights generally and the effect of general principles of equity,
regardless of whether such enforceability is considered in a proceeding at Law or in equity.
Section 2.3 No Violation. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (a) require the Stockholder to file
or register with, or obtain any permit, authorization, consent or approval of, any Governmental
Entity other than filings with the SEC pursuant to the Exchange Act, or (b) violate, or cause a
breach of or default under, or conflict with any contract, agreement or understanding, any Law
binding upon the Stockholder, except for such violations, breaches, defaults or conflicts which are
not, individually or in the aggregate, reasonably likely to have a material adverse effect on the
Stockholder’s ability to satisfy its obligations under this Agreement. As of the date hereof, no
proceedings are pending which, if adversely determined, will have a material adverse effect on the
Stockholder’s ability to vote or dispose of any of the Shares.
Section 2.4 Stockholder Has Adequate Information. Stockholder is a sophisticated
seller with respect to the Shares and has adequate information concerning the business and
financial condition of the Company to make an informed decision regarding the sale of the Shares
and has independently and without reliance upon either the Purchaser or the Parent and based on
such information as Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that neither the Purchaser nor the Parent has made
and neither makes any representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Agreement. Stockholder acknowledges that the
agreements contained herein with respect to the Shares held by Stockholder are irrevocable (prior
to the Termination Date).
Section 2.5 No Setoff. The Stockholder has no liability or obligation related to or
in connection with the Shares other than the obligations to the Parent and the Purchaser as set
forth in this Agreement.
3. Representations and Warranties of the Parent and the Purchaser. The Parent and
the Purchaser hereby represent and warrant to Stockholder, as of the date hereof that:
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Section 3.1 Authorization. The Parent and the Purchaser have all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The Parent and the Purchaser have duly executed and delivered this Agreement
and this Agreement is a legal, valid and binding agreement of each of the Parent and the Purchaser,
enforceable against each of the Parent and the Purchaser in accordance with its terms, except to
the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization,
insolvency, moratorium or other Laws affecting the enforcement of creditors’ rights generally and
the effect of general principles of equity, regardless of whether such enforceability is considered
in a proceeding at Law or in equity.
Section 3.2 No Violation. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate, or cause a breach of or default
under, any contract or agreement, any statute or law, or any judgment, decree, order, regulation or
rule of any Governmental Entity, except for such violations, breaches or defaults which are not
reasonably likely to have a material adverse effect on either the Parent’s or the Purchaser’s
ability to satisfy its obligations under this Agreement.
4. Survival of Representations and Warranties. None of the representations and
warranties contained in this Agreement shall survive the Termination Date. The respective
representations and warranties of Stockholder, the Parent and the Purchaser contained herein shall
not be deemed waived or otherwise affected by any investigation made by the other party hereto.
5. Specific Performance. Stockholder acknowledges that the Parent and the Purchaser
will be irreparably harmed and that there will be no adequate remedy at law for a violation of any
of the covenants or agreements of Stockholder which are contained in this Agreement. It is
accordingly agreed that, in addition to any other remedies which may be available to the Parent and
the Purchaser upon the breach by Stockholder of such covenants and agreements, the Parent and the
Purchaser shall have the right to obtain injunctive relief to restrain any breach or threatened
breach of such covenants or agreements or otherwise to obtain specific performance of any of such
covenants or agreements.
6. Miscellaneous.
Section 6.1 Term. This Agreement and all obligations hereunder shall terminate upon
the earlier of (a) the Effective Time, (b) the End Date, (c) the date of any modification, waiver,
change or amendment of the Offer or the Merger Agreement executed after the date hereof that
results in a (i) a decrease in the Offer Price or Merger Consideration (each as defined in the
Merger Agreement on the date hereof) or (ii) a change in the form of consideration to be paid in
the Offer or in the form of Merger Consideration, and (d) the termination of the Merger Agreement
in accordance with its terms (the earliest of (a), (b), (c) and (d), the “Termination
Date”). Upon termination of this Agreement, no party shall have any further obligations or
liabilities under this Agreement; provided, however, that (i) nothing set forth in
this Section 6.1 shall relieve any party from liability for any willful breach of this Agreement
prior to termination hereof, and (ii) the provisions of this Article 6 shall survive any
termination of this Agreement.
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Section 6.2 Capacity as a Stockholder; Fiduciary Duties. Notwithstanding anything in
this Agreement to the contrary: (a) the Stockholder makes no agreement or understanding herein in
any capacity other than in the Stockholder’s capacity as a record holder and beneficial owner of
Shares, and not in such Stockholder’s capacity as a director, officer or employee of the Company or
any of Company Subsidiaries or in such Stockholder’s capacity as a trustee or fiduciary of any
employee benefit plan or trust, and (b) nothing herein will be construed to limit or affect any
action or inaction by the Stockholder or any Representative of the Stockholder, as applicable,
serving on the Company Board or on the board of directors of any Subsidiary of the Company or as an
officer or fiduciary of the Company, any Subsidiary of the Company or any employee benefit plan or
trust, acting in such person’s capacity as a director, officer, trustee and/or fiduciary.
Section 6.3 Expenses. Each of the parties hereto shall pay its own expenses incurred
in connection with this Agreement. Each of the parties hereto warrants and covenants to the others
that it will bear all claims for brokerage fees attributable to action taken by it.
Section 6.4 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective representatives and
permitted successors and assigns.
Section 6.5 Entire Agreement. This Agreement contains the entire understanding of the
parties and supersedes all prior agreements and understandings between the parties with respect to
its subject matter. This Agreement may be amended only by a written instrument duly executed by
the parties hereto.
Section 6.6 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 6.7 Assignment. Without limitation to Section 1.1 and subject to this Section
6.7, this Agreement shall be binding upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written approval of the
other parties; provided, however, that the Purchaser may freely assign, in its sole
discretion and without the consent of any other party, any or all of its rights, interests and
obligations hereunder to (i) the Parent, (ii) the Parent and one or more direct or indirect
wholly-owned Subsidiaries of the Parent, (iii) one or more direct or indirect wholly-owned
Subsidiaries of the Parent, or (iv) any direct or indirect holder of five percent (5%) or more of
the capital stock of the Parent or any Subsidiary thereof (each an “Assignee”). Any such
Assignee may thereafter assign, in its sole discretion and without the consent of any other party,
any or all of its rights, interests, and obligations hereunder to one or more additional Assignees;
provided, however, that (x) in no event will any assignment to an Assignee cause a
material delay or impair the ability of the Parent and the Purchaser to consummate the Transactions
and (y) in connection with any assignment to an Assignee, the Parent and the Purchaser (and the
assignor, if applicable) shall agree to remain liable for the performance by the Parent and the
Purchaser (and such assignor, if applicable) of their obligation hereunder.
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Section 6.8 Counterparts. This Agreement may be executed in one or more counterparts
(including by facsimile or by an electronic scan delivered by electronic mail), each of which shall
be an original, but each of which together shall constitute one and the same Agreement.
Section 6.9 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when delivered in person, by overnight
courier, by facsimile transmission (with receipt confirmed by telephone or by automatic
transmission report) or by electronic mail, or two business days after being sent by registered or
certified mail (postage prepaid, return receipt requested), as follows:
(a) | if to the Parent or the Purchaser, to: |
x/x Xxxxxxxx 00 Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxxxx 00000 |
|||
Attn:
Xxxxxxx Xxxxxxxxx, Vice President — Chief Mergers & Acquisitions Counsel |
|||
Email: xxxxxxx.xxxxxxxxx@xxxxxxxx.xxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
with a copy to: Ropes & Xxxx LLP Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 Attn: Xxxx X. Xxxxxxxx Email: xxxx.xxxxxxxx@xxxxxxxxx.xxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 |
|||
(b) | If to Stockholder, to the addresses indicated on Schedule I hereto. |
Any party may by notice given in accordance with this Section 6.9 to the other parties
designate updated information for notices hereunder.
Section 6.10 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the Laws of the State of Delaware, without regard to its principles of
conflicts of Laws.
Section 6.11 Enforceability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect. Upon a determination that any term
or other provision is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner to the end that the transactions
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contemplated hereby are fulfilled to the fullest extent possible and, absent agreement among
the parties, a court is authorized to so modify this Agreement.
Section 6.12 Further Assurances. From time to time, at the Parent’s request and
without further consideration, subject to the terms and conditions of this Agreement, Stockholder
shall execute and deliver to the Parent such documents and take such action as the Parent may
reasonably request in order to consummate more effectively the transactions contemplated hereby and
to vest in the Parent good, valid and marketable title to the Shares.
Section 6.13 Remedies Not Exclusive. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity will be cumulative and
not alternative, and the exercise of any thereof by either party will not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
Section 6.14 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.15 No Agreement Until Executed. Irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be
deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto
unless and until (a) the Company Board has approved, for purposes of any applicable anti-takeover
laws and regulations, and any applicable provision of the Company’s certificate of incorporation,
the possible acquisition of the Shares by the Parent and the Purchaser pursuant to the Merger
Agreement, (b) the Merger Agreement is executed by all parties thereto, and (c) this Agreement is
executed by all parties hereto.
[The rest of this page has intentionally been left blank]
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IN WITNESS WHEREOF, the Parent, the Purchaser and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
COVIDIEN GROUP S.A.R.L. |
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By: | ||||
Name: | ||||
Title: | ||||
COV DELAWARE CORPORATION |
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By: | ||||
Name: | ||||
Title: |
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STOCKHOLDER:
Name: | ||||
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