EXHIBIT (c)(1)
CONFORMED COPY
AGREEMENT AND PLAN OF MERGER
dated as of
April 9, 1997
among
MICROCOM, INC.
COMPAQ COMPUTER CORPORATION
and
COMPAQ-BOSTON, INC.
TABLE OF CONTENTS
Page
ARTICLE 1
THE OFFER
SECTION 1.1. The Offer...................................................1
SECTION 1.2. Company Action..............................................2
SECTION 1.3. Directors...................................................3
ARTICLE 2
THE MERGER
SECTION 2.1. The Merger..................................................3
SECTION 2.2. Conversion of Shares........................................4
SECTION 2.3. Surrender and Payment.......................................4
SECTION 2.4. Dissenting Shares...........................................6
SECTION 2.6. Employee Stock Purchase Plan................................7
SECTION 2.7. Option Restricted Stock.....................................7
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.1. Articles of Organization....................................8
SECTION 3.2. Bylaws......................................................8
SECTION 3.3. Directors and Officers......................................8
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
SECTION 4.1. Corporate Existence and Power...............................8
SECTION 4.2. Corporate Authorization.....................................9
SECTION 4.3. Governmental Authorization..................................9
SECTION 4.4. Non-Contravention...........................................9
SECTION 4.5. Capitalization.............................................10
SECTION 4.6. Subsidiaries...............................................10
SECTION 4.7. SEC Filings................................................11
SECTION 4.8. Financial Statements.......................................11
SECTION 4.9. Disclosure Documents.......................................12
SECTION 4.10. Absence of Certain Changes.................................12
SECTION 4.11. No Undisclosed Material Liabilities........................14
SECTION 4.12. Litigation.................................................14
SECTION 4.13. Taxes......................................................14
SECTION 4.14. ERISA......................................................15
SECTION 4.15. Compliance with Laws.......................................16
SECTION 4.16. Finders' Fees..............................................16
SECTION 4.17. Patents and Other Proprietary Rights.......................16
SECTION 4.18. Environmental Matters......................................17
SECTION 4.19. Approvals; Antitakeover Provisions.........................18
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
OF BUYER
SECTION 5.1. Corporate Existence and Power..............................19
SECTION 5.2. Corporate Authorization....................................19
SECTION 5.3. Governmental Authorization.................................19
SECTION 5.4. Non-Contravention..........................................19
SECTION 5.5. Disclosure Documents.......................................20
SECTION 5.6. Finders' Fees..............................................20
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.1. Conduct of the Company.....................................20
SECTION 6.2. Stockholder Meeting; Proxy Material........................21
SECTION 6.3. Access to Information......................................21
SECTION 6.4. Other Offers...............................................22
ARTICLE 7
COVENANTS OF BUYER
SECTION 7.1. Obligations of Merger Subsidiary...........................23
SECTION 7.2. Voting of Shares...........................................23
SECTION 7.3. Director and Officer Liability.............................23
SECTION 7.4. Tax Certification..........................................23
ARTICLE 8
COVENANTS OF BUYER
AND THE COMPANY
SECTION 8.1. Best Efforts...............................................24
SECTION 8.2. Certain Filings............................................24
SECTION 8.3. Public Announcements.......................................24
SECTION 8.4. Notices of Certain Events..................................24
SECTION 8.5. Employee Benefits..........................................25
SECTION 8.6. Further Assurances.........................................25
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.1. Conditions to the Obligations of Each Party................25
ARTICLE 10
TERMINATION
SECTION 10.1. Termination...............................................26
SECTION 10.2. Effect of Termination.....................................26
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Notices...................................................26
SECTION 11.2. Survival of Representations and Warranties................27
SECTION 11.3. Amendments; No Waivers....................................28
SECTION 11.4. Fees and Expenses.........................................28
SECTION 11.5. Successors and Assigns....................................29
SECTION 11.6. Governing Law.............................................29
SECTION 11.7. Counterparts; Effectiveness...............................29
SECTION 11.8. Entire Agreement..........................................29
SECTION 11.9. Definitions...............................................30
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of April 9, 1997 among
Microcom, Inc., a Massachusetts corporation (the "Company"), Compaq Computer
Corporation, a Delaware corporation ("Buyer"), and Compaq-Boston, Inc., a
Massachusetts corporation and a wholly-owned subsidiary of Buyer ("Merger
Subsidiary").
The parties hereto agree as follows:
ARTICLE 1
THE OFFER
SECTION 1.1. The Offer. (a) Provided that nothing shall have
occurred that would result in a failure to satisfy any of the conditions set
forth in Annex I hereto, Merger Subsidiary shall, as promptly as practicable
after the date hereof, but in no event later than five business days following
the public announcement of the terms of this Agreement, commence an offer (the
"Offer") to purchase all of the outstanding shares (the "Shares") of common
stock, $0.01 par value per share, of the Company (the "Common Stock") at a
price of $16.25 per Share, net to the seller in cash. The Offer shall be
subject to the condition that a number of Shares which, together with the
Shares then owned by Buyer, represents at least a majority of the Shares
outstanding on a fully diluted basis shall be validly tendered in accordance
with the terms of the Offer prior to the expiration date of the Offer and not
withdrawn (the "Minimum Condition") and to the other conditions set forth in
Annex I hereto. Merger Subsidiary expressly reserves the right to waive the
Minimum Condition or any of the other conditions to the Offer and to make any
change in the terms or conditions of the Offer; provided that no change may be
made which changes the form of consideration to be paid or decreases the price
per Share or the number of Shares sought in the Offer or which imposes
conditions to the Offer in addition to those set forth in Annex I or amends
the terms and conditions of the Offer in a manner adverse to the Company.
(b) As soon as practicable on the date of commencement of the
Offer, Merger Subsidiary shall file with the SEC (as defined in Section 4.7) a
Tender Offer Statement on Schedule 14D-1 with respect to the Offer which will
contain the offer to purchase and form of the related letter of transmittal
(together with any supplements or amendments thereto, collectively the
"Offer Documents"). Buyer and the Company each agrees promptly to correct
any information provided by it for use in the Offer Documents if and to the
extent that it shall have become false or misleading in any material
respect. Merger Subsidiary agrees to take all steps necessary to cause the
Offer Documents as so corrected to be filed with the SEC and to be
disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws. The Company and its
counsel shall be given an opportunity to review and comment on the Schedule
14D-1 prior to its being filed with the SEC.
SECTION 1.2. Company Action. (a) The Company hereby consents to
the Offer and represents that its Board of Directors, at a meeting duly called
and held, has (i) unanimously determined that this Agreement and the
transactions contemplated hereby, including the Offer and the Merger (as
defined in Section 2.1), are fair to and in the best interest of the Company's
stockholders, (ii) unanimously approved this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, which approval
satisfies in full any applicable requirements of the Business Corporation Law
of the Commonwealth of Massachusetts ("Massachusetts Law" or "MBCL") and any
applicable requirements of Chapters 110C, 110D, 110E and 110F of the
Massachusetts General Laws, and (iii) unanimously resolved, except as may be
required, in response to an unsolicited bona fide written Acquisition Proposal
(as defined in Section 6.4), in order to comply with the fiduciary duties of
the Board of Directors under applicable law as advised in writing by Xxxxxx,
Xxxx & Xxxxxxx ("Company Counsel"), to recommend acceptance of the Offer and
approval and adoption of this Agreement and the Merger by its stockholders.
The Company further represents that Xxxxxx Xxxxxxx & Co. Incorporated has
delivered to the Company's Board of Directors its written opinion that the
consideration to be paid in the Offer and the Merger is fair to the holders of
Shares from a financial point of view. The Company has been advised that all
of its directors and executive officers intend either to tender their Shares
pursuant to the Offer or to vote in favor of the Merger. The Company will
promptly furnish Buyer with a list of its stockholders, mailing labels and any
available listing or computer file containing the names and addresses of all
record holders of Shares and lists of securities positions of Shares held in
stock depositories, in each case true and correct as of the most recent
practicable date, and will provide to Buyer such additional information
(including, without limitation, updated lists of stockholders, mailing labels
and lists of securities positions) and such other assistance as Buyer may
reasonably request in connection with the Offer. Buyer will return such
materials promptly if the Offer is not consummated.
(b) As soon as practicable on the day that the Offer is commenced,
the Company will file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (the "Schedule 14D-9") which shall reflect the recommendations
of the Company's Board of Directors referred to above. The Company and Buyer
each agree promptly to correct any information provided by it for use in the
Schedule 14D-9 if and to the extent that it shall have become false or
misleading in any material respect. The Company agrees to take all steps
necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC
and to be disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws. Buyer and its counsel shall
be given an opportunity to review and comment on the Schedule 14D-9 prior to
its being filed with the SEC.
SECTION 1.3. Directors. (a) Effective upon the acceptance for
payment pursuant to the Offer of a number of Shares that satisfies the Minimum
Condition, Buyer shall be entitled to designate the number of directors,
rounded up to the next whole number, on the Company's Board of Directors that
equals the product of (i) the total number of directors on the Company's Board
of Directors (giving effect to the election of any additional directors
pursuant to this Section) multiplied by (ii) the percentage that the number of
Shares beneficially owned by Buyer (including Shares accepted for payment)
bears to the total number of Shares outstanding; and the Company shall take
all action necessary to cause Buyer's designees to be elected or appointed to
the Company's Board of Directors, including, without limitation, increasing
the number of directors and seeking and accepting resignations of incumbent
directors. At such times, the Company will use its best efforts to cause
individuals designated by Buyer to constitute the same percentage as such
individuals represent on the Company's Board of Directors of (A) each committee
of the Board and (B) each board of directors (and committee thereof) of each
Subsidiary (as defined in Section 4.6). Notwithstanding the foregoing, the
Company shall use its best efforts to cause at least three members of the
Company's Board of Directors as of the date hereof who are not employees of
the Company (the "Continuing Directors") to remain members of the Board of
Directors until the Effective Time (as defined in Section 2.1(b)), and the
Buyer consents thereto.
(b) The Company's obligations to appoint designees to the Board
of Directors shall be subject to Section 14(f) of the Exchange Act (as defined
in Section 4.3) and Rule 14f-1 promulgated thereunder. The Company shall
promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in
order to fulfill its obligations under this Section and shall include in the
Schedule 14D-9 such information with respect to the Company and its officers
and directors as is required under Section 14(f) and Rule 14f-1 to fulfill its
obligations under this Section. Buyer will supply to the Company in writing
and be solely responsible for any information with respect to itself and its
nominees, officers, directors and affiliates required by Section 14(f) and
Rule 14f-1.
ARTICLE 2
THE MERGER
SECTION 2.1. The Merger. (a) At the Effective Time (as defined
below), Merger Subsidiary shall be merged (the "Merger") with and into the
Company in accordance with Section 78 of the MBCL, whereupon the separate
existence of Merger Subsidiary shall cease, and the Company shall be the
surviving corporation (the "Surviving Corporation").
(b) As soon as practicable after satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger, the Company and
Merger Subsidiary will file articles of merger ("Articles of Merger") with the
Secretary of State of the Commonwealth of Massachusetts and make all other
filings or recordings required by Massachusetts Law in connection with the
Merger. The Merger shall become effective at such time as the Articles of
Merger are duly filed with the Secretary of State of the Commonwealth of
Massachusetts (the "Effective Time").
(c) From and after the Effective Time, the Surviving Corporation
shall possess all the rights, privileges, powers and franchises and be subject
to all of the restric
tions, disabilities and duties of the Company and Merger Subsidiary, all as
provided under Massachusetts Law.
SECTION 2.2. Conversion of Shares. At the Effective Time:
(a) each Share held by the Company as treasury stock or owned by
Buyer or any subsidiary of Buyer immediately prior to the Effective Time
shall be canceled, and no payment shall be made with respect thereto;
(b) each share of common stock of Merger Subsidiary outstanding
immediately prior to the Effective Time shall be converted into and
become one share of common stock of the Surviving Corporation with the
same rights, powers and privileges as the shares so converted and shall
constitute the only outstanding shares of capital stock of the Surviving
Corporation; and
(c) each Share outstanding immediately prior to the Effective
Time shall, except as otherwise provided in Section 2.2(a) or as
provided in Section 2.4 with respect to Shares as to which appraisal
rights have been exercised or as provided in Section 2.7 with respect to
Option Restricted Stock, be converted into the right to receive $16.25
in cash, without interest (the "Merger Consideration").
SECTION 2.3. Surrender and Payment. (a) Prior to the Effective
Time, Buyer shall appoint an agent (the "Exchange Agent") for the purpose
of exchanging certificates representing Shares for the Merger
Consideration. Buyer will make available to the Exchange Agent, in such
amounts as may be needed from time to time, the Merger Consideration to be
paid in respect of the Shares. Promptly after the Effective Time, Buyer
will send, or will cause the Exchange Agent to send, to each holder of
Shares at the Effective Time a letter of transmittal for use in such
exchange (which shall specify that the delivery shall be effected, and risk
of loss and title shall pass, only upon proper delivery of the certificates
representing Shares to the Exchange Agent).
(b) Each holder of Shares that have been converted into a right
to receive the Merger Consideration, upon surrender to the Exchange Agent
of a certificate or certificates representing such Shares, together with a
properly completed letter of transmittal covering such Shares, will be
entitled to receive the Merger Consideration payable in respect of such
Shares. From and after the Effective Time, all Shares which have been so
converted shall no longer be outstanding and shall automatically be
canceled and retired, and each such certificate shall, after the Effective
Time, represent for all purposes, only the right to receive such Merger
Consideration.
(c) If any portion of the Merger Consideration is to be paid to a
Person other than the registered holder of the Shares represented by the
certificate or certificates surrendered in exchange therefor, it shall be a
condition to such payment that the certificate or certificates so surrendered
shall be properly endorsed or otherwise be in proper form for transfer and
that the Person requesting such payment shall pay to the Exchange Agent any
transfer or other taxes required as a result of such payment to a Person other
than the registered holder of such Shares or establish to the satisfaction of
the Exchange Agent that such tax has been paid or is not payable. For
purposes of this Agreement, "Person" means an individual, a corporation, a
limited liability company, a partnership, an association, a trust or any other
entity or organization, including a government or political subdivision or any
agency or instrumentality thereof.
(d) After the Effective Time, there shall be no further
registration of transfers of Shares. If, after the Effective Time,
certificates representing Shares are presented to the Surviving Corporation,
they shall be canceled and exchanged for the consideration provided for, and
in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 2.3(a) that remains unclaimed by the
holders of Shares six months after the Effective Time shall be returned to
Buyer, upon demand, and any such holder who has not exchanged Shares for the
Merger Consideration in accordance with this Section 2.3 prior to that time
shall thereafter look only to Buyer for payment of the Merger Consideration in
respect of Shares. Notwithstanding the foregoing, Buyer shall not be liable
to any holder of Shares for any amount paid to a public official pursuant to
applicable abandoned property laws. Any amounts remaining unclaimed by
holders of Shares two years after the Effective Time (or such earlier date
immediately prior to such time as such amounts would otherwise escheat to or
become property of any governmental entity) shall, to the extent permitted by
applicable law, become the property of Buyer free and clear of any claims or
interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 2.3(a) to pay for Shares for which
appraisal rights have been perfected shall be returned to Buyer, upon demand.
SECTION 2.4. Dissenting Shares. Notwithstanding Section 2.2, Shares
which are held of record by stockholders who shall not have voted such Shares
in favor of the Merger, if applicable, and who shall have properly exercised
rights to demand payment of the fair value of such Shares in accordance with
Sections 86 through 98, inclusive, of the MBCL shall not be converted into the
right to receive the Merger Consideration, but the holders thereof instead
shall be entitled to payment of the fair value of such Shares in accordance
with the provisions of Sections 86 to 92, inclusive, of the MBCL, provided,
however, that (i) if such a holder fails to file a notice of election to
dissent in accordance with Section 86 of the MBCL or, after filing such notice
of election, subsequently delivers an effective written withdrawal of such
notice or fails to establish his entitlement to appraisal rights as provided
in Sections 87 through 98, inclusive, of the MBCL, or (ii) if such holder
shall otherwise lose his appraisal rights, then in either of such cases such
Shares shall be treated as if they had been converted as of the Effective Time
into a right to receive the Merger Consideration. The Company shall give
Buyer prompt notice of any demands received by the Company for the payment of
fair value for Shares, and Buyer shall have the right to participate in all
negotiations and proceedings with respect to such demands. The Company shall
not, except with the prior written consent of Buyer, make any payment with
respect to, or settle or offer to settle, any such demands.
SECTION 2.5 Stock Options. (a) At the Effective Time, each option
to purchase shares of Common Stock outstanding under any employee stock option
or compensation plan or arrangement of the Company (except for the Microcom,
Inc. 1987 Employee Stock Purchase Plan (the "Company Stock Purchase Plan"))
that is vested and exercisable (including any option that becomes vested
and exercisable by its terms as a result of the transactions contemplated
hereby) held by (i) the Chief Executive Officer of the Company, (ii) the
Chief Financial Officer of the Company or (iii) any director or former
director of the Company shall be canceled, and Buyer shall pay each such
holder in cash at the Effective Time for each such option an amount
determined by multiplying (A) the excess, if any, of the Merger
Consideration over the applicable exercise price per share of such option
by (B) the number of shares to which such option relates.
(b) Except as otherwise provided in Section 2.5(a) above, at the
Effective Time, each option to purchase shares of Common Stock outstanding
under any employee stock option or compensation plan or arrangement of the
Company (except for the Company Stock Purchase Plan), whether or not vested or
exercisable, shall be canceled, and Buyer shall issue in exchange therefor an
option to purchase shares of common stock of Buyer (a "Substitute Option").
The number of shares of Buyer's common stock subject to such Substitute Option
and the exercise price thereunder shall be computed in compliance with the
requirements of Section 424(a) of the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder (the "Code").
Such Substitute Option shall vest in accordance with the same schedule and
shall have the same term as the original option in respect of which it is
granted, and shall otherwise be subject to all of the other terms and
conditions of options granted under the employee stock option or compensation
plan or arrangement of Buyer. The Substitute Option will not qualify as an
incentive stock option under Section 422 of the Code. Notwithstanding the
foregoing, in the case of any Substitute Option issued in exchange for an
option exercisable for shares of Common Stock which shares would upon
exercise, as of the Effective Time, be subject to contractual forfeiture or
resale restrictions ("Forfeiture Provisions"), the Substitute Option shall
become exercisable according to a schedule that mirrors the expiration of such
Forfeiture Provisions, but the shares of Buyer's common stock acquired upon
exercise of the Substitute Option shall not be subject to Forfeiture
Provisions.
(c) Prior to the Effective Time, the Company shall take all actions
(including, if appropriate, amending the terms of the Company's stock option
or compensation plans or arrangements) that are necessary to give effect to
the transactions contemplated by Sections 2.5(a) and 2.5(b).
SECTION 2.6 Employee Stock Purchase Plan. (a) As of the Effective
Time, the Company Stock Purchase Plan shall be terminated. Buyer shall pay
each participant in any current offering under such Plan in cash at or
promptly after the Effective Time, in cancellation of all rights under such
Plan, the amount of such participant's account balance under the Plan.
(b) Prior to the Effective Time, the Company shall take all actions
(including, if appropriate, amending the terms of the Company Stock Purchase
Plan) that are necessary to give effect to the transactions contemplated by
Section 2.6(a).
SECTION 2.7 Option Restricted Stock. The provisions of this Section
2.7 shall apply to each share of Common Stock acquired upon exercise of an
option granted under any stock option or incentive plan of the Company that
as of the Effective Date is subject to Forfeiture Provisions ("Option
Restricted Stock"). Notwithstanding Section 2.2, the Option Restricted
Stock shall not be tendered by any holder thereof into the Offer and shall
be canceled immediately prior to the Effective Time. In consideration of
such forbearance and cancellation, Buyer shall grant, as of the Effective
Time, to each former holder of Option Restricted Stock, a number of shares
of Buyer common stock having a market value, based on the most recent per
share closing price of Buyer common stock on the New York Stock Exchange
prior to the Effective Date, equal to the product of (i) the number of
shares of Option Restricted Stock formerly held by such holder and (ii) the
Merger Consideration. Such Buyer common stock shall be subject to the same
Forfeiture Provisions as applied to the Option Restricted Stock immediately
prior to the cancellation thereof. The Company shall use its best efforts
to obtain such consents by the affected holders of Option Restricted Stock
as are necessary to effect the provisions of this Section 2.7.
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.1. Articles of Organization. The Articles of
Organization of the Surviving Corporation shall be amended pursuant to the
Articles of Merger to read in their entirety as set forth in the Articles of
Organization of Merger Subsidiary, except that the name of the Surviving
Corporation shall be "Microcom, Inc."
(b) The Surviving Corporation shall initially be authorized to issue
up to 100,000 shares of its common stock, par value $.01 per share.
(c) The purposes of the Surviving Corporation shall be as set forth
in the Articles of Organization of Merger Subsidiary as in effect on the
date hereof until such time as such purposes may be amended as provided in
the Articles of Organization of the Surviving Corporation and by applicable
law.
SECTION 3.2. Bylaws. The bylaws of Merger Subsidiary in effect
at the Effective Time shall be the bylaws of the Surviving Corporation until
amended in accordance with applicable law.
SECTION 3.3. Directors and Officers. From and after the
Effective Time, until successors are duly elected or appointed and qualified
in accordance with applicable law, (a) the directors of Merger Subsidiary at
the Effective Time shall be the directors of the Surviving Corporation and (b)
the officers of the Company at the Effective Time shall be the officers of the
Surviving Corporation.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to Buyer that:
SECTION 4.1. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the Commonwealth of Massachusetts and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The Company is duly
qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the character of the property owned or leased by
it or the nature of its activities makes such qualification necessary,
except for those jurisdictions where the failure to be so qualified would
not, individually or in the aggregate, have a material adverse effect on
the financial condition, business, assets or results of operations of the
Company and the Subsidiaries taken as a whole (a "Material Adverse
Effect"). The Company has heretofore delivered to Buyer true and complete
copies of the Company's Articles of Organization and bylaws as currently in
effect.
SECTION 4.2. Corporate Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby are within the Company's
corporate powers and, except as set forth in the following sentence, have been
duly authorized by all necessary corporate action. The affirmative vote of
the holders of a majority of the Shares approving this Agreement is the only
vote of the holders of the Company's capital stock necessary to approve the
transactions contemplated by this Agreement. This Agreement constitutes a
valid and binding agreement of the Company.
SECTION 4.3. Governmental Authorization. The execution, delivery
and performance by the Company of this Agreement and the consummation of the
Merger by the Company require no action by or in respect of, or filing with,
any governmental body, agency, official or authority other than (a) the filing
of the Articles of Merger in accordance with Massachusetts Law; (b) compliance
with any applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx"); and (c) compliance with any
applicable requirements of the Securities Exchange Act of 1934 and the rules
and regulations promulgated thereunder (the "Exchange Act").
SECTION 4.4. Non-Contravention. The execution, delivery and
performance by the Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby do not and will not (a)
contravene or conflict with the Articles of Organization or bylaws of the
Company, (b) assuming compliance with the matters referred to in Section 4.3,
contravene or conflict with or constitute a violation of any provision of any
law, regulation, judgment, injunction, order or decree binding upon or
applicable to the Company or any Subsidiary, (c) constitute a default under or
give rise to a right of termination, cancellation or acceleration of any right
or obligation of the Company or any Subsidiary or to a loss of any benefit to
which the Company or any Subsidiary is entitled under any provision of any
agreement, contract or other instrument binding upon the Company or any
Subsidiary or any license, franchise, permit or other similar authorization
held by the Company or any Subsidiary, or (d) result in the creation or
imposition of any Lien on any asset of the Company or any Subsidiary except,
in the case of clauses (b), (c) and (d), for such matters as would not,
individually or in the aggregate, have a Material Adverse Effect. For
purposes of this Agreement, "Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind
in respect of such asset.
SECTION 4.5. Capitalization. The authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock, $0.01 par value per
share. As of April 9, 1997, there were outstanding 16,288,011 shares of
Common Stock and stock options to purchase an aggregate of 2,102,346 shares of
Common Stock (all of which are currently exercisable) at an average exercise
price of $8.24 per share (of which options to purchase an aggregate of 687,608
shares of Common Stock were vested). All outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are fully paid
and nonassessable. All shares of Common Stock issuable upon exercise of
outstanding stock options have been duly authorized and will have been validly
issued and will be fully paid and nonassessable. Except as set forth in this
Section and except for changes since April 9, 1997 resulting from the exercise
of stock options and purchase rights outstanding on such date, there are
outstanding (a) no shares of capital stock or other voting securities of the
Company, (b) no securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company and (c) no options
or other rights to acquire from the Company, and no obligation of the Company
to issue, any capital stock, voting securities or securities convertible into
or exchangeable for capital stock or voting securities of the Company (the
items in clauses (a), (b) and (c) being referred to collectively as the
"Company Securities"). There are no outstanding obligations of the Company or
any Subsidiary to repurchase, redeem or otherwise acquire any Company
Securities.
SECTION 4.6. Subsidiaries. (a) Each Subsidiary is a corporation
duly incorporated, validly existing and, if applicable, in good standing under
the laws of its jurisdiction of incorporation, has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except for those jurisdictions
where failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect. For purposes of this Agreement, "Subsidiary"
means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are directly or
indirectly owned by the Company. All Subsidiaries and their respective
jurisdictions of incorporation are identified in the Company's annual report
on Form 10-K for the fiscal year ended March 31, 1996 (the "Company 10-K").
(b) All of the outstanding capital stock of, or other voting
securities or ownership interests in, each Subsidiary, is owned by the
Company, directly or indirectly, free and clear of any Lien and free of any
other limitation or restriction (including any restriction on the right to
vote, sell or otherwise dispose of such stock or other securities or ownership
interests). There are no outstanding (i) securities of the Company or any
Subsidiary convertible into or exchangeable for shares of capital stock or
other voting securities or ownership interests in any Subsidiary and (ii)
options or other rights to acquire from the Company or any Subsidiary, or
other obligation of the Company or any Subsidiary to issue, any capital stock,
voting securities or other ownership interests in, or any securities
convertible into or exchangeable for any capital stock, voting securities or
ownership interests in, any Subsidiary (the items in clauses (i) and (ii)
being referred to collectively as the "Subsidiary Securities"). There are no
outstanding obligations of the Company or any Subsidiary to repurchase, redeem
or otherwise acquire any outstanding Subsidiary Securities.
SECTION 4.7. SEC Filings. (a) The Company has delivered to
Buyer (i) the Company's annual reports on Form 10-K for its fiscal years ended
March 31, 1994, 1995, and 1996, (ii) its quarterly report on Form 10-Q for its
fiscal quarter ended December 31, 1996 (the "Company 10-Q"), (iii) its proxy
or information statements relating to meetings of, or actions taken without a
meeting by, the stockholders of the Company held since March 31, 1996 and (iv)
all of its other reports, statements, schedules and registration statements
filed with the Securities and Exchange Commission (the "SEC") since March 31,
1996.
(b) As of its filing date, each such report or statement filed
pursuant to the Exchange Act did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances under which
they were made, not misleading.
(c) Each such registration statement, as amended or supplemented,
if applicable, filed pursuant to the Securities Act of 1933 as of the date
such statement or amendment became effective did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
SECTION 4.8. Financial Statements. The audited consolidated
financial statements and unaudited consolidated interim financial statements
of the Company included in its annual reports on Form 10-K referred to in
Section 4.7 and the Company 10-Q fairly present, in conformity with generally
accepted accounting principles applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and their
consolidated results of operations and cash flows for the periods then ended
(subject to normal year-end adjustments in the case of any unaudited interim
financial statements). For purposes of this Agreement, "Balance Sheet" means
the consolidated balance sheet of the Company as of December 31, 1996 set
forth in the Company 10-Q and "Balance Sheet Date" means December 31, 1996.
SECTION 4.9. Disclosure Documents. (a) Each document required to
be filed by the Company with the SEC in connection with the transactions
contemplated by this Agreement (the "Company Disclosure Documents"),
including, without limitation, the Schedule 14D-9, the proxy or information
statement of the Company (the "Company Proxy Statement"), if any, to be filed
with the SEC in connection with the Merger, and any amendments or supplements
thereto will, when filed, comply as to form in all material respects with the
applicable requirements of the Exchange Act.
(b) At the time the Company Proxy Statement or any amendment or
supplement thereto is first mailed to stockholders of the Company and at the
time such stockholders vote on adoption of this Agreement, the Company Proxy
Statement, as supplemented or amended, if applicable, will not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. At the time of the
filing of any Company Disclosure Document other than the Company Proxy
Statement, at the time of any distribution thereof and at the time of
consummation of the Offer, such Company Disclosure Document will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties contained in this Section 4.9(b) will not apply to statements
or omissions included in the Company Disclosure Documents based upon
information furnished to the Company in writing by Buyer specifically for use
therein.
(c) The information with respect to the Company or any Subsidiary
that the Company furnishes to Buyer in writing specifically for use in the
Offer Documents will not, at the time of the filing thereof, at the time of
any distribution thereof and at the time of 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.
SECTION 4.10. Absence of Certain Changes. Except as disclosed in
writing to Buyer prior to the date hereof, since the Balance Sheet Date, the
Company and Subsidiaries have conducted their business in the ordinary course
consistent with past practice and there has not been:
(a) any event, occurrence or development or state of
circumstances or facts which has had or could reasonably be expected to
have a Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock of the
Company, or any repurchase, redemption or other acquisition by the
Company or any Subsidiary of any outstanding shares of capital stock or
other securities of, or other ownership interests in, the Company or any
Subsidiary;
(c) any amendment of any material term of any outstanding
security of the Company or any Subsidiary;
(d) any incurrence, assumption or guarantee by the Company or any
Subsidiary of any indebtedness for borrowed money other than in the
ordinary course of business and in amounts and on terms consistent with
past practices;
(e) any creation or assumption by the Company or any Subsidiary
of any Lien on any material asset other than in the ordinary course of
business consistent with past practices;
(f) any making of any loan, advance or capital contributions to
or investment in any Person other than loans, advances or capital
contributions to or investments in wholly-owned Subsidiaries made in the
ordinary course of business consistent with past practices or any
amendment of the terms of any loan to executive officers or directors;
(g) any damage, destruction or other casualty loss (whether or
not covered by insurance) affecting the business or assets of the
Company or any Subsidiary which, individually or in the aggregate, has
had or could reasonably be expected to have a Material Adverse Effect;
(h) any transaction or commitment made, or any contract or
agreement entered into, by the Company or any Subsidiary relating to its
assets or business (including the acquisition or disposition of any
assets) or any relinquishment by the Company or any Subsidiary of any
contract or other right, in either case, material to the Company and the
Subsidiaries taken as a whole, other than transactions and commitments
in the ordinary course of business consistent with past practice and
those contemplated by this Agreement;
(i) any change in any method of accounting or accounting practice
by the Company or any Subsidiary, except for any such change required by
reason of a concurrent change in generally accepted accounting
principles or in Regulation S-X promulgated under the Exchange Act;
(j) any tax election, other than those consistent with past
practice, not required by law or any settlement or compromise of any
tax liability in either case that is material to the Company and the
Subsidiaries;
(k) any (i) grant of any severance or termination pay to any
director, officer or employee of the Company or any Subsidiary, (ii)
increase in benefits payable under any existing severance or termination
pay policies or employment agreements, (iii) entering into of any
employment, deferred compensation or other similar agreement (or any
amendment to any such existing agreement) with any director, officer or
employee of the Company or any Subsidiary or (iv) increase in
compensation, bonus or other benefits payable to directors, officers or
employees of the Company or any Subsidiary, other than any such
increases payable to employees other than directors or officers in the
ordinary course of business consistent with past practice; or
(l) any labor dispute, other than routine individual grievances,
or any activity or proceeding by a labor union or representative thereof
to organize any employees of the Company or any Subsidiary, which
employees were not subject to a collective bargaining agreement at the
Balance Sheet Date, or any lockouts, strikes, slowdowns, work stoppages
or threats thereof by or with respect to such employees.
SECTION 4.11. No Undisclosed Material Liabilities. There are no
material liabilities or obligations of the Company or any Subsidiary of any
kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or
set of circumstances which could reasonably be expected to result in such a
liability or obligation, other than:
(a) liabilities or obligations disclosed or provided for in the
Balance Sheet;
(b) liabilities or obligations incurred in the ordinary course of
business consistent with past practice since the Balance Sheet
Date, which in the aggregate are not material to the Company and
the Subsidiaries, taken as a whole; and
(c) liabilities or obligations under this Agreement.
SECTION 4.12. Litigation. Except as set forth in the Company 10-K,
there is no action, suit, investigation or proceeding pending, or to the
knowledge of the Company threatened, against or affecting the Company or any
Subsidiary or any of their respective properties or any of their respective
officers or directors in their capacity as officers or directors of the
Company (or any basis therefor) before any court or arbitrator or before or by
any governmental body, agency or official (x) as of the date hereof, or (y)
which could reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
SECTION 4.13. Taxes. The Company has filed all material tax
returns, statements, reports and forms required to be filed with any tax
authority when due and in accordance with all applicable laws, and all taxes
shown as due and payable thereon have been timely paid, or withheld and
remitted, to the appropriate taxing authority. No deficiency in payment of
any taxes for any period has been asserted by any taxing authority which
remains unsettled at the date hereof except for deficiencies which would not
have a Material Adverse Effect. The Company and Subsidiaries do not own any
interest in real property in the State of New York or in any other
jurisdiction in which a tax is imposed on the transfer of a controlling
interest in an entity that owns any interest in real property.
SECTION 4.14. ERISA. (a) The Company has provided Buyer with a
list identifying each "employee benefit plan", as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974 ("ERISA"), each
employment, severance or similar contract, plan, arrangement or policy and
each plan or arrangement (written or oral) providing for compensation,
bonuses, profit-sharing, stock option or other stock related rights or
other forms of incentive or deferred compensation, vacation benefits,
insurance coverage (including any self-insured arrangements), health or
medical benefits, disability benefits, workers' compensation, supplemental
unemployment benefits, severance benefits and post-employment or retirement
benefits (including compensation, pension, health, medical or life
insurance benefits) which is maintained, administered or contributed to by
the Company or any affiliate (as defined below) and covers any employee or
former employee of the Company or any affiliate or under which the Company
or any affiliate has any liability. Copies of such plans (and, if
applicable, related trust agreements) and all amendments thereto and
written interpretations thereof have been furnished to Buyer together with
the three most recent annual reports (Form 5500 including, if applicable,
Schedule B thereto) prepared in connection with any such plan. Such plans
are referred to collectively herein as the "Employee Plans". For purposes
of this Section, "affiliate" of any Person means any other Person which,
together with such Person, would be treated as a single employer under
Section 414 of the Code. At no time has the Company or any Person who from
time to time is or was an affiliate of the Company ever maintained an
employee benefit plan that is subject to Title IV of ERISA.
(b) Nothing done or omitted to be done and no transaction or holding of
any asset under or in connection with any Employee Plan has or will make the
Company or any Subsidiary, any officer or director of the Company or any
Subsidiary subject to any liability under Title I of ERISA or liable for any
tax pursuant to Section 4975 of the Code that could have a Material Adverse
Effect.
(c) Each Employee Plan which is intended to be qualified under
Section 401(a) of the Code is so qualified and has been so qualified during
the period from its adoption to date, and each trust forming a part thereof is
exempt from tax pursuant to Section 501(a) of the Code. The Company has
furnished to the Buyer copies of the most recent Internal Revenue Service
determination letters with respect to each such Plan. Each Employee Plan has
been maintained in material compliance with its terms and with the
requirements prescribed by any and all statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, which are
applicable to such Plan.
(d) Subject to Section 8.5 and except as disclosed in writing to
Buyer prior to the date hereof, no employee of the Company or any Subsidiary
will become entitled to any retirement, severance or similar benefit or
enhanced or accelerated benefit solely as a result of the transactions
contemplated hereby. Without limiting the generality of the foregoing, no
amount required to be paid or payable to or with respect to any employee of
the Company or any Subsidiary in connection with the transactions contemplated
hereby (either solely as a result thereof or as a result of such transactions
in conjunction with any other event) will be an "excess parachute payment"
within the meaning of Section 280G of the Code.
(e) No Employee Plan provides post-retirement health and medical,
life or other insurance benefits for retired employees of the Company and
its affiliates.
(f) Except as disclosed in writing to Buyer prior to the date
hereof, there has been no amendment to, written interpretation or announcement
(whether or not written) by the Company or any of its affiliates relating to,
or change in employee participation or coverage under, any Employee Plan which
would increase materially the expense of maintaining such Employee Plan above
the level of the expense incurred in respect thereof for the twelve months
ended on the Balance Sheet Date.
(g) Except as disclosed in writing to Buyer prior to the date
hereof, neither the Company nor any Subsidiary is a party to or subject to any
union contract or any employment contract or arrangement with any officer,
consultant, director or employee.
SECTION 4.15. Compliance with Laws. Neither the Company nor any
Subsidiary is in violation of, or has violated, any applicable provisions of
any laws, statutes, ordinances or regulations, except for any such violation
that, individually or in the aggregate, has not had and could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.16. Finders' Fees. Except for Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxxx Management, Inc., copies of whose engagement
agreements have been provided to Buyer, there is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to
act on behalf, of the Company or any Subsidiary who might be entitled to any
fee or commission from Buyer or any of its affiliates upon consummation of the
transactions contemplated by this Agreement.
SECTION 4.17. Patents and Other Proprietary Rights. The
Company and Subsidiaries have rights to use, whether through ownership,
licensing or otherwise, all patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses, information, proprietary rights
and processes of which the Company is aware that are necessary for its
business as now conducted (collectively the "Intellectual Property
Rights"). The Company and Subsidiaries have not assigned, hypothecated or
otherwise encumbered any of the Intellectual Property Rights and none of
the licenses included in the Intellectual Property Rights purport to grant
sole or exclusive licenses to another entity or person, including, without
limitation sole or exclusive licenses limited to specific fields of use.
To the best of the Company's knowledge, the patents owned by the Company
and Subsidiaries are valid and enforceable and any patent issuing from
patent applications of the Company and Subsidiaries will be valid and
enforceable, except as such invalidity or unenforceability would not have a
Material Adverse Effect. Except as disclosed in writing to Buyer prior to
the date hereof: (i) the Company has no knowledge of any infringement by
any other party of any of the Intellectual Property Rights, and (ii) the
Company and Subsidiaries have not entered into any agreement to indemnify
any other party against any charge of infringement of any of its
Intellectual Property Rights except for such matters as would not,
individually or in the aggregate, have a Material Adverse Effect. To the
best of the Company's knowledge, the Company and Subsidiaries have not and
do not violate or infringe any intellectual property right of any other
person or entity, and the Company and Subsidiaries have not received any
communication alleging that it violates or infringes the intellectual
property right of any other person or entity, except as disclosed in
writing to Buyer prior to the date hereof and except for any such
violations or infringements as would not, individually or in the aggregate,
have a Material Adverse Effect. The Company and Subsidiaries have not been
sued for infringing any intellectual property right of another entity or
person. Except as disclosed in writing to Buyer prior to the date hereof,
none of the processes, techniques and formulae, research and development
results and other know-how relating to the business of the Company and
Subsidiaries, the value of which to the Company is contingent upon
maintenance of the confidentiality thereof, has been disclosed by the
Company or any affiliate thereof to any person or entity other than those
persons or entities who are bound to hold such information in confidence
pursuant to confidentiality agreements or by operation of law.
SECTION 4.18. Environmental Matters. (a) Except as set forth
in the Company 10-K:
(i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been received by, or, to
the knowledge of the Company, is pending or threatened by any Person
against, the Company or any Subsidiary nor has any material penalty
been assessed against the Company or any Subsidiary with respect to
any (A) alleged violation of any Environmental Law or liability
thereunder, (B) alleged failure to have any permit, certificate,
license, approval, registration or authorization required under any
Environmental Law, (C) generation, treatment, storage, recycling,
transportation or disposal of any Hazardous Substance or (D)
discharge, emission or release of any Hazardous Substance; and
(ii) there are no Environmental Liabilities that have had or
could reasonably be expected to have a Material Adverse Effect.
(b) Except as disclosed in writing to Buyer prior to the date
hereof, there has been no environmental investigation, study, audit, test,
review or other analysis conducted of which the Company has knowledge in
relation to the current or prior business of the Company or any property or
facility now or previously owned or leased by the Company or any Subsidiary
which has not been delivered to Buyer prior to the date hereof.
(c) For purposes of this Section 4.18, the following terms
shall have the meanings set forth below:
"Company" and "Subsidiary" shall include any entity which is, in
whole or in part, a predecessor of the Company or any Subsidiary;
"Environmental Laws" means any federal, state, local or foreign
law, treaty, judicial decision, regulation, rule, judgment, order,
decree, injunction, permit, agreement or governmental restriction
or requirement relating to human health, the environment or
pollutants, contaminants, chemicals, toxins, hazardous substances
or wastes.
"Environmental Liabilities" means any and all liabilities of or
relating to the Company and any Subsidiary, whether contingent or
fixed, actual or potential, known or unknown, which (i) arise
under or relate to matters covered by Environmental Laws and (ii)
relate to actions occurring or conditions existing on or prior to
the Effective Time; and
"Hazardous Substances" means any toxic, radioactive, corrosive or
otherwise hazardous substance, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance
having any constituent elements displaying any of the foregoing
characteristics, which in any event is regulated under
Environmental Laws.
SECTION 4.19 Approvals; Antitakeover Provisions. The Company has
taken all action necessary to approve the Offer and the Merger such that the
approval is sufficient to render entirely inapplicable to the Offer and Merger
or Buyer or Merger Subsidiary the provisions of Chapter 110C, 110D, 110E and
110F of the Massachusetts General Laws. No other antitakeover or similar
statute or regulation applies or purports to apply to the transactions
contemplated by this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
OF BUYER
Buyer represents and warrants to the Company that:
SECTION 5.1. Corporate Existence and Power. Each of Buyer and
Merger Subsidiary is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
Since the date of its incorporation, Merger Subsidiary has not engaged in any
activities other than in connection with or as contemplated by this Agreement
or in connection with arranging any financing required to consummate the
transactions contemplated hereby.
SECTION 5.2. Corporate Authorization. The execution, delivery and
performance by Buyer and Merger Subsidiary of this Agreement and the
consummation by Buyer and Merger Subsidiary of the transactions contemplated
hereby are within the corporate powers of Buyer and Merger Subsidiary and have
been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of each of Buyer and Merger
Subsidiary.
SECTION 5.3. Governmental Authorization. The execution, delivery
and performance by Buyer and Merger Subsidiary of this Agreement and the
consummation by Buyer and Merger Subsidiary of the transactions contemplated
by this Agreement require no action by or in respect of, or filing with, any
governmental body, agency, official or authority other than (a) the filing of
the Articles of Merger in accordance with Massachusetts Law, (b) compliance
with any applicable requirements of the HSR Act; and (c) compliance with any
applicable requirements of the Exchange Act.
SECTION 5.4. Non-Contravention. The execution, delivery and
performance by Buyer and Merger Subsidiary of this Agreement and the
consummation by Buyer and Merger Subsidiary of the transactions contemplated
hereby do not and will not (a) contravene or conflict with the certificate of
incorporation or bylaws of Buyer or the Articles of Organization or bylaws of
Merger Subsidiary, (b) assuming compliance with the matters referred to in
Section 5.3, contravene or conflict with any provision of law, regulation,
judgment, order or decree binding upon Buyer or Merger Subsidiary, or (c)
constitute a default under or give rise to any right of termination,
cancellation or acceleration of any right or obligation of Buyer or Merger
Subsidiary or to a loss of any benefit to which Buyer or Merger Subsidiary is
entitled under any agreement, contract or other instrument binding upon Buyer
or Merger Subsidiary, except, in the case of (b) and (c), for such matters as
would not materially adversely effect the ability of Buyer and Merger
Subsidiary to consummate the transactions contemplated by this Agreement.
SECTION 5.5. Disclosure Documents. (a) The information with
respect to Buyer and its subsidiaries that Buyer furnishes to the Company in
writing specifically for use in any Company Disclosure Document will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading (i) in the case
of the Company Proxy Statement at the time the Company Proxy Statement or any
amendment or supplement thereto is first mailed to stockholders of the Company
and at the time the stockholders vote on adoption of this Agreement, and (ii)
in the case of any Company Disclosure Document other than the Company Proxy
Statement, at the time of the filing thereof, at the time of any distribution
thereof, and at the time of consummation of the Offer.
(b) The Offer Documents, when filed, will comply as to form in
all material respects with the applicable requirements of the Exchange Act and
will not at the time of the filing thereof, at the time of any distribution
thereof or at the time of consummation of the Offer, 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, provided, that this representation and
warranty will not apply to statements or omissions in the Offer Documents
based upon information furnished to Buyer or Merger Subsidiary in writing by
the Company specifically for use therein.
SECTION 5.6. Finders' Fees. Except for Xxxxxxxxx & Co., LLC,
whose fees will be paid by Buyer, there is no investment banker, broker,
finder or other intermediary who might be entitled to any fee or commission
from the Company or any of its affiliates upon consummation of the
transactions contemplated by this Agreement.
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.1. Conduct of the Company. From the date hereof until
the Effective Time, the Company and the Subsidiaries shall conduct their
business in the ordinary course consistent with past practice and shall use
their best efforts to preserve intact their business organizations and
relationships with third parties and to keep available the services of their
present officers and employees. Without limiting the generality of the
foregoing, from the date hereof until the Effective Time:
(a) the Company will not adopt or propose any change in its
Articles of Organization or bylaws;
(b) the Company will not, and will not permit any Subsidiary to,
merge or consolidate with any other Person or acquire a material amount
of assets of any other Person, other than purchases of materials or
products in the ordinary course of business;
(c) the Company will not, and will not permit any Subsidiary to,
sell, lease, license or otherwise dispose of any material assets or
property except (i) pursuant to existing contracts or commitments and
(ii) in the ordinary course consistent with past practice;
(d) the Company will not, and will not permit any Subsidiary
to, settle or compromise any suit or claims or threatened suit or
claim relating to the transactions contemplated hereby;
(e) the Company will not, and will not permit any Subsidiary to,
agree or commit to do any of the foregoing; and
(f) the Company will not, and will not permit any Subsidiary to,
take or agree or commit to take any action that would make any
representation and warranty of the Company hereunder inaccurate in any
respect at, or as of any time prior to, the Effective Time.
SECTION 6.2. Stockholder Meeting; Proxy Material. The Company
shall cause a meeting of its stockholders (the "Company Stockholder Meeting")
to be duly called and held as soon as reasonably practicable following the
consummation of the Offer for the purpose of voting on the approval and
adoption of this Agreement, unless a vote shall not be required under
Massachusetts Law. The Directors of the Company shall, except as may be
required, in response to an unsolicited bona fide written Acquisition Proposal
(as defined in Section 6.4), in order to comply with the fiduciary duties of
the Board of Directors under applicable law as advised in writing by Company
Counsel, recommend approval and adoption of this Agreement by the Company's
stockholders. In connection with such meeting, the Company (a) will promptly
prepare and file with the SEC, will use its best efforts to have cleared by
the SEC and will thereafter mail to its stockholders as promptly as
practicable the Company Proxy Statement and all other proxy materials for such
meeting, (b) will use its best efforts to obtain the necessary approvals by
its stockholders of this Agreement and the transactions contemplated hereby
and (c) will otherwise comply with all legal requirements applicable to such
meeting.
SECTION 6.3. Access to Information. From the date hereof until
the Effective Time, the Company will give Buyer, its counsel, financial
advisors, auditors and other authorized representatives reasonable access to
the offices, properties, books and records of the Company and the Subsidiaries
and such financial and operating data and other information as such Persons
may reasonably request and will instruct the Company's employees, counsel and
financial advisors to cooperate with Buyer in its investigation of the
business of the Company and the Subsidiaries; provided that no investigation
pursuant to this Section 6.3, shall affect any representation or warranty
given by the Company to Buyer hereunder.
SECTION 6.4. Other Offers. From the date hereof until the
termination hereof, the Company and the Subsidiaries and the officers,
directors, employees or other agents of the Company and the Subsidiaries will
not, directly or indirectly, (i) take any action to solicit, initiate or
encourage any Acquisition Proposal or (ii) except as may be required, in
response to an unsolicited bona fide written Acquisition Proposal, in order to
comply with the fiduciary duties of the Board of Directors under applicable
law as advised in writing by Company Counsel, engage in negotiations with, or
disclose any nonpublic information relating to the Company or any Subsidiary
or afford access to the properties, books or records of the Company or any
Subsidiary to, any Person. The Company will promptly (and in no event later
than 24 hours after receipt of the relevant Acquisition Proposal) notify
(which notice shall be provided orally and in writing and shall identify the
Person making the relevant Acquisition Proposal and set forth the material
terms thereof) Buyer after (i) the Company has received any Acquisition
Proposal, (ii) the Company has actual knowledge that any Person is considering
making an Acquisition Proposal, or (iii) the Company has received any request
for nonpublic information relating to the Company or any Subsidiary, or for
access to the properties, books or records of the Company or any Subsidiary,
by any Person that the Company has actual knowledge is considering making, or
has made, an Acquisition Proposal. The Company will keep Buyer fully informed
of the status and details of any such Acquisition Proposal or request. The
Company shall not engage in negotiations with, or disclose any nonpublic
information to, any such Person unless it receives from such Person an
executed confidentiality agreement with terms no less favorable to the Company
than the Confidentiality Agreement (as defined in Section 11.9). The Company
shall, and shall cause its Subsidiaries and the Company's directors, officers,
employees, financial advisors and other agents or representatives to, cease
immediately and cause to be terminated all activities, discussions or
negotiations, if any, with any Persons conducted heretofore with respect to
any Acquisition Proposal. For purposes of this Agreement, "Acquisition
Proposal" means any offer or proposal for a merger or other business
combination involving the Company or any Subsidiary or the acquisition of any
equity interest in, or a substantial portion of the assets of, the Company or
any Subsidiary, other than the transactions contemplated by this Agreement.
ARTICLE 7
COVENANTS OF BUYER
SECTION 7.1. Obligations of Merger Subsidiary. Buyer will take
all action necessary to cause Merger Subsidiary to perform its obligations
under this Agreement and to consummate the Merger on the terms and conditions
set forth in this Agreement.
SECTION 7.2. Voting of Shares. Buyer agrees to vote all Shares
beneficially owned by it in favor of adoption of this Agreement at the Company
Stockholder Meeting.
SECTION 7.3. Director and Officer Liability. For five years
after the Effective Time, Buyer will cause the Surviving Corporation to
indemnify and hold harmless the present and former officers and directors of
the Company in respect of acts or omissions occurring prior to the Effective
Time to the extent provided under the Company's Articles of Organization and
bylaws in effect on the date hereof; provided that such indemnification shall
be subject to any limitation imposed from time to time under applicable law.
For five years after the Effective Time, Buyer will cause the Surviving
Corporation to use its best efforts to provide officers' and directors'
liability insurance in respect of acts or omissions occurring prior to the
Effective Time covering each such Person currently covered by the Company's
officers' and directors' liability insurance policy on terms with respect
to coverage and amount no less favorable than those of such policy in
effect on the date hereof, provided that in satisfying its obligation under
this Section, Buyer shall not be obligated to cause the Surviving
Corporation to pay premiums in excess of 150% of the amount per annum the
Company paid in the twelve months ended December 31, 1996, which amount has
been disclosed to Buyer. Buyer, Merger Subsidiary and the Company
acknowledge and agree that any directors and officers, present or former,
of the Company are third party beneficiaries under this Section 7.3 and, as
such, shall be entitled to the benefits of all covenants and obligations of
Buyer hereunder.
SECTION 7.4. Tax Certification. At any time during the period beginning
on the date hereof and ending on the Effective Time, the Company shall provide
to Buyer, within two business days of a request by Buyer, a certificate
meeting the requirements of Treas. Reg. Sec. 1.897-2(h) to the effect that the
Company is not, nor has it been within 5 years of the date thereof, a "United
States real property holding corporation" as defined in Section 897 of the
Code.
ARTICLE 8
COVENANTS OF BUYER
AND THE COMPANY
SECTION 8.1. Best Efforts. Subject to the terms and conditions
of this Agreement, each party will use its 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 under applicable laws and regulations to consummate the
transactions contemplated by this Agreement.
SECTION 8.2. Certain Filings. The Company and Buyer shall
cooperate with one another (a) in connection with the preparation of the
Company Disclosure Documents and the Offer Documents, (b) in determining
whether any action by or in respect of, or filing with, any governmental body,
agency or official, or authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any material
contracts, in connection with the consummation of the transactions
contemplated by this Agreement and (c) in seeking any such actions, consents,
approvals or waivers or making any such filings, furnishing information
required in connection therewith or with the Company Disclosure Documents or
the Offer Documents and seeking timely to obtain any such actions, consents,
approvals or waivers.
SECTION 8.3. Public Announcements. Buyer and the Company will
consult with each other before issuing any press release or making any public
statement with respect to this Agreement and the transactions contemplated
hereby and, except as may be required by applicable law or any listing
agreement with any national securities exchange or automated quotation system,
will not issue any such press release or make any such public statement prior
to such consultation.
SECTION 8.4. Notices of Certain Events. The Company shall
promptly notify Buyer, and Buyer shall promptly notify the Company, of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(c) with respect only to the Company, any actions, suits, claims,
investigations or proceedings commenced or, to the best of its knowledge
threatened which, if pending on the date of this Agreement, would have
been required to have been disclosed pursuant to Section 4.12 or which
relate to the consummation of the transactions contemplated by this
Agreement.
SECTION 8.5. Employee Benefits. Buyer and the Company agree to
appoint personnel from their respective human relations departments that will
meet and coordinate the manner of transition of the insurance, compensation
and other benefit plans of the Company following the Merger. The parties
agree that for two years following the Effective Time, the Company's employees
will be provided benefits that are substantially comparable in the aggregate
to those provided by the Company to its employees as of the date hereof,
excluding all forms of stock-based or equity-based compensation.
SECTION 8.6. Further Assurances. At and after the Effective
Time, the officers and directors of the Surviving Corporation will be
authorized to execute and deliver, in the name and on behalf of the Company or
Merger Subsidiary, any deeds, bills of sale, assignments or assurances and to
take and do, in the name and on behalf of the Company or Merger Subsidiary,
any other actions and things to vest, perfect or confirm of record or
otherwise in the Surviving Corporation any and all right, title and interest
in, to and under any of the rights, properties or assets of the Company
acquired or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger.
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.1. Conditions to the Obligations of Each Party. The
obligations of the Company, Buyer and Merger Subsidiary to consummate the
Merger are subject to the satisfaction of the following conditions:
(a) if required by Massachusetts Law, this Agreement shall have
been adopted by the stockholders of the Company in accordance with such
law;
(b) any applicable waiting period under the HSR Act relating to
the Merger shall have expired or has been terminated;
(c) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation
of the Merger; and
(d) Buyer shall have purchased Shares pursuant to the Offer.
ARTICLE 10
TERMINATION
SECTION 10.1. Termination. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time
(notwithstanding any approval of this Agreement by the stockholders of the
Company):
(a) by mutual written consent of the Company and Buyer;
(b) by either the Company or Buyer, if the Offer has not been
consummated by June 4, 1997;
(c) by either the Company or Buyer, if there shall be any law or
regulation that makes consummation of the Offer or the Merger illegal or
otherwise prohibited or if any judgment, injunction, order or decree
enjoining Buyer or the Company from consummating the Offer or the Merger
is entered and such judgment, injunction, order or decree shall become
final and nonappealable;
(d) by Buyer, upon the occurrence of any Trigger Event
described in clauses (i) or (ii) of Section 11.4(b); or
(e) by the Company, upon the occurrence of any Trigger Event
described in clause (i)(A) of Section 11.4(b).
The party desiring to terminate this Agreement pursuant to clauses (b), (c) or
(d) shall give written notice of such termination to the other party in
accordance with Section 11.1.
SECTION 10.2. Effect of Termination. If this Agreement is
terminated pursuant to Section 10.1, this Agreement shall become void and of
no effect with no liability on the part of any party hereto, except that the
agreements contained in Section 11.4 shall survive the termination hereof.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopy
or similar writing) and shall be given,
if to Buyer or Merger
Subsidiary to: Xxxx X. Xxxx
Senior Vice President
Communication Products Group
Compaq Computer Corporation
00000 XX 000
Xxxxxxx, XX 00000
with copies to: J. Xxxxx Xxxxxxx, Esq.
Senior Vice President
General Counsel and Secretary
Compaq Computer Corporation
00000 XX 000
Xxxxxxx, XX 00000
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Att: Xxxxxxxxxxx Xxxxx, Esq.
if to the Company, to: Microcom, Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Att: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
with a copy to: Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Att: Xxxxxxx X. Xxxxxx, Esq.
or such other address or telecopy number as such party may hereafter specify
for the purpose by notice to the other parties hereto. Each such notice,
request or other communication shall be effective (a) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section and the appropriate telecopy confirmation is received or (b) if given
by any other means, when delivered at the address specified in this Section.
SECTION 11.2. Survival of Representations and Warranties. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time or the termination of this Agreement except for the agreements
set forth in Section 11.4.
SECTION 11.3. Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Effective Time if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by the Company, Buyer and Merger Subsidiary or in the case of a
waiver, by the party against whom the waiver is to be effective.
(b) A termination of this Agreement pursuant to Section 10.01 or an
amendment of this Agreement in accordance with Section 11.3(a) shall, in order
to be effective, require in the case of the Company action by its Board of
Directors or the duly authorized designee of its Board of Directors. In the
event that Buyer's designees are appointed or elected to the Board of
Directors of the Company as provided in Section 1.3, after the consummation of
the Offer and prior to the Effective Time, the affirmative vote of at least a
majority of the Continuing Directors shall be required for the Company to
agree to amend, waive compliance with or terminate this Agreement.
(c) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 11.4. Fees and Expenses. (a) Except as otherwise
provided in this Section, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
(b) The Company agrees to pay Buyer a fee in immediately available
funds equal to $10,460,000 promptly, but in no event later than two
business days, after the termination of this Agreement as a result of the
occurrence of any of the events set forth below (a "Trigger Event"):
(i) (A) the Company shall have entered into, or shall have
publicly announced its intention to enter into, an agreement or an
agreement in principle with respect to any Acquisition Proposal,
or (B) the Board of Directors of the Company shall have withdrawn
or materially modified in a manner adverse to Buyer the Board's
approval or recommendation of the Offer or the Merger;
(ii) any person or group (as defined in Section 13(d)(3) of
the Exchange Act) (other than Buyer, the Merger Subsidiary or any
affiliate thereof) shall have become the beneficial owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of a
majority of the outstanding Shares; or
(iii) this Agreement shall have been terminated in accordance
with Section 10.1(b) and (x) the Company shall have failed to
observe or perform in any material respect any of its obligations
under this Agreement or (y) an Acquisition Proposal is received
prior to June 4, 1997 and not publicly rejected by the Company's
Board of Directors.
(c) The Company agrees to pay Buyer an amount in immediately available
funds equal to the sum of (i) Buyer's out-of-pocket expenses incurred in
connection with this transaction (but not to exceed $2 million ) and (ii) $ 2
million, if this Agreement shall have been terminated in accordance with
Section 10.1(b) and any representation or warranty made by the Company in this
Agreement shall not have been true and correct as of the date hereof; provided
that in the event the Company has made a payment to Buyer pursuant to Section
11.4(b) it shall not be required to make any further payment to Buyer pursuant
to this Section 11.4(c).
SECTION 11.5. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, provided that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto except
that Buyer may transfer or assign, in whole or from time to time in part,
to one or more of its affiliates, the right to purchase shares pursuant to
the Offer, but any such transfer or assignment will not relieve Buyer of
its obligations under the Offer or prejudice the rights of tendering
stockholders to receive payment for Shares validly tendered and accepted
for payment pursuant to the Offer.
SECTION 11.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
SECTION 11.7. Counterparts; Effectiveness; Third Party
Beneficiaries. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto. Except for Section 7.3 hereof, no
provision of this Agreement is intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
SECTION 11.8. Entire Agreement. This Agreement and the
Confidentiality and Nondisclosure Agreement effective as of April 9, 1997
between Buyer and the Company ("Confidentiality Agreement") constitute the
entire agreement among Buyer, Merger Subsidiary and the Company with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among Buyer, Merger Subsidiary and
the Company with respect to the subject matter hereof.
SECTION 11.9. Definitions. Each of the following terms is
defined in the Section set forth opposite such term:
Term Section
---- -------
Acquisition Proposal 6.4
Articles of Merger 2.1
Balance Sheet 4.8
Balance Sheet Date 4.8
Code 2.5
Common Stock 1.1
Company Counsel 1.2
Company Disclosure Documents 4.9
Company Proxy Statement 4.9
Company Securities 4.5
Company Stockholder Meeting 6.2
Company Stock Purchase Plan 2.5
Company 10-K 4.6
Company 10-Q 4.7
Confidentiality Agreement 11.8
Continuing Directors 1.3
Effective Time 2.1
Employee Plans 4.14
Environmental Laws 4.18
Environmental Liabilities 4.18
ERISA 4.14
Exchange Act 4.3
Exchange Agent 2.3
Hazardous Substances 4.18
HSR Act 4.3
Lien 4.4
Massachusetts Law 1.2
Material Adverse Effect 4.1
MBCL 1.2
Merger 2.1
Merger Consideration 2.2
Minimum Condition 1.1
Offer 1.1
Offer Documents 1.1
Option Restricted Stock 2.7
Person 2.3
Schedule 14D-9 1.2
SEC 4.7
Shares 1.1
Subsidiary 4.6
Subsidiary Securities 4.6
Substitute Option 2.5
Surviving Corporation 2.1
Trigger Event 11.4
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as an instrument under seal by their
respective authorized officers as of the day and year first above written.
MICROCOM, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
President
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Treasurer
COMPAQ COMPUTER CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
COMPAQ-BOSTON, INC.
By: /s/ Xxxx X. Xxxx
-------------------------------------
Xxxx X. Xxxx
President
By: /s/ Xxxx x. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
Treasurer
ANNEX I
Notwithstanding any other provision of the Offer, Buyer shall not
be required to accept for payment or pay for any Shares, and may terminate the
Offer, if (i) the Minimum Condition has not been satisfied by June 4, 1997,
(ii) the applicable waiting period under the HSR Act shall not have expired or
been terminated by June 4, 1997, or (iii) at any time on or after April 9,
1997 and prior to the acceptance for payment of Shares, any of the following
conditions exist:
(a) there shall be threatened, instituted or pending any action,
suit, investigation or proceeding by any government or governmental
authority or agency, domestic or foreign, or by any other person,
domestic or foreign, before any court or governmental authority or
agency, domestic or foreign, (i) challenging or seeking to make illegal,
to delay materially or otherwise directly or indirectly to restrain or
prohibit the making of the Offer, the acceptance for payment of or
payment for some of or all the Shares pursuant to the Offer or the
consummation of the Merger, seeking to obtain material damages or
otherwise directly or indirectly relating to the transactions
contemplated by the Offer or the Merger, (ii) seeking to restrain or
prohibit Buyer's ownership or operation (or that of its respective
subsidiaries or affiliates) of all or any material portion of the
business or assets of the Company and the Subsidiaries, taken as a
whole, or of Buyer and its subsidiaries, taken as a whole, or to compel
Buyer or any of its subsidiaries or affiliates to dispose of or hold
separate all or any material portion of the business or assets of the
Company and the Subsidiaries, taken as a whole, or of Buyer and its
subsidiaries, taken as a whole, (iii) seeking to impose or confirm
material limitations on the ability of Buyer or any of its subsidiaries
or affiliates effectively to exercise full rights of ownership of the
Shares, including, without limitation, the right to vote any Shares
acquired or owned by Buyer or any of its subsidiaries or affiliates on
all matters properly presented to the Company's stockholders, or (iv)
seeking to require divestiture by Buyer or any of its subsidiaries or
affiliates of any Shares, or (v) that otherwise is reasonably likely to
have a Material Adverse Effect or materially adversely affect Buyer and
its subsidiaries, taken as a whole; or
(b) there shall be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed, enacted, enforced,
promulgated, issued or deemed applicable to the Offer or the Merger, by
any court, government or governmental authority or agency, domestic or
foreign other than the application of the waiting period provisions of
the HSR Act to the Offer or the Merger that is reasonably likely,
directly or indirectly, to result in any of the consequences referred to
in clauses (i) through (v) of paragraph (a) above; or
(c) (i) there shall be initiated, threatened, instituted or
pending any action, suit, investigation or proceeding by any government
or governmental authority or agency, domestic or foreign, that, in the
reasonable judgment of Buyer, would materially adversely affect the
Company and its Subsidiaries, taken as a whole, or (ii) except as
disclosed in writing to Buyer prior to the date hereof, there has been
since the Balance Sheet Date any event, occurrence or development or
state of circumstances or facts which has had or could reasonably be
expected to have a Material Adverse Effect; or
(d) there shall have occurred a decline of at least 20% in
either the Dow Xxxxx Average of Industrial Stocks or the Standard &
Poor's 500 Index from the date of this Agreement through the date of
termination or expiration of the Offer; or
(e) the Company shall have breached or failed to perform in any
material respect any of its covenants or agreements under the Merger
Agreement, or any of the representations and warranties of the Company
set forth in the Merger Agreement shall not be true in any material
respect when made or at any time prior to consummation of the Offer as
if made at and as of such time (except as to any representation or
warranty which speaks as of a specific date, which must be untrue as of
such date); or
(f) the Company shall have entered into, or shall have publicly
announced its intention to enter into, an agreement or an agreement in
principle with respect to any Acquisition Proposal or the Board of
Directors of the Company shall have withdrawn or materially modified in
a manner adverse to Buyer the Board's approval or recommendation of the
Offer or the Merger; or
(g) any person or group (as defined in Section 13(d)(3) of the
Exchange Act) (other than Buyer, the Merger Subsidiary or any
affiliate thereof) shall have become the beneficial owner (as defined
in Rule 13d-3 promulgated under the Exchange Act) of a majority of
the outstanding Shares; or
(h) the Merger Agreement shall have been terminated in accordance
with its terms.
The foregoing conditions are for the sole benefit of Buyer and Merger
Subsidiary and may, subject to the terms of the Agreement, be waived by Buyer
and Merger Subsidiary in whole or in part at any time and from time to time in
their discretion. The failure by Buyer or Merger Subsidiary at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances, and each such right shall be deemed an ongoing right that may
be asserted at any time and from time to time prior to the Effective Time.
