AGREEMENT AND PLAN OF MERGER
EXHIBIT 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER, dated as of December 22, 2006 (the "Agreement"), by and among XXXX, Inc., a New York corporation ("Company"), Buckingham XXXX, Inc., a Delaware corporation ("Parent"), and Buckingham XXXX Acquisition Corp., a New York corporation and a wholly-owned subsidiary of Parent ("Acquisition Sub").
R E C I T A L S:
WHEREAS, the respective boards of directors of Parent, Acquisition Sub and Company have each approved this Agreement and the merger of Acquisition Sub with and into Company (the "Merger"), upon the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, Parent, Acquisition Sub and Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and intending to be legally bound by this Agreement, Parent, Acquisition Sub and Company agree as follows:
ARTICLE I.
THE MERGER
Section 1.01 The Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time in accordance with the New York Business Corporation Law (the "BCL"), Acquisition Sub shall be merged with and into Company. Following the Merger, the separate corporate existence of Acquisition Sub shall cease and Company shall continue as the surviving corporation. Company, as the surviving corporation after the Merger, is sometimes referred to as the "Surviving Corporation."
Section 1.02 Closing; Effective Time.
(b) Upon the terms and subject to the conditions of this Agreement, on the Closing Date, the parties hereto shall file a Certificate of Merger of Acquisition Sub into Company (the "Certificate of Merger"), in accordance with Section 904 of the BCL, with the New York Department of State, in such form as required by, and executed and attested in accordance with the relevant provisions of, the BCL. The Merger shall become effective upon the filing of the
Section 1.03 Effect of the Merger. At the Effective Time, and without the necessity of any action by or on behalf of the Constituent Corporations or either of them, the effect of the Merger shall be as provided in the applicable provisions of the BCL. Without limiting the generality of the applicable provisions of the BCL, at the Effective Time all the property, rights, privileges, powers and franchises of the Constituent Corporations shall vest in the Surviving Corporation, and all Liabilities and duties of the Constituent Corporations shall become the Liabilities and duties of the Surviving Corporation.
Section 1.04 Subsequent Actions. If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of the Constituent Corporations 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, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either Company or Acquisition Sub, all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.
Section 1.05 Certificate of Incorporation; By-Laws; Directors and Officers.
(a) At the Effective Time, the Certificate of Incorporation of the Surviving Corporation shall be amended and restated in its entirety to read in the form of the Certificate of Incorporation of the Acquisition Sub, as in effect immediately prior to the Effective Time, until thereafter amended in accordance with their terms and as provided by applicable Laws and this Agreement, except that, as of the Effective Time, Article I of such Certificate of Incorporation shall be amended to reflect the name of the Surviving Corporation designated by Parent.
(b) At the Effective Time, the By-Laws of Acquisition Sub, as in effect immediately prior to the Effective Time, shall be the By-Laws of the Surviving Corporation until thereafter amended as provided by Law, the Certificate of Incorporation of the Surviving Corporation and the By-Laws of the Surviving Corporation provided that the By-Laws of the Surviving Corporation shall be consistent with the provisions of Section 4.09 of this Agreement.
(c) The directors and officers of Acquisition Sub immediately prior to the Effective Time shall be the only directors and officers of the Surviving Corporation as of the Effective Time.
Section 1.06 Conversion of Shares. At the Effective Time, automatically by virtue of the Merger and without any action on the part of the Constituent Corporations or the holder of any of the following securities:
2
(c) Each share of common stock, $0.01 par value, of Acquisition Sub issued and outstanding immediately prior to the Effective Time shall be converted into and thereafter represent one validly issued, fully paid and nonassessable share of common stock, $0.01 par value per share, of the Surviving Corporation.
Section 1.07 Dissenting Shares.
3
be withheld unreasonably), make any payment with respect to any demands for appraisal or negotiate.
Section 1.08 Surrender of Shares; Stock Transfer Books.
(c) If payment of the Merger Consideration in respect of canceled Shares is to be made to a Person other than the Person in whose name a surrendered Certificate is registered, it shall be a condition to such payment that the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other taxes required by reason of such payment in a name other than that of the registered holder of the Certificate surrendered or shall have established to the satisfaction of Parent or the Paying Agent that such tax either has been paid or is not payable. If a mutilated Certificate is surrendered to the Paying Agent or if the holder of a Certificate submits an affidavit to the Paying Agent stating that the Certificate has been lost, destroyed or wrongfully taken, such holder shall, if required by Parent, furnish an indemnity bond sufficient in the reasonable judgment of Parent to protect Parent, the Surviving Corporation and the Paying Agent from any loss that any of them may suffer. Until surrendered as contemplated by this Section 1.08, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration as contemplated by this Section 1.08, without interest thereon.
(d) Promptly following the date which is one year after the Effective Time, the Paying Agent shall deliver to Parent all cash, certificates and other documents in its possession relating to the transactions contemplated by this Agreement, and the Paying Agent's duties shall
4
terminate. Thereafter, each holder of a Certificate (other than Certificates representing Dissenting Shares and Certificates representing Shares to be canceled pursuant to Section 1.06(b)) shall look only to the Parent (subject to abandoned property, escheat or other similar Laws), and only as general creditors thereof, with respect to any Merger Consideration that may be payable upon due surrender of the Certificates held by such holder, without any interest thereon. Notwithstanding the foregoing, none of Parent, Acquisition Sub, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificates have not been surrendered prior to the third anniversary of the Effective Time (or immediately prior to such earlier date on which any Merger Consideration in respect of such Certificate would otherwise escheat to or become the property of any Governmental Entity), any amounts payable in respect of such Certificate shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
(f) All Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article I shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares previously represented by such Certificates. At the Effective Time, the stock transfer books of Company shall be closed and thereafter there shall not be any further registration of transfers of Shares that were outstanding immediately prior to the Effective Time on the records of the Surviving Corporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation for transfer, they shall be canceled and exchanged for the Merger Consideration as provided in Section 1.06(a) and this Section 1.08.
5
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
OF PARENT AND ACQUISITION SUB
Except as set forth in the corresponding sections or subsections of the disclosure schedules to this Agreement, Acquisition Sub and Parent jointly and severally represent and warrant to Company as set forth below.
Section 2.01 Organization. Parent is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. Acquisition Sub is a corporation duly organized and validly existing under the Laws of the State of New York. Parent and Acquisition Sub have all requisite corporate power and authority to execute and deliver this Agreement and to carry out each of the transactions contemplated by this Agreement, including the Merger (the "Transactions").
Section 2.02 Authority. The execution and delivery of this Agreement and the consummation of the Transactions contemplated hereby have been duly authorized and approved by the respective boards of directors of Parent and Acquisition Sub and Parent's Investment Committee. No other or further corporate act or proceeding on the part of Parent or Acquisition Sub or their respective shareholders is necessary to authorize or approve this Agreement or the consummation of the Transactions contemplated hereby. This Agreement has been duly executed and delivered by Parent and Sub and, assuming due authorization, execution and delivery by Company, constitutes the legal, valid and binding obligation of Parent and Sub, enforceable against each in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors' rights generally, and by general equitable principles.
Section 2.03 No Violation. Neither the execution and delivery of this Agreement nor the consummation by Parent and Acquisition Sub of the Transactions contemplated hereby, assuming all notices, reports or other filings specifically described in this Section 2.02 have been given or made, will violate any Laws or Orders of any Governmental Entity applicable
6
to Parent or Acquisition Sub. Neither Parent nor Acquisition Sub is required to submit any notice, report or other filing with any Governmental Entity in connection with the execution, delivery or performance of this Agreement or the consummation of the Transactions contemplated hereby except for (i) the filing of the Proxy Statement with the SEC and applicable requirements, if any, of the Exchange Act, (ii) if applicable, the pre-merger notification requirements of the HSR Act, (iii) the filing of the Certificate of Merger as required by the BCL, (iv) filings as may be required by any applicable state takeover or "blue sky" Laws and (v) filings the failure of which to be obtained or made would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. No waiver, consent, approval, authorization, exemption of, or any other action by, any Governmental Entity is required to be obtained or made by Parent or Acquisition Sub in connection with its execution, delivery or performance of this Agreement or the consummation of the Transactions contemplated hereby, except (A) where the failure to obtain such waivers, consents, approvals or authorizations would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect or (B) in connection with any submission required above.
Section 2.04 Brokers. No broker, finder, financial advisor or investment banker is entitled to any brokerage, finder's, financial advisor's or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of Parent or Acquisition Sub.
Section 2.06 Financing. At the Effective Time, Parent will have, and will make available to Acquisition Sub, the funds necessary to consummate the Merger and the other Transactions contemplated by this Agreement, and to pay related fees and expenses. Parent has made available to Company copies of all commitment letters, letters of intent, term sheets and similar documents with respect to pending or proposed commitments of any third parties to lend or otherwise commit funds with respect to the Merger and the Transactions contemplated hereby. Parent is capable of fulfilling, and knows of no conditions affecting it, Buckingham) or their respective affiliates that would make it unable or unlikely to fulfill any condition reflected in any such commitment letters, letters of intent, term sheets and similar documents.
Section 2.07 No Ownership of Shares. As of the date hereof, neither Parent, Buckingham nor any of their respective Subsidiaries or Affiliates owns any Shares or other securities convertible into Shares.
Section 2.08 No Litigation. There is no Litigation pending or, to Parent's or Acquisition Sub's Knowledge, threatened against Parent, Acquisition Sub, Buckingham, the directors or officers of Parent, Acquisition Sub, Buckingham or their respective Affiliates (in such capacity) that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
7
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF COMPANY
Except as set forth in the corresponding sections or subsections of the disclosure schedules to this Agreement, Company represents and warrants to Parent and Acquisition Sub as set forth below.
(b) A true and complete list of all the Subsidiaries, together with the jurisdiction of incorporation or organization of each Subsidiary and the percentage of each Subsidiary's outstanding capital stock owned by Company or another Subsidiary, is set forth in Schedule 3.01(b). Other than the Subsidiaries and as set forth in Schedule 3.01(b) Company does not own, directly or indirectly, any equity or other ownership interests of any Person. Except as set forth in Schedule 3.01(b), all of the outstanding capital stock of each Subsidiary is owned directly or indirectly by Company free and clear of all Liens, except Permitted Liens, and is validly issued, fully paid and nonassessable and except as set forth in Schedule 3.01(b), there are no outstanding subscriptions, options, warrants, puts, calls, rights or agreements of any kind relating to the issuance, sale, transfer or voting of any capital stock or other equity interests of any such Subsidiary.
8
Section 3.03 No Violation.
9
(b) Except for (i) the filing of the Proxy Statement with the SEC and applicable requirements, if any, of the Exchange Act, (ii) if applicable, the pre-merger notification requirements of the HSR Act, (iii) the filing of the Certificate of Merger as required by the BCL, (iv) filings as may be required by any applicable state takeover or "blue sky" Laws and (v) filings, the failure of which to be obtained or made, would not individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, Company is not required to submit any notice, report or other filing with any Governmental Entity in connection with the execution, delivery or performance of this Agreement or the consummation of the Transactions. No waiver, consent, approval, authorization, exemption of, or any other action by, any Governmental Entity is required to be obtained or made by Company in connection with its execution, delivery or performance of this Agreement or the consummation of the Transactions, except (A) where the failure to obtain such waivers, consents, approvals or authorizations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (B) in connection with any submission required above.
Section 3.04 SEC Filings; Financial Statements; Xxxxxxxx-Xxxxx Act.
(a) Company has made available to Parent a true, correct and complete copy of Company's Annual Report on Form 10-K for the year ended March 31, 2006 (the "Company Form 10-K"), quarterly reports on Form 10-Q for the quarters ended June 30, 2006 and September 30, 2006, current reports on Form 8-K filed at any time between March 31, 2006 and the date of this Agreement, and the definitive proxy statement for the annual meeting of stockholders of Company held on August 15, 2006, in each case including all amendments thereof and all as filed by Company with the SEC (collectively, the "Company SEC Documents"). As of their respective dates, the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act, and none of the Company's SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
10
(b) The financial statements of Company included in the Company's SEC Documents (collectively, the "Company Financials") comply in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Form 10-Q of the SEC) and fairly present (subject, in the case of the unaudited statements, to normal, recurring audit adjustments that are not material), in all material respects, the consolidated financial position of Company and its Subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows for the periods then ended.
(c) Each required form, report and document containing financial statements that has been filed with or submitted to the SEC by Company was accompanied by the certifications required to be filed or submitted by Company's principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act.
(d) There are no outstanding loans made by Company or any of its Subsidiaries to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Company. The Company has not since the enactment of the Xxxxxxxx-Xxxxx Act taken any action prohibited by Section 402 of the Xxxxxxxx-Xxxxx Act.
Section 3.05 Financial Controls. The management of Company has (a) established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act and to the extent applicable to Company as of the date of this Agreement) to ensure that material information relating to Company, including its consolidated Subsidiaries, is made known to the management of Company (including its principal executive officer and principal financial officer) by others within those entities, particularly during periods in which the periodic reports required under the Exchange Act are being prepared, (b) established and maintains a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act and to the extent applicable to Company as of the date of this Agreement) sufficient to provide reasonable assurance regarding the reliability of Company's financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAP and (c) has disclosed, based on its most recent evaluation of internal controls over financial reporting, to Company's auditors and the audit committee of Company's Board of Directors (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect Company's ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in Company's internal controls over financial reporting. Company has disclosed to Parent prior to the date hereof all disclosures described in clause (c) of the immediately preceding sentence.
Section 3.06 Tax Matters.
(a) Except as set forth on Schedule 3.06, All Tax Returns required to be filed with respect to Company and its Subsidiaries for all Taxable Periods ending prior to the date hereof have been duly and timely (within any applicable extension periods) filed with the appropriate
11
Governmental Entities in all jurisdictions in which such Tax Returns are required to be filed, all such Tax Returns are true, correct and complete, and all Taxes (whether or not shown to be due and payable on such Returns) required to be paid have been paid. Company and its Subsidiaries have set up reserves for the payment of all material Taxes not yet due and payable, and any penalties or fines related to all Tax Returns, that adequately cover all Taxable Periods ending prior to the date hereof, except that Company has not established a reserve for taxes which may become due if in the future funds are repatriated from foreign subsidiaries.
(b) Company and each Subsidiary has duly withheld and paid all Taxes that it is required to withhold and pay in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party.
(c) Except as set forth on Schedule 3.06(c), none of the Tax Returns of Company and its Subsidiaries filed with respect to Tax years beginning on or after March 31, 2005 or, to the Knowledge of Company, any prior Tax year, has been or is currently being examined by the IRS or relevant state, local or foreign taxing Authorities or Governmental Entities. Except as set forth on Schedule 3.06(c), there are no examinations or other administrative or court proceedings relating to Taxes or Tax Returns in progress or pending with respect to which Company or any of its Subsidiaries has received written notice.
(d) Except as set forth on Schedule 3.06(d), no payment made or to be made to any current or former employee or director of Company or any of its Subsidiaries as a result of the Transactions contemplated by this Agreement (either alone or in conjunction with any other events such as a termination of employment) and no trustee under any rabbi trust "or similar arrangement in connection with any Employee Benefit Plan will constitute an excess parachute payment" within the meaning of Section 280G of the Code or will be nondeductible under Section 162(m) of the Code.
(e) There are no Liens for Taxes, other than for current Taxes not yet due and payable, on the assets of Company or any of its Subsidiaries.
(f) During the five year period ending on the date hereof, neither Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.
Section 3.07 Absence of Certain Changes. Except as expressly provided in this Agreement or as set forth in Schedule 3.07 or in the Available Company SEC Documents, since September 30, 2006: (a) the business of Company and the Subsidiaries has been conducted in the ordinary course consistent with past practice; (b) there has not been any event, condition, change or development, or worsening of any existing event, condition, change or development that, individually or in combination with any other event, condition, change, development or worsening thereof, has had or could reasonably be expected to have a Material Adverse Effect; (c) there has not been any damage, destruction or loss (whether or not covered by insurance) with respect to any of the assets of Company or any of its Subsidiaries, except for damage, destruction or loss as would not, individually or in the aggregate, have a Material Adverse Effect; (d) neither Company nor any of its Subsidiaries has engaged in any material transaction or entered into any material agreement or commitments outside the ordinary course of business or, except as and to
12
the extent disclosed in the Available Company SEC Documents, revalued any material assets of Company or any Subsidiary resulting in an impairment charge; (e) there has not been any change in any material method of accounting, except insofar as may have been required by a change in GAAP; (f) there has not been any material strike or material work slowdown instituted by or involving the employees of Company or any of its Subsidiaries; (g) there have not been any issuances of capital stock or other ownership interests or securities convertible into or exchangeable for shares of capital stock or other ownership interest of Company or any of its Subsidiaries thereof, or any changes in the certificate of incorporation or bylaws (or equivalent creation or organizational document) of Company or any of its Subsidiaries; (h) there have not been any dividends or distributions of the capital stock of Company or any non-wholly-owned Subsidiary thereof, or any redemption, return of capital or similar transactions with respect to the capital stock of Company or any non-wholly-owned Subsidiary thereof; or (i) there have not been any Contracts, agreements, commitments or understandings entered into by Company or any Subsidiary thereof to do any of the foregoing.
Section 3.09 Environmental Matters
(a) Except as set forth in the Environmental Reports, Company and each Subsidiary are in material compliance with all applicable Environmental Laws, and any present or former noncompliance with applicable Environmental Laws would not, individually or in the aggregate, have a Material Adverse Effect.
(b) Except as set forth in the Environmental Reports, Company and each Subsidiary have all Environmental Permits necessary for the conduct of its business and the operation of its facilities except where the failure to have any such Environmental Permit would not individually or in the aggregate have a Material Adverse Effect.
(c) Except as set forth in the Environmental Reports, Company and each Subsidiary are and have been in compliance with all Environmental Permits, and any noncompliance with such Environmental Permits would not, individually or in the aggregate, result in a Material Adverse Effect.
(d) Neither Company nor any Subsidiary has received written communications from any Governmental Entity or other Person alleging that Company or any Subsidiary has in any material way violated or is in material violation of any Environmental Law or Environmental Permit.
13
(e) Except as set forth on Schedule 3.09(e) or in the Environmental Reports, there are no Environmental Claims pending or, to the Knowledge of Company, threatened (i) against Company or any Subsidiary or (ii) against any Person whose liability for any such Environmental Claim Company or any Subsidiary has retained or assumed, either contractually or by operation of law.
(f) Except as set forth on Schedule 3.09(f) or in the Environmental Reports, there have been no Releases of any Hazardous Substances at any Owned Real Property or Leased Real Property or any property used by Company or any Subsidiary that could reasonably be expected to result in any Environmental Claim against Company or any Subsidiary.
(g) Complete and accurate copies of all environmental site assessment reports, investigation, remediation or compliance studies, audits, assessments or similar documents which are in the possession, custody or control of Company or any of its Subsidiaries have been made available to Parent.
Section 3.10 Compliance with Laws and Orders.
(a) Company and each Subsidiary are in compliance with all applicable Laws and Orders, except for such instances of noncompliance that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Neither Company nor any Subsidiary has received any notice of any violation or alleged violation of any Laws or Orders. All reports, filings and returns required to be filed by or on behalf of Company or any Subsidiary with any Governmental Entity have been filed, except where the failure to so file would not reasonably be expected to have a Material Adverse Effect.
(b) Except as set forth on Schedule 3.10(b), Company and each Subsidiary has all necessary Permits and/or all necessary exemptions from Permits required for the current conduct of its business and the operation of its facilities, except for instances where the failure to have such Permits and/or exemptions would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Company and each Subsidiary (including its respective business and assets) is in compliance with all Permits except for such instances of noncompliance that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Neither Company nor any Subsidiary has received notice of any violation or alleged violation of any Permit.
Section 3.11 Properties.
14
(d) Each Real Property Lease is a valid and binding obligation of Company or a Subsidiary and is in full force and effect. There is no default under any Real Property Lease either by Company or the Subsidiaries party thereto or, to Company's Knowledge, by any other party thereto, and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default by Company or any Subsidiary thereunder, except for such defaults as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All rent and other sums and charges payable by Company or any of its Subsidiaries, as applicable, as tenant thereunder, are paid or reserved for and no termination event or condition (other than expiration of such Real Property Lease by its terms on its scheduled termination date, rather than an accelerated termination date) exists under any Real Property Lease.
(e) There does not exist any pending or, to Company's Knowledge, threatened condemnation or eminent domain proceedings that affect any Owned Real Property or Real Property Lease, and neither Company nor any Subsidiary has received any written notice of the intention of any Governmental Entity or other Person to take or use any Owned Real Property or Real Property Lease. Except as set forth on Schedule 3.11(e), Company has not received any written notice of any material violations of building codes and/or zoning ordinances or other governmental or regulatory laws affecting the Real Property. Company has obtained all material permits necessary for the present operation and use of each parcel of Owned Real Property and Leased Real Property.
(f) Except as set forth on Schedule 3.11(f), none of the Owned Real Property or the Leased Real Property is subject to any lease, sublease, license or other agreement granting to any other Person any right to the use, occupancy or enjoyment of such real property or any part thereof.
Section 3.12 Insurance. Schedule 3.12 sets forth a true and complete list of all insurance policies carried by or covering Company and the Subsidiaries with respect to their businesses, assets and properties, together with, in respect of each such policy, the name of the insurer, the policy number, the type of policy, and the amount of coverage and the deductible. True and complete copies of each such policy have previously been made available to Parent. All such policies are in full force and effect, all premiums due and payable thereon have been paid, and no notice of cancellation has been received by Company or any Subsidiary with respect to any such policy. Each of Company and the Subsidiaries has complied with the provisions of each such policy under which it is an insured party, except for instances of noncompliance that
15
individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect.
Section 3.13 Material Contracts.
(b) All the Material Contracts are valid and in full force and effect, except to the extent they have previously expired or terminated in accordance with their terms and except for any invalidity or failure to be in full force and effect that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of Company or any Subsidiary is in violation of or default (with or without notice or lapse of time or both) under, or has waived or failed to enforce any rights or benefits under, any Material Contract, except for violations, defaults, waivers or failures to enforce rights or benefits that individually or in the aggregate would not reasonable be expected to have a Material Adverse Effect. To the Knowledge of Company, no other party to any Material Contract is in breach thereof or default thereunder, except for breaches or defaults that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. Company has made available to Parent true and complete copies of each Material Contract, including all material amendments thereto.
Section 3.14 Labor Matters. Except as set forth on Schedule 3.14, (i) there is no unfair labor practice charge or complaint pending or, to Company's Knowledge, threatened, against Company or any Subsidiary; (ii) there is no labor dispute, slowdown, strike, work stoppage or other collective labor action actually pending or, to Company's Knowledge, threatened, against
16
or affecting Company or any Subsidiary; (iii) except as set forth on Schedule 3.14, neither Company nor Subsidiary is a party to or otherwise bound by any collective bargaining agreement or any other agreement with any labor organization applicable to employees or to Persons providing services to either Company or any Subsidiary; (iv) there has been no mass layoff, plant closure, employment loss or other event covered by the Worker Adjustment and Retraining Notification Act or any applicable state or local law concerning mass layoffs and/or plant closures within the last year; and (v) there are no administrative charges or court complaints or Litigation against Company or any Subsidiary concerning alleged employment discrimination or other employment-related matters pending or threatened before the U.S. Equal Employment Opportunity Commission.
Section 3.15 Employee Benefit Plans.
(c) Except as disclosed on Schedule 3.15(c) or as expressly provided in this Agreement, neither Company nor any Subsidiary, or any of their officers or directors, has taken any action directly or indirectly during the three year period ending on the closing date which obligates Company or any Subsidiary to institute, modify or change any Employee Benefit Plan, any actuarial or other assumption used to calculate funding obligations with respect to any of the Employee Benefit Plans, the manner in which contributions to any of the Employee Benefit Plans are made, or the basis on which such contributions are determined. Except as disclosed on
17
Schedule 3.15(c), with respect to the Employee Benefit Plans, and the employee plans of any entity while an ERISA Affiliate, no event has occurred and, to Company's Knowledge, there exists no condition or set of circumstances, in connection with which Company or any Subsidiary could be subject to any Liability (except for routine payment of benefits and funding) under ERISA, the Code, or any other applicable Law except for events, conditions and circumstances that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.
(d) Each Employee Benefit Plan has been administered in accordance with its terms, and all Employee Benefit Plans have been operated, and are in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, Orders, and governmental rules and regulations except for instances of noncompliance that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. To Company's Knowledge, all required reports and description of the Employee Benefit Plans (including but not limited to Form 5500 or 5500C Annual Reports, Form 1024 Application for Recognition of Exemption Under Section 501(a), Summary Annual Reports and Summary Plan Descriptions, as applicable) have been timely filed and distributed.
(e) There is not pending or, to the Knowledge of Company, threatened any Litigation, claim, investigation or audit relating to any Employee Benefit Plan or the assets thereof that individually or in the aggregate would reasonably be expected to be material, and to the Knowledge of Company there is no basis therefor.
(f) Except as set forth in Schedule 3.15(f), no current or former director, officer, or employee of Company or any Subsidiary will be entitled to any payment (including severance, unemployment compensation, golden parachute, or otherwise), additional benefits or any acceleration of the time of payment or vesting of any benefits under any Employee Benefit Plan as a result of the Transactions contemplated by this Agreement (either alone or in conjunction with any other event such as a termination of employment) and no trustee under any "rabbi trust" or similar arrangement in connection with any Employee Benefit Plan will be entitled to any payment as a result of the Transactions.
(g) Neither Company, nor any of its Subsidiaries or any entities while ERISA Affiliates, has, within the preceding six years established, maintained, contributed to or has any Liability with respect to, any Employee Benefit Plan that has ever been a multiemployer plan within the meaning of ERISA Section 3(37) or 4001(a)(3) or Code Section 414(f) or that has ever been subject to Code Section 412 or ERISA Section 302.
Section 3.16 Intellectual Property.
18
(c) To Company's Knowledge, no material trade secret or other confidential information of Company and its Subsidiaries has been used, disclosed or appropriated to the detriment of Company and its Subsidiaries for the benefit of any other person. To Company's Knowledge, no employee, former employee, independent contractor or agent of Company or any of its Subsidiaries has misappropriated any trade secrets or other confidential information of any other Person in the course of the performance of his, her or its duties as an employee, independent contractor or agent of Company or such Subsidiary.
Section 3.17 Undisclosed Liabilities. Except as set forth on Schedule 3.17, as of the date hereof, neither Company nor any of its Subsidiaries has any liabilities or obligations (absolute or accrued, contingent or otherwise, and whether due or to become due and whether the amount thereof is readily ascertainable or not) that are material to the business or operations of Company and its Subsidiaries taken as a whole, other than: (a) liabilities or obligations disclosed in the Company Financials included in the Company SEC Documents filed with the SEC prior to the date hereof; (b) liabilities or obligations under contracts to which Company or any of its Subsidiaries is a party; or (c) liabilities or obligations incurred in the ordinary course of business consistent with past practices since September 30, 2006.
Section 3.18 Sufficiency of Assets. Except as set forth on Schedule 3.18, Company and its Subsidiaries hold good and valid title (free and clear of any Lien other than Permitted Liens) to, or licenses or lease, all such tangible real and personal properties and assets as are necessary for them to conduct their businesses in all material respects as currently conducted. Except as set forth on Schedule 3.18, all of the material tangible personal property of Company and its Subsidiaries is, in the aggregate, in good operating condition and repair, normal wear and tear excepted, and is, in the aggregate, usable in the regular and ordinary course of business consistent with past practices.
Section 3.19 Suppliers. Except as set forth on Schedule 3.19, since January 1, 2006, none of the suppliers whose products (i) are material to the operations of the business of Company and its Subsidiaries and (ii) cannot be replaced within a reasonable period of time with alternative products which are available at comparable or otherwise reasonable prices, has terminated other than in accordance with the terms of, or given a notice of early termination at
19
the supplier's option under, its supply Contract with Company or any of its Subsidiaries relating to such products, or, to Company's Knowledge, stated in writing its affirmative intention (which statement has not been withdrawn) to terminate such supply Contract.
Section 3.20 Rights Agreement. Company has taken or will take prior to the Closing all action necessary to render the rights issued pursuant to the terms of the Rights Agreement inapplicable to the Merger, this Agreement and the Transactions.
Section 3.21 Proxy Statement. Any proxy statement to be sent to the shareholders of Company in connection with a meeting of Company's shareholders to consider the Merger (the "Company Shareholders' Meeting") (such proxy statement, as amended or supplemented, is herein referred to as the "Proxy Statement") will comply in all material respects with the applicable requirements of the Exchange Act (including the rules and regulations thereunder) and the BCL, except that no representation or warranty is being made by Company with respect to Parent Information.
Section 3.23 Board Approval; Required Vote. The Board of Directors, at a meeting duly called and held, has (i) duly and validly approved and taken all corporate action required to be taken by the Board of Directors to authorize the consummation of the Merger and the Transactions, and (ii) resolved to recommend that the shareholders of Company approve and adopt this Agreement and the Merger (the "Company Board Recommendation").
ARTICLE IV.
COVENANTS
20
(i) Amend or otherwise change its Certificate of Incorporation or By-Laws or the equivalent organizational documents, or amend or grant any waiver under the Rights Agreement;
(ii) Sell, dispose of, transfer, further pledge or further encumber any stock owned by Company in any of its Subsidiaries;
(iii) Issue, reissue, sell, transfer, deliver, pledge, or authorize the issuance, reissuance, transfer, delivery, pledge or sale of any shares of capital stock of any class, any Voting Debt or other voting securities, or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any shares of capital stock, Voting Debt, voting securities, convertible or exchangeable securities or any other ownership interest (including, but not limited to, stock appreciation rights, phantom stock, phantom stock rights, or stock-based performance units) of Company or any Subsidiary (except for the issuance of Shares required to be issued pursuant to the terms of the Options outstanding as of the date hereof) or make any other changes in its capital structure;
(iv) Declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, with respect to any of its capital stock (other than dividends or distributions by any wholly owned Subsidiary to its parent);
(v) Reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any shares of capital stock of Company or any Subsidiary or any securities convertible into or exercisable for any such shares of its capital stock or securities, except for payments in respect of the cancellation of outstanding Options to the extent and subject to the terms and conditions set forth on Schedule 4.01;
(vi) Acquire any shares or equity interests in any corporation, partnership, Person or other business organization or division thereof, or a substantial portion of the assets thereof;
(vii) Incur, create or assume any Indebtedness (including by issuance of debt securities) other than borrowings in the ordinary course of business consistent with past practices under Company's existing credit facilities or issue any debt securities or warrants or other rights to acquire any debt securities of Company or any Subsidiary, or assume, guarantee or endorse (other than for collection or deposit in the ordinary course of business consistent with past practices or for guarantees of Subsidiary obligations to the extent permitted under Company's applicable credit agreements), or otherwise as an accommodation become responsible for, the
21
obligations or Indebtedness of any Person, or make any loans or advances or make any capital contributions to, or investments in, any other Person;
(viii) Enter into, or modify, amend or terminate any Material Contract;
(ix) (A) Increase the compensation or fringe benefits of, or pay any benefit not required by any contract, plan or arrangement in effect as of the date hereof to, any of its directors, officers or employees (including any bonus), except (1) as required by contractual obligations existing as of the date of this Agreement and disclosed in writing to Parent prior to the date hereof and (2) for increases in salary or wages in connection with (i) a promotion or change in position, or (ii) annual increases not in excess of 5%, granted to employees (other than executive officers) of Company or a Subsidiary in the ordinary course of business consistent with past practices, or (B) except as set forth on Schedule 4.13 or as is required by Law, establish, adopt, enter into or amend or terminate, or take any action to accelerate or increase any rights or benefits under, or grant any awards under, or make any material determination not in the ordinary course of business consistent with past practices under, any Employee Benefit Plan;
(x) Hire or agree to hire a significant number of new or additional employees not in the ordinary course of business consistent with past practices;
(xi) Terminate or lay off any significant number of employees;
(xii) Disclose any of its material trade secrets;
(xiii) Except as may be required as a result of a change in Law or in GAAP or audit practices, make any material change to any of the financial or tax accounting methods, practices or principles used by it;
(xiv) Adopt or authorize a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Company or any Subsidiary (other than the Merger);
(xv) Sell, lease or sublease (as lessor or sublessor), license, assign or otherwise dispose of or subject to any Lien any material properties or assets, except (a) sales of inventory or obsolete assets in the ordinary course of business consistent with past practices, (b) pursuant to existing Contracts disclosed in writing to Parent prior to the date of this Agreement, and (c) Permitted Liens;
(xvi) Enter into any transaction, agreement, arrangement or understanding between (i) Company or any Subsidiary, on the one hand, and (ii) any Affiliate of Company (other than the Subsidiaries), on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K;
(xvii) Settle or dismiss any Litigation threatened against, relating to or involving Company and any Subsidiary in connection with any business, asset or property of Company and any Subsidiary, other than in the ordinary course of business consistent with past practices but not, in any individual case, in excess of $100,000 or in a manner that would prohibit or
22
materially restrict Company from operating as it has historically (including as of the date of this Agreement);
(xviii) (A) Make any material Tax election, (B) enter into any settlement or compromise of any material Tax liability, (C) file any amended Tax Return with respect to any material Tax, (D) change any annual Tax accounting period, (E) enter into any closing agreement relating to any material Tax or (F) surrender any right to claim a material Tax refund; or
(xix) Make or agree to make any new capital expenditure or expenditures (other than expenditures related to routine maintenance of existing operations in the ordinary course of business consistent with past practices) that, individually, is in excess of $25,000 or, in the aggregate during any calendar month, are in excess of $50,000.
23
information or data with respect to Company or any of its Subsidiaries or Affiliates if and only if (A) the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), (x) that such Person is reasonably capable of consummating such Acquisition Proposal taking into account the legal, financial, regulatory and other aspects of such Acquisition Proposal and (y) that such Acquisition Proposal will result in, or could reasonably be expected to constitute or result in, a Superior Proposal from the party that made the applicable Acquisition Proposal (or such party's Affiliates), and (B) the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that the taking of such action may be reasonably necessary in order for the Board of Directors to comply with its fiduciary duties to Company's shareholders under applicable Law, and (C) within one Business Day following the determinations by the Board of Directors referred to in clauses (A) and (B) above Company gives Parent written notice of such determinations, and (D) in each such case, the Board of Directors has received from the Person being furnished or disclosed any nonpublic information, an executed confidentiality agreement on terms substantially similar and not less restrictive than the Confidentiality Agreement; or
(ii) approving or recommending, or entering into, a definitive agreement with respect to an unsolicited, bona fide and written Acquisition Proposal that is submitted to Company after the date of this Agreement if and only if the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that such proposal is a Superior Proposal and that the termination of this Agreement to accept such Superior Proposal or the recommendation of such Superior Proposal to the shareholders of Company is reasonably necessary in order for the Board of Directors to comply with its fiduciary duties to Company's shareholders under applicable Law; provided, however, that Company shall not have the right to take any such action or to terminate this Agreement pursuant to Section 6.01(d)(ii) of this Agreement and the Board of Directors shall not recommend a Superior Proposal to Company's shareholders pursuant to this Section 4.02, unless prior to any such termination: (1) Company has provided Parent with written notice that it intends to terminate this Agreement pursuant to Section 6.01(d)(ii) of this Agreement and take such action with respect to a Superior Proposal, such notice to specify in reasonable detail the material terms and conditions of the Superior Proposal then determined to be more favorable, the parties thereto, and shall be accompanied by a copy of the proposed acquisition agreement for such Superior Proposal and any ancillary agreements each in substantially the form to be entered into, such notice and documents to be delivered not less than two full Business Days prior to the time the action is to be taken; (2) during the two full Business Days period following the delivery of the notice referred to in clause (1) above (the "Negotiation Period"), Parent shall have the right to propose adjustments in the terms and conditions of this Agreement and Company and its advisors shall negotiate in good faith with Parent concerning adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal; (3) following the Negotiation Period, the Board of Directors determines in good faith, after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that such third party proposal is a Superior Proposal and that the termination of this Agreement to accept such Superior Proposal and/or the recommendation of such Superior Proposal to the shareholders of Company is reasonably necessary in order for the Board of
24
(d) Nothing contained in this Section 4.02 shall prohibit Company or its Board of Directors from taking and disclosing to Company's shareholders its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act.
Section 4.03 Access to Information.
25
(c) Subject to applicable Law, during the period commencing on the date hereof and ending on the earlier of (i) the Closing Date and (ii) the date on which this Agreement is terminated pursuant to Section 6.01, Parent shall cause its Representatives to furnish such information and respond to such inquiries as Company shall from time to time reasonably request regarding post-closing integration and operational issues.
26
Section 4.05 Proxy Statement.
(a) As soon as practicable after the date of this Agreement, Company shall prepare and file the Proxy Statement with the SEC. Parent will reasonably cooperate with Company in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, Parent will furnish to Company the information relating to it and Acquisition Sub required by the Exchange Act to be set forth in the Proxy Statement. The Proxy Statement shall contain the Company Board Recommendation, unless the Board of Directors shall have determined in good faith and in accordance with the terms of this Agreement (including Section 4.04, Section 6.01(c)(ii) and Section 6.03(a) hereof), after consultation with its outside legal counsel and a nationally recognized financial advisor (which may be Company's Financial Advisor), that inclusion of such recommendation would cause the Board of Directors to not comply with its fiduciary duties to Company's shareholders under applicable Law.
(b) Company shall provide Parent a reasonable opportunity to review the Proxy Statement prior to its filing with the SEC and as soon as reasonably practicable notify Parent of the receipt of any comments from or other correspondence with the SEC staff with respect to the Proxy Statement and any request by the SEC for any amendment to the Proxy Statement or for additional information with respect to the Proxy Statement or the Merger. Company shall use its commercially reasonable efforts to resolve all SEC comments with respect to the Proxy Statement as promptly as practicable after receipt thereof. Company shall use its reasonable efforts to cause the Proxy Statement to be mailed to Company's shareholders as promptly as practicable after the Proxy Statement is cleared by the SEC.
(c) Company agrees, as to information with respect to Company, its officers, directors, shareholders, Subsidiaries and Business contained in the Proxy Statement, and Parent agrees, as to information with respect to Parent, Acquisition Sub and their respective officers, directors and shareholders furnished by Parent for inclusion in the Proxy Statement, that such information, at the date the Proxy Statement is mailed and (as then amended or supplemented) at the time of the Company Shareholders' Meeting, will not be false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading. If at any time prior to the Company Shareholders' Meeting any event or circumstances relating to Company or any Subsidiary, or their respective officers or directors, should be discovered by Company that is required to be set forth in an amendment or a supplement to the Proxy Statement in order to make the statements therein, in light of the circumstances under which they were made, not misleading, Company shall promptly inform Parent and file such amendment or supplement with the SEC. If at any time prior to the Company Shareholders' Meeting, Parent determines that any information with respect to Parent, Acquisition Sub and their respective officers, directors and shareholders furnished by Parent for inclusion in the Proxy Statement is false or misleading with respect to any material fact, or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, it shall promptly so notify Company, and cooperate with
27
Company in the preparation of any amendment or supplement determined by Company to be required to be filed with the SEC.
Section 4.07 Public Announcements. Company's initial press release concerning the execution of this Agreement shall be reasonably acceptable to Parent. Thereafter, so long as this Agreement is in effect, Parent and Company shall consult with each other before issuing, and provide each other a reasonable opportunity to review and comment upon, any press release or other public statements with respect to the Merger and shall not issue, or permit their Affiliates to issue, any such press release or make any such public statement prior to such consultation, except as may be required by Law or in accordance with any listing agreement with, or the rules, requirements or requests of, any securities exchange on which such party's securities are listed or quoted (and, in such event, only if time does not reasonably permit).
28
29
premium to equal the Premium Cap. If the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger and the continuing or surviving entity does not assume the obligations of the Surviving Corporation set forth in this Section 4.09, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 4.09. Parent shall cause the Surviving Corporation to reimburse all expenses, including reasonable attorney's fees, incurred by any Person to enforce the obligations of Parent and Surviving Corporation under this Section 4.09. Company shall cooperate with Parent and its insurance broker in connection with the provision of information relating to the analysis of, and application for, insurance responsive to the requirements of this Section. The obligations of Parent under this Section 4.09 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 4.09 applies, without the consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties and the Insured Parties are each intended third party beneficiaries of this Section 4.09).
Section 4.10 Director and Officer Resignations. On the Closing Date, Company shall deliver to Parent duly executed resignations, effective as of the Effective Time, of each officer, each member of the Board of Directors of Company, and each member of the Board of Directors of each Subsidiary identified by Parent in writing to Company, provided that neither Xx. Xxxxxxxxxxx nor Xx. Xxxxxxx shall be requested to resign.
Section 4.11 Rights Agreement. As of the Effective Time, the Board of Directors of Company will have either provided for the redemption of all rights issued or outstanding pursuant to the Rights Agreement or amended the Rights Agreement, in either case such that (a) neither the execution, delivery or performance of this Agreement nor the consummation of the Transactions contemplated hereby will (i) cause the Rights to become exercisable, (ii) cause Parent or any of its Affiliates (as each such term is defined in the Rights Agreement) to become an Acquiring Person (as such term is defined in the Rights Agreement) or (iii) give rise to a Stock Acquisition Date or a Distribution Date (as each such term is defined in the Rights Agreement), and (b) the Rights will expire or be redeemed and cancelled immediately prior to the Effective Time (but conditioned upon completion of the Merger).
Section 4.12 Real Property Matters. In the event that Parent elects (at its own discretion and expense) to obtain an ALTA owner's or lessee's policy of title insurance or ALTA survey with respect to any Owned Real Property or Leased Real Property (or any update of Company's existing polices or surveys), Company agrees that it shall reasonably and customarily cooperate with Parent's efforts to obtain any such policies or surveys (or updates thereof), including, without limitation, by providing affidavits and other similar instruments reasonably required by the applicable title company for the deletion of any standard or printed exceptions in such title policies that are customarily deleted by virtue of a seller delivering such instruments in commercial real estate transactions in the state in which the applicable Owned Real Property or Leased Real Property is located.
30
Section 4.13 Payment of Transaction Costs by Parent or Acquisition Sub. At the Closing and immediately following the Effective Time, Parent or the Surviving Corporation will, without limitation, make the payments set forth on Schedule 4.13.
ARTICLE V.
CONDITIONS TO THE MERGER
Section 5.01 Conditions to Each Party's Obligation to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the satisfaction or waiver (in writing) on or prior to the Effective Time of the following conditions:
(a) This Agreement shall have been approved and adopted by the Requisite Shareholder Vote;
(b) No Law or Order shall have been promulgated, enacted, entered or enforced, and no other action shall have been taken, by any Governmental Entity that in any of the foregoing cases has the effect of making illegal or directly or indirectly restraining, prohibiting or restricting the consummation of the Merger;
(c) Neither party shall be subject to an injunction or other Order prohibiting or otherwise restraining the Merger (and in the event that either party is subject to such an injunction or other Order, it shall use its commercially reasonable efforts to cause dissolution or other termination of such injunction or other Order, including the exercise of rights of appeal afforded by law); and
(d) The waiting period (and any extension thereof) under the HSR Act applicable to the Merger, if any, shall have expired or been terminated.
(a) Representations and Warranties. The representations and warranties of Company that are qualified as to materiality or by the term "Material Adverse Effect" shall be true and correct in all material respects, and those that are not so qualified will be true and correct in all material respects, as of the Closing Date as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct as of such specified date); provided, however, that the foregoing condition shall be deemed to have been satisfied unless the effect of any failures of the representations and warranties of Company to be true and correct (subject to the provisions above) give rise, or would reasonably be expected to give rise, to a Material Adverse Effect;
31
(c) Certificate. Parent shall have received a certificate signed on behalf of Company by its chief operating officer and chief financial officer certifying that the conditions set forth in Sections 5.02(a) and 5.02(b) have been satisfied; and
(d) No Material Adverse Effect. During the period from the date this Agreement to the Closing Date, there shall not have been a Material Adverse Effect.
(a) Representations and Warranties. The representations and warranties of Parent and Acquisition Sub that are qualified as to materiality or by the term "Parent Material Adverse Effect" shall be true and correct in all material respects, and those that are not so qualified will be true and correct in all material respects, as of the Closing Date as though made on and as of such date (unless any such representation or warranty is made only as of a specific date, in which event such representation and warranty shall be true and correct as of such specified date); provided, however, that the foregoing condition shall be deemed to have been satisfied unless the effect of any failures of the representations and warranties of Parent and Acquisition Sub to be true and correct (subject to the provisions above) would reasonably be expected to give rise to a Parent Material Adverse Effect;
(b) Performance of Obligations of Parent and Acquisition Sub. Parent and Acquisition Sub shall have performed in all material respects all obligations, and complied in all material respects with all agreements and covenants, required to be performed by them under this Agreement at or prior to the Closing Date; and
(c) Certificate. Company shall have received a certificate signed on behalf of Parent by its chief executive officer and chief financial officer certifying that the conditions set forth in Section 5.03(a) and 5.03(b) have been satisfied.
ARTICLE VI.
TERMINATION, AMENDMENT AND WAIVER
(a) Termination by Mutual Consent. By the mutual written consent of Parent and Company, by action of their respective Boards of Directors;
(b) Termination by either Parent or Company. By either of Parent or Company:
(i) if any Law shall have been promulgated that prohibits the consummation of the Merger or if any Governmental Entity of competent jurisdiction shall have issued an Order or taken any other action (which Order or other action each party hereto shall use its
32
commercially reasonable efforts to have vacated or reversed in accordance with Section 4.08), in each case permanently restraining, enjoining or otherwise prohibiting any of the Transactions and such Order or other action shall have become final and non-appealable; or
(c) Termination by Parent. By Parent:
(ii) if the Board of Directors of Company (A) shall have failed to include the Company Board Recommendation in the Proxy Statement or shall have withdrawn, modified or changed (it being understood and agreed that any "stop-look-and-listen" communication by the Board of Directors of Company to the shareholders of Company pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the shareholders of Company in connection with the commencement of a tender offer or exchange offer containing the substance of a "stop-look-and-listen" communication pursuant to Rule 14d-9(f), shall not be deemed to constitute a withdrawal, modification or change of its recommendation of this Agreement) the Company Board Recommendation in any manner adverse to the Transactions, to Parent or to Acquisition Sub, or (B) shall have approved or recommended to the shareholders of Company any Acquisition Proposal other than the Transactions contemplated hereby.
(d) Termination by Company. By Company:
33
(ii) in connection with approving or recommending, or entering into, a definitive agreement with respect to a Superior Proposal in accordance with Section 4.02(b)(i).
Section 6.03 Fees and Expenses.
(a) Except as otherwise provided in this Section 6.03, whether or not the Merger is consummated, all fees, costs and expenses incurred in connection with this Agreement and the Transactions contemplated by this Agreement shall be paid by the party incurring such fees, costs and expenses.
(b) If this Agreement is terminated by Company pursuant to Section 6.01(d)(ii) or by Parent pursuant to Section 6.01(c)(ii), then Company shall pay $1,750,000.00 (the "Termination Fee") to Parent, at or prior to the time of, and as a pre-condition to the effectiveness of, such termination, which amount shall be payable by wire transfer of same day funds; provided, however, that Parent shall not be entitled to be paid the Termination Fee if it is then in material breach of its obligations pursuant to this Agreement. The Termination Fee is payable as liquidated damages and not as a penalty, is in lieu of any other claims for breach or damages upon a termination of this Agreement by Company or Parent pursuant to Section 6.01(d)(ii) or Section 6.01(c)(ii), respectively, and is agreed by the parties to be reasonable in light of the costs and expenses borne and to be borne by Parent in furtherance of consummation of the Transactions and the losses and competitive disadvantage Parent would suffer as a result of devoting significant attention to consummation of the Transactions to the exclusion of pursuing other business opportunities.
ARTICLE VII.
GENERAL PROVISIONS
Section 7.01 Non-Survival of Representations and Warranties; Limitation on Warranties.
34
(b) Except for the representations and warranties contained in this Agreement, the schedules to this Agreement and any agreements or certificates delivered pursuant to this Agreement, Company makes no other express or implied representation or warranty to Parent or Acquisition Sub. Parent and Acquisition Sub each acknowledge that, in entering into this Agreement, it has not relied on any representations or warranties of Company other than the representations and warranties of Company set forth in this Agreement, the schedules to this Agreement or any agreements or certificates delivered pursuant to this Agreement.
(c) Except for the representations and warranties contained in this Agreement, the schedules to this Agreement and any agreements or certificates delivered pursuant to this Agreement, Parent and Acquisition Sub make no other express or implied representation or warranty to Company. Company acknowledges that, in entering into this Agreement, it has not relied on any representations or warranties of Parent and Acquisition Sub other than the representations and warranties of Parent and Acquisition Sub set forth in this Agreement, the schedules to this Agreement or any agreements or certificates delivered pursuant to this Agreement.
(d) In connection with Parent and Acquisition Sub's investigation of Company, Parent and Acquisition Sub received certain projections, including projected statements of operating revenues and income from operations of Company's business and certain business plan information. Parent and Acquisition Sub acknowledge that there are uncertainties inherent in attempting to make such estimates, projections and other forecasts and plans, that Parent and Acquisition Sub are familiar with such uncertainties and that Parent and Acquisition Sub are taking full responsibility for making their own evaluation of the adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to it, including reasonableness of the assumptions underlying such estimates, projections and forecasts and that, absent fraud or willful misrepresentation, Parent and Acquisition Sub shall have no claim against anyone with respect thereto. Accordingly, Parent and Acquisition Sub acknowledge that Company is making no representation or warranty with respect to such estimates, projections and other forecasts and plans, including the reasonableness of the assumptions underlying such estimates, projections and forecasts, except to the extent expressly included herein.
35
Section 7.04 Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned by any of the parties to this Agreement (whether by operation of Law or otherwise) without the prior written consent of the other party. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
Section 7.06 Validity. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that Transactions are fulfilled to the maximum extent possible.
(a) If to Parent or Acquisition Sub:
x/x Xxxxxxxxxx Xxxxxxx Xxxxxxxx XX, X.X. 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Fax: 000-000-0000Attn: Xxxxx Xxxxx
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
36
Attn: Xxxxxxx X. Xxxx, Esq.
(b) If to Company:
XXXX, Inc.
0000 Xxxxxxxxx Xx
X.X. Xxx 000
Xxxxxxxxx, Xxx Xxxx 00000-0000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxxxxxxxx
With a copy to:
Xxxxxxxxxxx, D'Xxxxxx, Xxxxxxxxxxx, and Xxxxxxxxxx
1600 Crossroads Xxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx, 00000
Fax: 000-000-0000
Attn: Xxxxxx Xxxxxxxxxxx
Section 7.08 Law Governing Agreement; Jurisdiction. This Agreement shall be construed and interpreted according to the internal Laws of the State of New York excluding any choice of Law rules that may direct the application of the Laws of another jurisdiction.
Section 7.10 Counterparts. This Agreement may be executed in one or more counterparts (including via facsimile), and by the different parties to this Agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which shall constitute one and the same agreement.
37
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.11.
Section 7.14 Waiver. At any time prior to the Effective Time and to the extent legally permitted, any party to this Agreement may, with respect to the other parties to this Agreement, (a) extend the time for the performance of any of the obligations or other acts (except to the extent prohibited by Law), (b) waive any inaccuracies in the representations and warranties contained in this Agreement or in any document delivered pursuant to this Agreement and (c) waive compliance with any of the agreements or conditions contained in this Agreement. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the party or parties to be bound thereby. The failure of any party to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.
Section 7.16 Definitions. For purposes of this Agreement, the term:
38
"Acquisition Proposal" shall have the meaning set forth in Section 4.02(c).
"Acquisition Sub" shall have the meaning set forth in the preamble of this Agreement.
"Affiliate" of a Person shall mean a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned Person.
"Agreement" shall have the meaning set forth in the preamble of this Agreement.
"Available Company SEC Documents" shall mean all reports, schedules, forms, statements and other documents filed by Company with the SEC during the three year period prior to the date of this Agreement, and publicly available prior to the date of this Agreement.
"BCL" shall mean the New York Business Corporation Law.
"Board of Directors" shall mean the Board of Directors of Company.
"Buckingham"means Buckingham Capital Partners II, LP, a Delaware Limited Partnership,
"Business Day" means a day other than Saturday, Sunday or any day on which banks located in the state of New York are authorized or obligated to close.
"Certificate of Merger" shall have the meaning set forth in Section 1.02(b).
"Certificates" shall have the meaning set forth in Section 1.08(b).
"Closing" shall have the meaning set forth in Section 1.02(a).
"Closing Date" shall have the meaning set forth in Section 1.02(a).
"Code" shall mean the Internal Revenue Code of 1986, as amended, and all regulatory guidance thereunder.
"Common Stock" shall mean the common stock, par value $0.01 per share, of Company.
"Company" shall have the meaning set forth in the preamble of this Agreement.
"Company Board Recommendation" shall have the meaning set forth in Section 3.23.
"Company Financials" shall have the meaning set forth in Section 3.03(b).
"Company Form 10-K" shall have the meaning set forth in Section 3.03(b).
"Company Intellectual Property" shall have the meaning set forth in Section 3.16(a).
"Company SEC Documents shall have the meaning set forth in Section 3.03(b).
39
"Company Shareholders' Meeting" shall have the meaning set forth in Section 3.21.
"Company's Financial Advisor" shall have the meaning set forth in Section 3.22.
"Confidentiality Agreement" means that certain confidentiality agreement, dated July 6, 2006, between Buckingham Capital Partners, L.P. and the Company's Financial Advisor.
"Confidential Information" shall have the meaning set forth in Section 4.03(a).
"Constituent Corporations" means Company and Acquisition Sub, as the constituent corporations of the Merger.
"Contract" shall mean all written contracts, purchase orders, sales orders, licenses, leases and other agreements, commitments, arrangements and understandings.
"Dissenting Shares" shall have the meaning set forth in Section 1.07(b).
"Effective Time" shall have the meaning set forth in Section 1.02(b).
"Employee Benefit Plans" shall have the meaning set forth in Section 3.15(a).
"Environmental Claims" shall mean any administrative, regulatory or judicial actions, Orders, decrees, suits, Litigation, demands, demand letters, directives, threats, claims, Liens, investigations, proceedings or notices of noncompliance or violation by any Governmental Entity or other Person alleging liability or potential liability arising out of, based on or related to (i) the presence, Release or threatened Release of, or exposure to, any Hazardous Substances at any location, whether or not owned, operated, leased or managed by Company or any Subsidiary, or (ii) any other circumstances forming the basis of any violation or alleged violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any federal, state, municipal, local, foreign or other statutes, Laws, ordinances, rules or regulations, Orders, decrees, common law principles, judgments or binding agreements issued, promulgated or entered into by or with any Governmental Entity relating to regulation of pollution or the protection of human health and safety, natural resources or the environment (including ambient air, surface water, groundwater, soils, subsurface strata and natural resources) including Laws concerning Hazardous Substances, including Laws and regulations relating to the presence of, exposure to, Release of or threatened Release of Hazardous Substances or otherwise relating to the generation, manufacture, processing, distribution, use, treatment, storage, recycling, transport, handling of, or the arrangement for such activities with respect to, Hazardous Substances, including the following federal statutes and their state counterparts, as each may be amended from time to time, and any regulations promulgated thereunder: the Atomic Energy Act, the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the Federal Insecticide, Fungicide, and Rodenticide Act, the Hazardous Materials Transportation Act, the Occupational Safety and Health Act, the Resource Conservation and Recovery Act and the Safe Drinking Water Act.
40
"Environmental Permits" shall mean any Permit issued specifically pursuant to, or required under, an Environmental Law expressly applicable to Company or its Subsidiaries.
"Environmental Reports" means those certain environmental site assessment reports and similar documents obtained by Parent or Acquisition Sub (or their lenders or Affiliates) in connection with the due diligence review of Company and its operations, which have been previously provided by Parent to Company and which are described on Schedule 7.16(a).
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and all regulatory guidance thereunder.
"ERISA Affiliate" shall have the meaning set forth in Section 3.15(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder).
"Existing Credit Documents" shall mean (i) Revolving Credit Agreement between Company and HSBC Bank (USA) Inc, dated September 28, 2006 and (ii) loan agreements of Company's foreign Subsidiaries listed on Schedule 7.16(b).
"Filed Contracts" shall have the meaning set forth in Section 3.13(a).
"GAAP" shall mean, at any time, generally accepted accounting principles, methods and practices then set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, and statements and pronouncements of the Financial Accounting Standards Board.
"Governmental Entity" shall mean any court, arbitrator, department, commission, board, bureau, agency, authority, instrumentality or other governmental or regulatory body, whether federal, state, municipal, county, local, foreign or other.
"Hazardous Substance" shall mean any substance which is regulated by (or would require remediation, removal or reporting under) Environmental Laws, and includes (i) any materials or substances which are defined as hazardous waste, extremely hazardous waste or a hazardous substance (or any other similar term) pursuant to state, federal or local governmental Law; (ii) asbestos and asbestos containing materials; (iii) polychlorinated biphenyls; (iv) petroleum products, including crude oil, constituents of petroleum products, and substances derived from petroleum; (v) urea formaldehyde and related substances; (vi) radon and other radioactive substances; (vii) substances which are toxic, ignitable, reactive; (viii) medical, biological, and biohazardous materials, including infectious substances, biological products, cultures and stocks, diagnostic specimen or regulated medical waste as defined in 49 CFR sec. 173.134(a) and any other infectious materials, bodily fluids, excrement or similar such wastes and (ix) mold, fungi, and other allergens.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
41
"Indebtedness" of any Person at any date shall include (i) all indebtedness (including interest payments or prepayments required prior to satisfaction) of such Person for borrowed money or for the deferred purchase price of property or services (other than current liabilities for trade payables incurred and payable in the ordinary course of business consistent with past practice), including earn-out or similar contingent purchase amounts, (ii) any other indebtedness of such Person which is evidenced by a note, mortgage, bond, debenture or similar instrument, (iii) all obligations of such Person under capitalized leases (other than the current portion of capitalized leases to the extent reflected in current liabilities), (iv) all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction, (v) all obligations of the type referred to in clauses (i) through (v) of any Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including guarantees of such obligations and (vi) all obligations of the type referred to in clauses (i) through (v) of other Persons secured by any Liens on any property or asset of such Person (whether or not such obligation is assumed by such Person).
"Indemnified Party" shall have the meaning set forth in Section 4.09.
"Insured Party" shall have the meaning set forth in Section 4.09.
"Intellectual Property" shall mean all: (i) inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith; (iii) copyrightable works, all copyrights, and all applications, registrations and renewals in connection therewith; (iv) mask works and all applications, registrations and renewals in connection therewith; (v) trade secrets; (vi) computer software (including object code, source code, data and related documentation); (vii) Internet Web sites, including domain name registrations and content and software included therein; (viii) rights to recover for past infringements of any of the foregoing owned by Company and its Subsidiaries; and (ix) all copies and tangible embodiments thereof (in whatever form or medium).
"IRS" shall mean the United States Internal Revenue Service.
"Knowledge", when used with respect to Company, shall mean the actual knowledge of the Chief Executive Officer or Chief Financial Officer of Company following a reasonable investigation or inquiry of the subject matter thereof. "Knowledge", when used with respect to Parent or Acquisition Sub, shall mean the actual knowledge of Xxxxx Xxxxx and Xxxxxx Xxxxxxx following a reasonable investigation or inquiry of the subject matter thereof.
"Laws" shall mean any applicable federal, state or local statute, law, ordinance, rule or regulation.
42
"Liability" means any direct or indirect Indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation or responsibility, fixed or unfixed, known or unknown, asserted or unasserted, liquidated or unliquidated, secured or unsecured.
"Liens" means any mortgages, title defects or objections, liens (statutory or otherwise), security interests, claims, pledges, licenses, equities, options, conditional sales contracts, assessments, levies, easements, covenants, conditions, reservations, encroachments, hypothecations, equities, restrictions, rights-of-way, exceptions, limitations, charges, possibilities of reversion, rights of refusal or encumbrances of any nature whatsoever.
"Listed Intellectual Property" shall have the meaning set forth in Section 3.16(b).
"Litigation" means any complaint, action, suit, proceeding, arbitration or other alternate dispute resolution procedure, demand, investigation or inquiry, whether civil, criminal or administrative.
"Material Adverse Effect" shall mean any fact, event, change, effect, condition, factor or circumstance that individually or in the aggregate with all other facts, changes, events, effects, conditions, factors and circumstances (i) is or is reasonably likely to be materially adverse to the business, results of operations, properties, financial condition, assets or Liabilities of Company and its Subsidiaries, taken as a whole, or (ii) impairs or adversely affects in any material respect Company's ability to perform its obligations under this Agreement or consummate the Merger or the other Transactions contemplated hereby; provided, however, that, the following shall not be taken into account in determining whether there has occurred (or whether there is reasonably likely to be) a Material Adverse Effect: (a) any event, change, effect, condition, factor or circumstance arising out of or attributable to general economic or political conditions in the United States or in worldwide capital markets or any outbreak of hostilities or war (or the material worsening of hostilities or war) or terrorist activities (except for any changes which disproportionately affect Company, its Subsidiaries or their respective results of operations, properties, condition, assets or Liabilities, taken as a whole, as compared to other Persons engaged in the industries in which Company and its Subsidiaries compete); (b) any event, change, effect, condition, factor or circumstance arising out of or attributable to the industries in which Company and its Subsidiaries conduct their businesses (except for any changes which disproportionately affect Company, its Subsidiaries or their respective results of operations, properties, condition, assets or Liabilities, taken as a whole, as compared to other Persons engaged in the industries in which Company and its Subsidiaries compete); (c) any change or effect resulting from the announcement of this Agreement, the Merger or the other Transactions contemplated hereby; or (d) changes, after the date hereof, in Laws of general applicability or changes, after the date hereof, in GAAP (except in each such case for any changes which disproportionately affect Company or its Subsidiaries or their respective results of operations, properties, condition, assets or Liabilities, taken as a whole, as compared to other Persons engaged in the industries in which Company and its Subsidiaries compete).
"Material Contracts" shall have the meaning set forth in Section 3.13(a).
"Merger" shall have the meaning set forth in the recitals of this Agreement.
43
"Merger Consideration" shall have the meaning set forth in Section 1.06(a).
"Negotiation Period" shall have the meaning set forth in Section 4.02(b)(i).
"Options" shall have the meaning set forth in Section 1.09.
"Option Cancellation Agreement" has the meaning specified in Section 1.09.
"Orders" shall mean any order, writ, injunction, judgment, plan or decree.
"Outside Date" shall have the meaning set forth in Section 6.01(b)(ii).
"Owned Real Property" shall have the meaning set forth in Section 3.11(b).
"Parent" shall have the meaning set forth in the preamble of this Agreement.
"Parent Information" shall have the meaning set forth in Section 2.05.
"Parent Material Adverse Effect" shall mean a material adverse effect on the ability of Parent or Acquisition Sub to perform its obligations under this Agreement or consummate the Transactions.
"Permit" shall mean any permit, license, variance, exemption, authorization, certificate, franchise, Order or approval of any Governmental Entity.
"Permitted Lien" means any (i) Lien which constitutes or arises out of current state or local Taxes or assessments not yet due and payable or being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (ii) materialmen's, mechanics', workmen's or repairmen's Lien in each case created in the ordinary course of business and in each case securing obligations (A) not more than 30 days past due and (B) in any amount less than $10,000, individually, and $100,000, in the aggregate, (iii) Lien under the Existing Credit Documents, (iv) Lien securing Indebtedness (including purchase money Indebtedness) on assets other than real property, incurred in the ordinary course of business and consistent with past practice after the date thereof, (v) Zoning and building ordinances and land use and environmental regulations, to the extent the foregoing have not been violated, (vi) Lien in favor of landlords with respect to any Real Property Leases, and (vii) Lien, easement, right of way, or other imperfection of title agreements, conditions and restrictions that would be shown by a current survey, title report or physical inspections, and zoning building and other similar restrictions, in each case the existence of which does not, and would not reasonably be expected to, materially impair the value of, or use and enjoyment of, any Owned Real Property or any Leased Real Property, or materially adversely affect the operation by Company of its business (as conducted as of the date hereof) thereon.
"Person" shall mean an individual, corporation, partnership, association, trust, any unincorporated organization or group (within the meaning of Section 13(d)(3) of the Exchange Act).
"Premium Cap" shall have the meaning set forth in Section 4.09.
44
"Proxy Statement" shall have the meaning set forth in Section 3.21.
"Real Property Lease" means each Agreement under which Company or any Subsidiary is landlord, sublandlord, tenant, subtenant or occupant with respect to real property.
"Release" shall mean any active or passive release, spilling, emitting, pumping, emptying, escaping, leaking, dumping, injecting, pouring, deposit, disposing, discharging, dispersal, leaching or migration into or through the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
"Representatives" shall have the meaning set forth in Section 4.02(a).
"Requisite Shareholder Vote" means the adoption of this Agreement by the shareholders of Company in accordance with the Certificate of Incorporation or By-Laws of Company and the BCL.
"Rights" shall have the meaning set forth in Section 3.01(c).
"Rights Agreement" shall mean that certain Rights Agreement, dated as of March 19, 1999 between Company and Continental Stock Transfer and Trust Company as Rights Agent thereunder.
"Xxxxxxxx-Xxxxx Act" shall mean the Xxxxxxxx-Xxxxx Act of 2002.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended (including the rules and regulations promulgated thereunder).
"Share" shall have the meaning set forth in Section 1.06(a).
"Stock Plans" shall have the meaning set forth in Section 1.09.
"Subsidiary" shall mean any corporation, partnership, joint venture or other organization or entity, whether incorporated or unincorporated, of which (i) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by Company or by any one or more of its Subsidiaries, or by Company and one or more of its Subsidiaries or (ii) Company or any of its Subsidiaries is a general partner or managing member or otherwise has the ability to elect a majority of the directors, trustees or managing members thereof.
"Superior Proposal" shall have the meaning set forth in Section 4.02(c).
"Surviving Corporation" shall have the meaning set forth in Section 1.01.
45
"Taxes or Tax" means all federal, state, local and foreign taxes (including income or profits taxes, alternative or add-on minimum taxes, profits or excess profits taxes, premium taxes, occupation taxes, excise taxes, sales taxes, use taxes, gross receipts taxes, franchise taxes, ad valorem taxes, severance taxes, capital levy taxes, prohibited transaction taxes, transfer taxes, value added taxes, employment and payroll-related taxes (including employee withholding or employer payroll tax, FICA or FUTA), real or personal property taxes, business license taxes, occupation taxes, stamp taxes or duties, withholding or back up withholding taxes, import duties and other governmental charges and assessments), of any kind whatsoever, including charges, interest, additions to tax and penalties with respect thereto, it being agreed that the foregoing shall include any transferee or secondary liability for a Tax and any liability assumed by agreement or arising as a result of being or ceasing to be a member of any affiliated group or being included or required to be included in any Tax Return.
"Taxable Period" means any taxable year or any other period that is treated as a taxable year (or other period, or portion thereof, in the case of a Tax imposed with respect to such other period, e.g., a quarter) with respect to which any Tax may be imposed under any applicable Law.
"Tax Returns" shall mean any return, declaration, report, statement, estimate, claim for refund, or information return or statement relating to, or required to be filed in connection with, any Taxes or Employee Benefit Plan, including any schedule, form, attachment or amendment.
"Termination Fee" shall have the meaning set forth in Section 6.03(a).
"Transactions" shall have the meaning set forth in Section 2.01.
"Voting Debt" shall have the meaning set forth in Section 3.01(c).
[Signatures Appear On Next Page]
46
IN WITNESS WHEREOF, Parent, Acquisition Sub and Company have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
|
BUCKINGHAM XXXX, INC. |
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxx Xxxxx |
|
Name: |
Xxxxx Xxxxx |
|
Title: |
President |
|
|
|
|
|
|
|
|
|
|
BUCKINGHAM XXXX ACQUISITION CORP. |
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxx Xxxxx |
|
Name: |
Xxxxx Xxxxx |
|
Title: |
President |
|
|
|
|
|
|
|
|
|
|
XXXX, INC. |
|
|
|
|
|
|
|
|
By: |
/s/ Xxxxxx X. Xxxxxxxxxxx |
|
Name: |
Xxxxxx X. Xxxxxxxxxxx |
|
Title: |
President and Chief Executive Officer |
Index of Schedules and Exhibits*
Schedules
Schedule 1.09(b) Option Cancellation Consideration
Schedule 3.01(b) List of Subsidiaries
Schedule 3.01(c) Options
Schedule 3.03(a) Defaults
Schedule 3.06 Tax Returns
Schedule 3.06(c) Tax Return Examinations
Schedule 3.06(d) Tax Matters
Schedule 3.07 Absence of Changes
Schedule 3.09(e) Environmental Claims
Schedule 3.09(f) Hazardous Substances
Schedule 3.10(b) Compliance with Laws
Schedule 3.11(a) Title to Properties
Schedule 3.11(b) Owned Real Property
Schedule 3.11(c) Leased Real Property
Schedule 3.11(e) Zoning Violations
Schedule 3.11(f) Real Property Leased to Third Parties
Schedule 3.12 Insurance
Schedule 3.13(a) Material Contracts
Schedule 3.14 Labor Matters
Schedule 3.15(a) Employee Benefit Plans
Schedule 3.15(c) Changes to Employee Benefit Plans
Schedule 3.15(f) Employee Benefit Plan Payments
Schedule 3.16(b) Listed Intellectual Property
Schedule 3.17 Undisclosed Liabilities
Schedule 3.18 Sufficiency of Assets
Schedule 3.19 Suppliers
Schedule 4.01 Conduct of Business Pending Closing
Schedule 4.13 Transaction Costs
Schedule 7.16(a) Environmental Reports
Schedule 7.16(b) Foreign Subsidiary Loan Agreements
Exhibits
Exhibit A Form of Option Cancellation Agreement
Copies of the foregoing schedules and exhibits will be furnished to the Securities and Exchange Commission upon request
