EXHIBIT 2.07
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
RAINDANCE COMMUNICATIONS, INC.,
WEST CORPORATION
AND
ROCKIES ACQUISITION CORPORATION
DATED AS OF FEBRUARY 6, 2006
TABLE OF CONTENTS
PAGE
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Parties 1
Preamble 1
ARTICLE 1 -- TRANSACTIONS AND TERMS OF MERGER............................................. 1
1.1 Merger...................................................................... 1
1.2 Time and Place of Closing................................................... 1
1.3 Effective Time.............................................................. 1
1.4 Effect on Raindance Common Stock............................................ 1
1.5 West Common Stock and Merger Sub Common Stock............................... 2
1.6 Raindance Stock Options and Other Incentive Awards.......................... 2
1.7 Warrants.................................................................... 3
1.8 Organizational Documents of Surviving Corporation; Directors and Officers... 4
ARTICLE 2 -- PAYMENT...................................................................... 4
2.1 Exchange Procedures......................................................... 4
2.2 Rights of Former Raindance Stockholders..................................... 5
2.3 Dissenters' Rights.......................................................... 5
ARTICLE 3 -- REPRESENTATIONS AND WARRANTIES............................................... 6
3.1 Disclosure Letters.......................................................... 6
3.2 Standards................................................................... 6
3.3 Representations and Warranties of Raindance................................. 7
3.4 Representations and Warranties of West...................................... 18
ARTICLE 4 -- COVENANTS AND ADDITIONAL AGREEMENTS.......................................... 20
4.1 Conduct of Business Prior to Effective Time................................. 20
4.2 Forbearances................................................................ 20
4.3 State Filings............................................................... 22
4.4 Raindance Stockholders Approval............................................. 22
4.5 Reasonable Best Efforts..................................................... 23
4.6 Notification of Certain Matters............................................. 24
4.7 Investigation and Confidentiality........................................... 25
4.8 Press Releases; Publicity................................................... 25
4.9 Acquisition Proposals....................................................... 25
4.10 Takeover Laws............................................................... 27
4.11 Employee Benefits and Contracts............................................. 27
4.12 Indemnification............................................................. 27
4.13 Director Resignations....................................................... 29
4.14 Financing................................................................... 29
ARTICLE 5 -- CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE............................ 29
5.1 Conditions to Obligations of Each Party..................................... 29
5.2 Conditions to Obligations of West........................................... 29
5.3 Conditions to Obligations of Raindance...................................... 30
ARTICLE 6 -- TERMINATION.................................................................. 31
6.1 Termination................................................................. 31
6.2 Effect of Termination....................................................... 32
ARTICLE 7 -- MISCELLANEOUS.............................................................. 32
7.1 Definitions............................................................... 32
7.2 Non-Survival of Representations and Covenants............................. 39
7.3 Expenses.................................................................. 39
7.4 Termination Fee........................................................... 40
7.5 Entire Agreement.......................................................... 40
7.6 Amendments................................................................ 40
7.7 Waivers................................................................... 41
7.8 Assignment................................................................ 41
7.9 Notices................................................................... 41
7.10 Governing Law............................................................. 42
7.11 Counterparts.............................................................. 42
7.12 Captions.................................................................. 42
7.13 Interpretations........................................................... 42
7.14 Severability.............................................................. 42
LIST OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
--------- --------------------------------------------------
A Organizational Documents of Surviving Corporation
B Officers of Surviving Corporation
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of February 6, 2006, by and among Raindance Communications, Inc., a
Delaware corporation ("Raindance"), West Corporation, a Delaware corporation
("West"), and Rockies Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of West ("Merger Sub").
PREAMBLE
The Boards of Directors of Raindance, Merger Sub and West have approved
this Agreement and the transactions described herein. This Agreement provides
for the acquisition of Raindance by West pursuant to the merger of Merger Sub
with and into Raindance.
Certain terms used and not otherwise defined in this Agreement are defined
in Section 7.1.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants, and agreements set forth herein, and intending to be
legally bound hereby, the Parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 MERGER. Subject to the terms and conditions of this Agreement, at the
Effective Time, Merger Sub shall be merged with and into Raindance in accordance
with the provisions of Section 251 of the DGCL and with the effect provided in
Section 259 of the DGCL (the "Merger"). Raindance shall be the surviving
corporation (the "Surviving Corporation") resulting from the Merger, shall
continue to be governed by the Laws of the State of Delaware, shall become a
wholly owned subsidiary of West, and the separate corporate existence of
Raindance with all of its rights, privileges, immunities, powers and franchises
shall continue unaffected by Merger.
1.2 TIME AND PLACE OF CLOSING. The closing of the Merger (the "Closing")
shall take place at such time and place as West and Raindance shall agree, on
the date when the Effective Time is to occur (the "Closing Date"), which shall
be no later than the second business day after satisfaction or waiver of the
conditions set forth in Article 5 (other than those conditions that by their
nature are to be satisfied at the Closing, but subject to the satisfaction or
waiver of such conditions), unless another time or date, or both, are agreed to
in writing by the Parties hereto.
1.3 EFFECTIVE TIME. Subject to the terms and conditions of this Agreement,
on the Closing Date, the Parties will cause a certificate of merger to be filed
with the Secretary of State of the State of Delaware as provided in Section 251
of the DGCL (the "Certificate of Merger"). The Merger shall take effect when the
Certificate of Merger becomes effective (the "Effective Time").
1.4 EFFECT ON RAINDANCE COMMON STOCK.
(a) At the Effective Time, in each case subject to Section 1.4(d),
by virtue of the Merger and without any action on the part of the Parties or the
holder thereof, each share of Raindance Common Stock that is issued and
outstanding immediately prior to the Effective Time (other than shares
of Raindance Common Stock held by any Party or any Subsidiary of a Party (in
each case other than shares of Raindance Common Stock held on behalf of third
parties) or shares of the Common Stock (the "Dissenting Shares") that are owned
by stockholders properly exercising their appraisal rights pursuant to Section
262 of the DGCL) shall be converted into the right to receive $2.70 (the "Per
Share Purchase Price") in cash, less any applicable withholding Taxes (the
"Merger Consideration").
(b) At the Effective Time, all shares of Raindance Common Stock
shall no longer be outstanding and shall automatically be cancelled and retired
and shall cease to exist as of the Effective Time, and each certificate or
electronic book-entry previously representing any such shares of Raindance
Common Stock (the "Certificates") shall thereafter represent only the right to
the Merger Consideration and any Dissenting Shares shall thereafter represent
only the right to receive applicable payments as set forth in Section 2.3.
(c) If, prior to the Effective Time, the outstanding shares of
Raindance Common Stock shall have been increased, decreased, changed into or
exchanged for a different number or kind of shares or securities as a result of
a reorganization, recapitalization, reclassification, stock dividend, stock
split, reverse stock split, or other similar change in capitalization, then an
appropriate and proportionate adjustment shall be made to the Per Share Purchase
Price.
(d) Each share of Raindance Common Stock issued and outstanding
immediately prior to the Effective Time and owned by any of the Parties or their
respective Subsidiaries (in each case other than shares of Raindance Common
Stock held on behalf of third parties) shall, by virtue of the Merger and
without any action on the part of the holder thereof, cease to be outstanding,
shall be cancelled and retired without payment of any consideration therefore
and shall cease to exist (together with the Dissenting Shares, the "Excluded
Shares").
1.5 WEST COMMON STOCK AND MERGER SUB COMMON STOCK.
(a) At and after the Effective Time, each share of West Common Stock
issued and outstanding immediately prior to the Effective Time shall remain an
issued and outstanding share of West Common Stock and shall not be affected by
the Merger.
(b) At the Effective Time, each share of Merger Sub Common Stock
issued and outstanding immediately prior to the Effective Time shall be
converted into one share of common stock of the Surviving Corporation.
1.6 RAINDANCE OPTIONS AND OTHER INCENTIVE AWARDS.
(a) As of the Effective Time, each Raindance Option then outstanding
shall, subject to Section 1.6(a) of Raindance's Disclosure Letter, become fully
vested and exercisable. Each holder of a Raindance Option shall be given the
opportunity to exercise such Raindance Option, effective as of the Effective
Time and contingent upon the Closing, and thereby to become a stockholder of
Raindance entitled to receive the Merger Consideration in accordance with the
provisions hereof. Each Raindance Option outstanding as of the Effective Time
that is not exercised as provided in this Section 1.6(a) shall be cancelled and
the holder thereof shall be entitled, as of the Effective Time, to receive from
the Surviving Corporation an amount of cash (without interest) equal to the
product of (x) the total number of shares of Raindance Common Stock subject to
such Raindance Option multiplied by (y) the excess, if any, of the amount of the
Per Share Purchase Price over the exercise price per share of Raindance Common
Stock under such Raindance Option (with the aggregate amount of such payment
rounded down to the nearest cent) less applicable Taxes, if any, required to be
withheld with respect to such payment.
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As soon as practicable after the Effective Time, West shall pay, or shall cause
the Surviving Corporation to pay, the amounts owed pursuant to the cancellation
of unexercised Raindance Options pursuant to this Section 1.6(a).
(b) As of the Effective Time, each outstanding restricted stock
award (including restricted stock awards subject to Raindance's
performance-based incentive compensation program) shall, subject to Section
1.6(b) of Raindance's Disclosure Letter, become fully vested and shall entitle
the holder thereof to receive, as soon as practicable after the Effective Time
and in accordance with Section 2.1, an amount in cash (without interest) equal
to the product of the total number of shares of Raindance Common Stock subject
to such restricted stock award, multiplied by the Per Share Purchase Price, less
applicable Taxes, if any, required to be withheld with respect to such payment.
(c) As full satisfaction of any and all cash bonus arrangements
under Raindance's performance-based incentive compensation program, each
individual participant in such program shall receive from the Surviving
Corporation, contingent upon, and as promptly as practicable after, the
Effective Time, an amount (without interest) determined prior to the Effective
Time by the Compensation Committee of the Board of Directors of Raindance, which
amount shall not exceed the amount set forth opposite the participant's
respective name in Section 1.6(c) of Raindance's Disclosure Letter, less
applicable Taxes, if any, required to be withheld with respect to such payment.
Raindance shall take all actions necessary to provide that Raindance's
performance-based incentive compensation program shall be terminated, without
further obligation of West or the Surviving Corporation, effective as of the
Effective Time. As soon as practicable after the Effective Time, West shall, or
shall cause the Surviving Corporation, to pay the amounts owed pursuant to this
Section 1.6(c).
(d) The compensation committee of the Board of Directors of
Raindance shall make such adjustments and amendments to or make such
determinations with respect to the Raindance Options, restricted stock units and
performance-based incentive awards to implement the foregoing provisions of this
Section 1.6.
(e) Raindance shall take all actions with respect to the Raindance
Employee Stock Purchase Plan (the "ESPP") necessary (a) to provide that the
current exercise period scheduled to end on February 15, 2006 (the "Final
Exercise Period") shall end on the earlier of (i) February 15, 2006, or (ii) a
date prior to the Effective Time, as provided in the ESPP, (b) to terminate the
ESPP as of the Effective Time, and (c) to provide that no new exercise periods
shall be commenced under the ESPP following the termination of the Final
Exercise Period.
(f) Raindance shall take such steps as may be reasonably requested
by any Party hereto to cause dispositions of Raindance equity securities
(including derivative securities) pursuant to the transactions contemplated by
this Agreement by each individual who is a director or officer of Raindance to
be exempt under Rule 16b-3 promulgated under the 1934 Act in accordance with
that certain No-Action Letter dated January 12, 1999 issued by the SEC regarding
such matters.
1.7 WARRANTS. West shall pay each holder (each a "Warrantholder") of a
warrant to purchase shares of Raindance Common Stock (each, a "Raindance
Warrant"), upon surrender of such Warrant, an amount in cash (without interest)
equal to the product obtained by multiplying (x) the total number of shares of
Raindance Common Stock issuable upon the exercise in full of each Raindance
Warrant held by such Warrantholder by (y) the excess, if any, of the amount of
the Per Share Purchase Price over the exercise price per share of Raindance
Common Stock under such Raindance Warrant (with the aggregate amount of such
payment rounded down to the nearest cent) less applicable Taxes, if any,
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required to be withheld with respect to such payment. No consideration shall be
paid for any Raindance Warrant the exercise price per share of Raindance Common
Stock under which exceeds the Per Share Purchase Price. Any Raindance Warrant
not surrendered for cancellation as provided above shall survive the Merger and
shall become a warrant to receive, upon payment of the exercise price provided
for therein, an amount of cash based on the Per Share Purchase Price in
accordance with the merger adjustment provisions of each such Raindance Warrant.
1.8 ORGANIZATIONAL DOCUMENTS OF SURVIVING CORPORATION; DIRECTORS AND
OFFICERS.
(a) As of the Effective Time, the Organizational Documents of
Raindance shall be amended to read as set forth in Exhibit A hereto and, as so
amended, shall be the Organizational Documents of the Surviving Corporation
until thereafter amended as provided therein or by applicable Law.
(b) The directors of Merger Sub immediately prior to the Effective
Time shall be the directors of the Surviving Corporation as of the Effective
Time, until the earlier of their resignation or removal or otherwise ceasing to
be a director or until their respective successors are duly elected and
qualified, as the case may be.
(c) The persons set forth on Exhibit B shall be the officers of the
Surviving Corporation as of the Effective Time, until the earlier of their
resignation or removal or otherwise ceasing to be an officer.
ARTICLE 2
PAYMENT
2.1 PAYMENT PROCEDURES.
(a) At or prior to the Effective Time, West shall deposit, or shall
cause to be deposited, with a paying agent (the "Paying Agent") appointed by
West (with the approval of Raindance), for the benefit of the holders of the
Certificates, for exchange in accordance with Article 1 and this Article 2, cash
sufficient to pay the aggregate Merger Consideration in exchange (the "Exchange
Fund") for outstanding shares of Raindance Common Stock immediately prior to the
Effective Time (other than Excluded Shares).
(b) As promptly as practicable after the Effective Time, West shall
send or cause to be sent to each former holder of record of shares of Raindance
Common Stock immediately prior to the Effective Time transmittal materials for
use in exchanging such holder's Certificates for the Merger Consideration (which
shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of such Certificates to the
Paying Agent). Upon the surrender of a Certificate (or effective affidavit of
loss in lieu thereof as provided in Section 2.1(d)) to the Paying Agent in
accordance with the terms of such letter of transmittal, duly executed, the
holder of such Certificate shall be entitled to receive in exchange therefore a
check in the amount (after giving effect to any required Tax withholdings) of
(x) the number of shares of Raindance Common Stock represented by such
Certificate (or effective affidavit of loss in lieu thereof) multiplied by (y)
the Per Share Purchase Price, and the Certificate so surrendered shall forthwith
be cancelled. No interest will be paid or accrued on any amount payable upon due
surrender of the Certificates. In the event of a transfer of ownership of shares
of Raindance Common Stock that is not registered in the transfer records of
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Raindance, a check for any cash to be paid upon due surrender of the Certificate
may be paid to such a transferee if the Certificate formerly representing such
shares of Raindance Common Stock is presented to the Paying Agent, accompanied
by all documents required to evidence and effect such transfer and to evidence
that any applicable stock transfer taxes have been paid or are not applicable.
(c) Notwithstanding the foregoing, neither the Paying Agent nor any
Party shall be liable to any former holder of Raindance Common Stock for any
amount properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar Laws.
(d) If any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the Person claiming such
Certificate to be lost, stolen or destroyed and, if required by the Paying
Agent, the posting by such Person of a bond in such reasonable amount as the
Paying Agent may direct as indemnity against any claim that may be made against
it with respect to such Certificate, West or the Paying Agent shall, in exchange
for the shares of Raindance Common Stock represented by such lost, stolen or
destroyed Certificate, pay or cause to be paid the amounts, if any, deliverable
in respect to the shares of Raindance Common Stock formerly represented by such
Certificate pursuant to this Agreement.
(e) Any portion of the Exchange Fund that remains unclaimed by the
holders of Raindance Common Stock for 12 months after the Effective Time shall
be returned to West. Any holders of Raindance Common Stock who have not
theretofore complied with this Article 2 shall thereafter look only to West for
payment of the consideration deliverable in respect of each share of Raindance
Common Stock such holder holds as determined pursuant to this Agreement, in each
case, without any interest thereon.
2.2 RIGHTS OF FORMER RAINDANCE STOCKHOLDERS. At the Effective Time, the
stock transfer books of Raindance shall be closed as to holders of Raindance
Common Stock and no transfer of Raindance Common Stock by any such holder shall
thereafter be made or recognized. Until surrendered for exchange in accordance
with the provisions of Section 2.1, each Certificate (other than Certificates
representing Excluded Shares) shall from and after the Effective Time represent
for all purposes only the right to receive the Merger Consideration in exchange
therefor.
2.3 DISSENTERS' RIGHTS. Any Person who otherwise would be deemed a
Dissenting Stockholder shall not be entitled to receive the applicable Merger
Consideration with respect to the shares of Raindance Common Stock owned by such
Person unless and until such Person shall have failed to perfect or shall have
effectively withdrawn or lost such holder's right to dissent from the Merger
under the DGCL. Each Dissenting Stockholder shall be entitled to receive only
the payment provided by Section 262 of the DGCL with respect to shares of
Raindance Common Stock owned by such Dissenting Stockholder. Raindance shall
give West (i) prompt notice of any written demands for appraisal, attempted
withdrawals of such demands, and any other instruments served pursuant to
applicable Law received by Raindance relating to stockholders' rights of
appraisal and (ii) the opportunity to direct all negotiations and proceedings
with respect to demand for appraisal under the DGCL. Raindance shall not, except
with the prior written consent of West, voluntarily make any payment with
respect to any demands for appraisals of Dissenting Shares, offer to settle or
settle any such demands or approve any withdrawal of any such demands.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 DISCLOSURE LETTERS. Prior to the execution and delivery of this
Agreement, each Party has delivered to the other Party a letter (as it relates
to a Party, its "Disclosure Letter") setting forth, among other things, items
the disclosure of which is necessary or appropriate either in response to an
express disclosure requirement contained in a provision hereof or as an
exception to one or more of such Party's representations or warranties contained
in this Article 3 or to one or more of its covenants contained in Article 4;
provided, that (a) no such item is required to be set forth in a Party's
Disclosure Letter as an exception to any representation or warranty of such
Party if its absence would not result in the related representation or warranty
being deemed untrue or incorrect under the standard established by Section 3.2,
and (b) the mere inclusion of an item in a Party's Disclosure Letter as an
exception to a representation or warranty shall not be deemed an admission by
such Party that such item represents a material exception or fact, event or
circumstance or that such item is reasonably likely to result in a Material
Adverse Effect with respect to such Party. Any disclosures made with respect to
a subsection of Section 3.3 or 3.4, as applicable, shall be deemed to qualify
(a) any subsections of Section 3.3 or 3.4, as applicable, specifically
referenced or cross-referenced and (b) other subsections of Section 3.3 or 3.4,
as applicable, to the extent it is clear (notwithstanding the absence of a
specific cross reference) from a reading of the disclosure that such disclosure
(i) applies to such other subsections and (ii) contains sufficient detail to
enable a reasonable Person to recognize the relevance of such disclosure to such
other subsections.
3.2 STANDARDS. The term "Material Adverse Effect," as used with respect to
a Party, means an effect which (i) in the case of Raindance only, is materially
adverse, or is reasonably likely to be materially adverse, to the business,
financial condition or results of operations of Raindance and its Subsidiaries
taken as a whole or (ii) materially impairs, or is reasonably likely to
materially impair, the ability of such Party to consummate the Merger; provided,
that in determining whether a Material Adverse Effect has occurred or is
reasonably likely to occur there shall be excluded any effect to the extent
attributable to or resulting from (A) any changes in Laws or regulations
generally affecting the businesses of such Party, (B) any change in GAAP
generally affecting the businesses of such Party, (C) events, conditions or
trends in economic, business or financial conditions generally affecting the
businesses of such Party, (D) changes in national or international political or
social conditions, including the engagement by the United States in hostilities,
whether or not pursuant to the declaration of a national emergency or war, or
the occurrence of any military or terrorist attack upon or within the United
States, or any of its territories, possessions or diplomatic or consular offices
or upon any military installation, equipment or personnel of the United States,
(E) the effects of the actions contemplated, permitted or required by this
Agreement or that are taken with the prior informed consent of the other Party
in contemplation of the transactions contemplated hereby or that are not taken
because such actions are prohibited by Section 4.2 and West withheld its Consent
to such actions, (F) the announcement or pendency of this Agreement or any of
the transactions contemplated hereby, (G) the failure to meet internal or
analyst's expectations or projections between the date of this Agreement and the
Closing Date (it being understood, however, that the underlying circumstances
giving rise to such failure may be taken into account unless otherwise excluded
pursuant to this paragraph), and (H) any event, condition, claim, Liability, or
potential loss or contingency disclosed on the Disclosure Schedule; provided
further, that in the case of any event, condition or trend described in clauses
(A) through (D) above, the effect thereof on such Party is not materially
different than the effect thereof on comparable companies.
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3.3 REPRESENTATIONS AND WARRANTIES OF RAINDANCE. Subject to and giving
effect to Sections 3.1 and 3.2 and except as set forth in its Disclosure Letter,
Raindance hereby represents and warrants to each of West and Merger Sub:
(a) Organization, Standing, and Power. It and each of its
Subsidiaries is duly organized, validly existing, and (as to corporations) in
good standing under the Laws of the jurisdiction of its formation. It and each
of its Subsidiaries has the requisite corporate power and authority to own,
lease, and operate its properties and assets and to carry on its business as now
conducted. It and each of its Subsidiaries is duly qualified or licensed to do
business and in good standing in the States of the United States and foreign
jurisdictions where the character of its assets or the nature or conduct of its
business requires it to be so qualified or licensed.
(b) Authority; No Breach of Agreement.
(i) It has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery,
and performance of this Agreement, and the consummation of the
transactions contemplated hereby, have been duly and validly authorized by
all necessary corporate action (including valid authorization and adoption
of this Agreement by its duly constituted Board of Directors), subject
only to the Raindance Stockholder Approval. Subject to the Raindance
Stockholder Approval and assuming due authorization, execution, and
delivery of this Agreement by each of West and Merger Sub, this Agreement
represents a legal, valid, and binding obligation of Raindance enforceable
against it in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that
the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which
any proceeding may be brought).
(ii) As of the date hereof, its Board of Directors has (A) by
the affirmative vote of all directors voting, duly approved and declared
advisable this Agreement and the Merger and the other transactions
contemplated hereby; (B) received the opinion of its financial advisor,
Citigroup Global Markets, to the effect that the Merger Consideration to
be received by the holders of Common Stock pursuant to the Merger is fair
from a financial point of view to the holders of the Common Stock; (C)
determined that this Agreement and the transactions contemplated hereby
are advisable and in the best interests of the holders of Raindance Common
Stock; (D) resolved to recommend adoption of this Agreement, the Merger
and the other transactions contemplated hereby to the holders of shares of
Raindance Common Stock (such recommendations being the "Directors'
Recommendation"); and (E) directed that this Agreement be submitted to the
holders of shares of Raindance Common Stock for their adoption.
(iii) Neither the execution and delivery of this Agreement by
it, nor the consummation by it of the transactions contemplated hereby,
nor compliance by it with any of the provisions hereof, will (A) conflict
with or result in a breach of any provision of its Organizational
Documents, or (B) constitute or result in a Default under, or require any
Consent pursuant to, or result in the creation of any Lien on any material
assets of it or its Subsidiaries under, any Contract or Permit of it or
its Subsidiaries that is filed as an exhibit to its SEC Reports or that is
listed in Section 3.3(l) of its Disclosure Letter or that is otherwise
material to its, and its Subsidiaries' business, taken as a whole, or (C)
subject to receipt of the Required Consents and
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the expiration of any waiting period required by Law, violate any Law or
Order applicable to it or its Subsidiaries or any of their respective
material assets.
(iv) Other than in connection or compliance with the
provisions of the Securities Laws, and other than (A) the expiration or
termination of the required waiting period under the HSR Act, (B) notices
to or filings with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or both with respect to any Benefit Plans, and (C) as
set forth in Section 3.3(b)(iv)(C) of its Disclosure Letter, no notice to,
filing with, or Consent of, any Governmental Authority is necessary in
connection with the execution, delivery or performance of this Agreement
and the consummation by it of the Merger and the other transactions
contemplated by this Agreement.
(c) Capital Stock. Its authorized capital stock consists of (i)
130,000,000 shares of Raindance Common Stock, of which, as of the date of this
Agreement, 55,278,749 shares were issued and outstanding, and no shares were
held by Raindance in its treasury, and (ii) 10,000,000 shares of preferred
stock, par value $.0015 per share, none of which are issued or outstanding.
Except as set forth in this Section 3.3(c), as of the date of this Agreement,
there are no shares of Raindance Common Stock or other equity securities of
Raindance outstanding and no outstanding Rights relating to the Raindance Common
Stock, and no Person has any Contract or any right or privilege (whether
pre-emptive or contractual) capable of becoming a Contract or Right for the
purchase, subscription or issuance of any securities of Raindance. All of the
outstanding shares of Raindance Common Stock are duly and validly issued and
outstanding and are fully paid and nonassessable. None of the outstanding shares
of Raindance Common Stock has been issued in violation of any preemptive or
contractual rights of the current or past shareholders of Raindance. Section
3.3(c) of the Disclosure Letter sets forth the name and jurisdiction of
organization of any and all Persons (other than the Subsidiaries) of which
Raindance directly or indirectly owns an equity interest (including the number
and type of equity interests or securities), or an interest convertible into or
exchangeable or exercisable for an equity interest; all such interests are owned
beneficially and of record by Raindance, free and clear of all Liens. Raindance
has no Subsidiaries.
(d) SEC Filings; Financial Statements.
(i) It has filed and made available to each of West and Merger
Sub all SEC Reports required to be filed by it with the SEC since December
31, 2000 (collectively, its "SEC Reports"). With respect to SEC Reports
filed prior to the date of this Agreement, such SEC Reports (A) at the
time filed, complied in all material respects with the applicable
requirements of the Securities Laws, and (B) did not at the time they were
filed (or if amended or superseded by another SEC Report filed prior to
the date of this Agreement, then on the date of such filing) contain any
untrue statement of a material fact or omit to state a material fact
required to be stated in such SEC Reports or necessary in order to make
the statements in such SEC Reports, in light of the circumstances under
which they were made, not misleading. With respect to SEC Reports filed
after the date of this Agreement, such SEC Reports (A) will at the time
filed comply in all material respects with the applicable requirements of
the Securities Laws, and (B) will not, at the time they were filed (or if
amended or superseded by another SEC Report filed after the date of this
Agreement, then on the date of such filing), contain any untrue statement
of a material fact or omit to state a material fact required to be stated
in such SEC Reports or necessary in order to make the statements in such
SEC Reports, in light of the circumstances under which they were made, not
misleading.
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(ii) Each of its Financial Statements (including the notes and
schedules thereto) contained in its SEC Reports (including any SEC Reports
filed after the date of this Agreement) complied (or will comply) as to
form in all material respects with the applicable requirements of the
Securities Laws with respect thereto, fairly presented (or will fairly
present) the consolidated financial position of it and its subsidiaries as
at the respective dates and the consolidated results of its operations and
its cash flows for the periods indicated, in each case in accordance with
GAAP consistently applied during the periods indicated, except in each
case as may be noted therein, and subject to normal year-end audit
adjustments and as permitted by Form 10-Q in the case of unaudited
Financial Statements.
(iii) Raindance has made available to West a complete and
correct copy of any material amendments or modifications that are required
to be, but have not yet been as of the date of this Agreement, filed with
the SEC to (i) agreements that previously have been filed by Raindance and
(ii) the SEC Reports. Raindance has responded to all comment letters of
the SEC Staff received as of the date hereof relating to the SEC Reports,
and prior to the date hereof the SEC Staff has not advised Raindance that
any final responses are inadequate, insufficient or otherwise
non-responsive. Raindance has made available to West correct and complete
copies of all correspondence between the SEC and Raindance (or any
Raindance Subsidiary) between December 31, 2002 and the date of this
Agreement and will, promptly following the receipt thereof, provide to
West any such correspondence sent or received after the date hereof. To
the Knowledge of Raindance, no SEC Report filed before the date hereof is,
as of the date hereof, the subject of ongoing SEC review or outstanding
SEC comment.
(iv) Raindance has been and is in compliance in all material
respects with (i) the applicable listing and corporate governance rules
and regulations of Nasdaq and (ii) the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and related rules and regulations promulgated
thereunder (the "Xxxxxxxx-Xxxxx Act") since the enactment of the
Xxxxxxxx-Xxxxx Act. Raindance maintains internal accounting controls that
comply with Section 13(b)(2)(B) of the 1934 Act. Raindance maintains
disclosure controls and procedures that comply with Rule 13a-15(e) of the
1934 Act.
(v) Based on its most recent evaluation of its internal
controls processes prior to the date of this Agreement, (A) Raindance has
not identified any significant deficiencies or material weaknesses (each
as defined in the Public Company Accounting Oversight Board's Auditing
Standard No. 2) in the design or operation of its internal control over
financial reporting which are reasonably likely to adversely affect
Raindance's ability to record, process, summarize and report financial
information, and (B) with respect to Raindance, there has been no fraud,
whether or not material, that involves management or other employees who
have a significant role in its internal control over financial reporting.
Raindance has not received prior to the date hereof any complaint,
allegation, assertion or claim regarding its internal accounting controls
or auditing matters that have been reported pursuant to the
"whistleblower" policy adopted by Raindance's Audit Committee. Raindance
has no reason to believe that its auditors and its chief executive officer
and chief financial officer will not be able to give the certifications
and attestations required pursuant to Section 404 of the Xxxxxxxx-Xxxxx
Act.
(vi) There are no outstanding loans made by Raindance or any
of its Subsidiaries in violation of the Xxxxxxxx-Xxxxx Act.
(e) Liabilities. As of date this Agreement, neither Raindance nor
any of its Subsidiaries has any liabilities or obligations of a nature and
magnitude required to be reflected on a
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consolidated balance of Raindance prepared in accordance with GAAP (or the notes
to such balance sheet), other than liabilities and obligations (a) set forth in
Raindance's consolidated balance sheet as of September 30, 2005 included in the
SEC Reports (or in the notes thereto), (b) incurred in the ordinary course of
business since September 30, 2005, or (c) incurred in connection with the
Merger.
(f) Absence of Certain Changes or Events. Between December 31, 2004
and the date hereof, except as disclosed in its SEC Reports filed after that
date and prior to the date of this Agreement, (i) it and each of its
Subsidiaries has conducted its business in all material respects in the ordinary
course of business consistent with past practice, (ii) neither it nor any of its
Subsidiaries has taken action which, if taken after September 30, 2005 and prior
to the date hereof without the Consent of West, would constitute a breach of
Section 4.1 or 4.2 of this Agreement, (iii) there have been no events, changes,
or occurrences which have had, or are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on it, and (iv) there has been no
material damage, destruction or loss (whether or not covered by insurance) to
any material assets of Raindance or any of its Subsidiaries other than in the
ordinary course of business.
(g) Tax Matters.
(i) All Taxes of it and each of its Subsidiaries that are or
were due or payable (whether or not shown on any Tax Return) have been
fully and timely paid. It and each of its Subsidiaries has timely filed
all Tax Returns in all jurisdictions in which Tax Returns are required to
have been filed by it or on its behalf, and each such Tax Return is
complete and accurate in all material respects. Neither it nor any of its
Subsidiaries is the beneficiary of any extension of time within which to
file any Tax Return. There have been no examinations or audits of any Tax
Return by any Taxing Authority. It and each of its Subsidiaries has made
available to West true and correct copies of the United States federal and
state income Tax Returns filed by it for each of the three most recent
fiscal years ended on or before December 31, 2004. No claim has ever been
made by a Taxing Authority in a jurisdiction where it or any of its
Subsidiaries does not file a Tax Return that it or any of its Subsidiaries
may be subject to Taxes by that jurisdiction.
(ii) Neither it nor any of its Subsidiaries has received any
notice of assessment or proposed assessment in connection with any Tax,
and there is no threatened or pending dispute, action, suit, proceeding,
claim, investigation, audit, examination, or other Litigation regarding
any Tax of it, any of its Subsidiaries or the assets of it or any of its
Subsidiaries. There are no agreements, waivers or other arrangements
providing for an extension of time with respect to the assessment of any
Tax or deficiency against it or any of its Subsidiaries, and neither it
nor any of its Subsidiaries has waived or extended the applicable statute
of limitations for the assessment or collection of any Tax or agreed to a
Tax assessment or deficiency.
(iii) Neither it nor any of its Subsidiaries is a party to a
Tax allocation, sharing, indemnification or similar agreement or any
agreement pursuant to which it has any obligation to any Person with
respect to Taxes, and neither it nor any of its Subsidiaries has been a
member of an affiliated group filing a consolidated federal or state
income Tax Return or any combined, affiliated or unitary group for any Tax
purpose (other than the group of which it is currently a member), and
neither it nor any of its Subsidiaries has any Tax liability under
Treasury Regulation Section 1.1502-6 or any similar provision of state,
local or foreign law, or as a transferee or successor, by contract or
otherwise.
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(iv) The proper and accurate amounts of Tax have been withheld
by it and each of its Subsidiaries and timely paid to the appropriate
Taxing Authority for all periods through the Effective Time in compliance
with all Tax withholding provisions of all applicable federal, state,
local and foreign Laws, rules and regulations, including Taxes required to
have been withheld and paid in connection with amounts paid or owing to
any employee or independent contractor, and Taxes required to be withheld
and paid pursuant to Sections 1441 and 1442 of the Internal Revenue Code
or similar provisions under state or foreign Law.
(v) Neither it nor any of its Subsidiaries has been a party to
any distribution occurring during the five-year period ending on the date
hereof in which the parties to such distribution treated the distribution
as one to which Section 355 of the Internal Revenue Code applied. No Liens
for Taxes exist with respect to any assets of it or any of its
Subsidiaries, except for statutory Liens for Taxes not yet due and
payable.
(vi) Neither it nor any of its Subsidiaries is a controlled
foreign corporation within the meaning of the Internal Revenue Code. It
and each of its Subsidiaries has complied with all of the income inclusion
and Tax reporting provisions of the U.S. anti-deferral Tax regimes,
including the controlled foreign corporation, passive foreign investment
company and foreign personal holding company regimes.
(vii) Neither it nor any of its Subsidiaries has made any
payments, is obligated to make any payments, or is a party to any contract
that could obligate it to make any payments that could be disallowed as a
deduction under Section 280G or 162(m) of the Internal Revenue Code or any
comparable provision of state Tax Law.
(viii) Neither it nor any of its Subsidiaries is or has ever
been a United States real property holding corporation within the meaning
of Internal Revenue Code Section 897(c)(1)(A)(ii) or any comparable
provision of state Tax Law. Neither it nor any of its Subsidiaries has
been or will be required to include any adjustment in taxable income for
any Tax period (or portion thereof) pursuant to Section 481 of the
Internal Revenue Code or any comparable provision under state or foreign
Tax Laws as a result of transactions or events occurring prior to the
Effective Time.
(ix) The amount of the accumulated net operating loss
carryovers, unused general business credits, unused investment credits,
unused foreign credits and other Tax credits and other Tax losses of it
and each of its Subsidiaries, calculated as of December 31, 2004, for
state and federal income tax purposes, is stated in Section 3.3(g)(ix) of
its Disclosure Letter and none of such net operating losses are capital
losses or, except as disclosed in Section 3.3(g)(ix) of its Disclosure
Letter, subject to any limitation on their use under the provisions of
Sections 382 or 269 of the Internal Revenue Code or analogous provisions
of state Law, or any other provisions of the Internal Revenue Code or the
Treasury Regulations or analogous provisions of state Law, other than any
such limitations as may arise as a result of the consummation of the
transactions contemplated by this Agreement.
(x) It and each of its Subsidiaries has disclosed on its
federal income Tax Returns any position taken for which substantial
authority (within the meaning of Internal Revenue Code Section
6662(d)(2)(B)(i) or comparable provision of state Tax Law) did not exist
at the time the return was filed. Neither it nor any of its Subsidiaries
has participated in any reportable transaction, as defined in Treasury
Regulation Section 1.6011-4(b)(1) or any comparable provision of state Tax
Law, or a transaction substantially similar to a reportable
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transaction. Neither it nor any of its Subsidiaries is a party to any
joint venture, partnership, or other arrangement or contract which could
be treated as a partnership for federal income Tax purposes.
(h) Environmental Matters. To its Knowledge: (i) no methylene
chloride or asbestos is contained in or has been used at or released from its
Facilities; (ii) all Hazardous Materials used by it or stored on its Properties
have been disposed of in accordance with all Environmental Laws; (iii) neither
it nor any of its Subsidiaries is liable as a responsible party under the
federal Comprehensive Environmental Response, Compensation and Liability Act, as
amended ("CERCLA"), or state analog statute, arising out of events occurring
prior to the Effective Time; (iv) there have not been in the past, and are not
now, any Hazardous Materials on, under or migrating to or from the Facilities or
any Property; (v) there have not been in the past, and are not now, any
underground tanks or underground improvements at, on or under any Property
including treatment or storage tanks, sumps, or water, gas or oil xxxxx; (vi)
there are no polychlorinated biphenyls ("PCBs") deposited, stored, disposed of
or located on any Property or Facilities or any equipment on any Property
containing PCBs at levels in excess of 50 parts per million; (vii) there is no
formaldehyde on any Property or in the Facilities, nor any insulating material
containing urea formaldehyde in the Facilities; and (viii) the Facilities and
its and its Subsidiaries' uses and activities therein have at all times since it
or any of its Subsidiaries commenced use of the Facilities complied with all
Environmental Laws. Neither it nor any of its Subsidiaries has received any
notice (written or, to its Knowledge, verbal) of any noncompliance of the
Facilities or any Property or their past or present operations with
Environmental Laws. No notices, administrative actions or suits are pending or,
to its Knowledge, threatened relating to any actual or potential violation by it
or any of its Subsidiaries of any Environmental Laws.
(i) Compliance with Permits, Laws and Orders.
(i) It and each of its Subsidiaries has in effect all Permits
and has made all filings, applications, and registrations with
Governmental Authorities that are required for it to own, lease, or
operate its assets and to carry on its business as now conducted and
Raindance and its Subsidiaries are not in Default under any Permit
applicable to their respective businesses or employees conducting their
respective businesses.
(ii) Neither it nor any of its Subsidiaries is in Default
under any Laws or Orders applicable to its business or employees
conducting its business.
(iii) Neither it nor any of its Subsidiaries has received any
notification or communication from any Governmental Authority since
January 1, 2005 (or prior to such date, where the matters described in
such notification or communication remain unresolved), (A) asserting that
it or any of its Subsidiaries is in Default under any of the Permits, Laws
or Orders which such Governmental Authority enforces, (B) threatening to
revoke any Permits, or (C) requiring it or any of its Subsidiaries (x) to
enter into or consent to the issuance of a cease and desist order, formal
agreement, directive, commitment, or memorandum of understanding, or (y)
to adopt any resolution of its Board of Directors or similar undertaking,
which restricts materially the conduct of its business, or in any material
manner relates to its management in their capacity as management of
Raindance.
(iv) There (A) is no unresolved violation or exception by any
Governmental Authority with respect to any report or statement in its
possession relating to any examinations or inspections of it or any of its
Subsidiaries, (B) have been no formal or informal inquiries by, or
disagreements or disputes with, any Governmental Authority with respect to
its or any of its
-12-
Subsidiaries' business, operations, policies or procedures since January
1, 2005 (or after January 1, 2001 and prior to January 1, 2005, where such
inquiry, disagreement or dispute remains unresolved), and (C) is not any
pending or, to its Knowledge, threatened adverse investigation or review
by any Governmental Authority of it or any of its Subsidiaries.
(v) Neither it nor any of its directors, officers, employees
or Representatives acting on its behalf has offered, paid, or agreed to
pay any Person, including any Government Authority, directly or
indirectly, any thing of value for the purpose of, or with the intent of
obtaining or retaining any business in violation of applicable Laws,
including (1) using any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity, (2) making any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds,
(3) violating any provision of the Foreign Corrupt Practices Act of 1977,
as amended, or (4) making any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(j) Labor Relations. Neither it nor any of its Subsidiaries is the
subject of any Litigation asserting that it or any of its Subsidiaries has
committed an unfair labor practice (within the meaning of the National Labor
Relations Act or comparable state Law) or seeking to compel it or any of its
Subsidiaries to bargain with any labor organization as to wages or conditions of
employment, nor is it or any of its Subsidiaries a party to or bound by any
collective bargaining agreement, Contract, or other agreement or understanding
with a labor union or labor organization, nor is there any strike or other labor
dispute involving it pending or, to its Knowledge, threatened, nor, to its
Knowledge, is there any activity involving its or any of its Subsidiaries'
employees seeking to certify a collective bargaining unit or engaging in any
other organization activity. Except as would not reasonably be expected to have
a Material Adverse Effect on Raindance, to the Knowledge of Raindance, Raindance
and its Subsidiaries have no direct or indirect liability with respect to any
misclassification of any person as an independent contractor rather than as an
employee, or with respect to any employee leased from another employer.
(k) Employee Benefit Plans.
(i) It has disclosed in Section 3.3(k)(i) of its Disclosure
Letter, and has delivered or made available to West prior to the date of
this Agreement correct and complete copies of, all of its Benefit Plans
that are in effect as of the date of this Agreement. Neither it nor any of
its Subsidiaries has any "obligation to contribute" (as defined in ERISA
Section 4212) to a "multiemployer plan" (as defined in ERISA Sections
4001(a)(3) and 3(37)(A)). Each "employee pension benefit plan," as defined
in Section 3(2) of ERISA, that was ever maintained by it or any of its
Subsidiaries and that was intended to qualify under Section 401(a) of the
Internal Revenue Code, is disclosed as such in Section 3.3(k)(i) of its
Disclosure Letter.
(ii) It has delivered or made available to West prior to the
date of this Agreement correct and complete copies of the following
documents: (A) all trust agreements or other funding arrangements for its
Benefit Plans that are currently in effect (including insurance
Contracts), and all amendments thereto, (B) with respect to any such
Benefit Plans or amendments, the most recent determination letters, and
all material rulings, material opinion letters, material information
letters, or material advisory opinions issued by the Internal Revenue
Service, the United States Department of Labor, or the Pension Benefit
Guaranty Corporation after December 31, 1994, (C) annual reports or
returns, audited or unaudited financial statements, actuarial valuations
and reports, and summary annual reports prepared for any Benefit Plans
with respect to the most recent plan year, and (D) the most recent summary
plan descriptions and any material modifications thereto.
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(iii) All of its Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other
applicable Laws. Each of its ERISA Plans which is intended to be qualified
under Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service and, to its
Knowledge, there are no circumstances likely to result in revocation of
any such favorable determination letter. Each trust created under any of
its ERISA Plans has been determined to be exempt from Tax under Section
501(a) of the Internal Revenue Code and it is not aware of any
circumstance which will or could reasonably result in revocation of such
exemption. With respect to each of its Benefit Plans, to its Knowledge, no
event has occurred which will or could reasonably give rise to a loss of
any intended Tax consequences under the Internal Revenue Code or to any
Tax under Section 511 of the Internal Revenue Code that is reasonably
likely, individually or in the aggregate, to have a Material Adverse
Effect on it. There is no pending or, to its Knowledge, threatened
Litigation relating to any of its ERISA Plans.
(iv) Neither it nor any of its Subsidiaries has engaged in a
transaction with respect to any of its Benefit Plans that, assuming the
Taxable Period of such transaction expired as of the date of this
Agreement or the Effective Time, would subject it or any of its
Subsidiaries to a Tax or penalty imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA. Neither it nor, to its
Knowledge, any administrator or fiduciary of any of its Benefit Plans (or
any agent of any of the foregoing), has engaged in any transaction, or
acted or failed to act in any manner with respect to any of its Benefit
Plans which could subject it to any direct or indirect Liability (by
indemnity or otherwise) for breach of any fiduciary, co-fiduciary, or
other duty under ERISA. No oral or written representation or communication
with respect to any aspect of its Benefit Plans has been made to employees
of it or any of its Subsidiaries which is not in conformity with the
written or otherwise preexisting terms and provisions of such plans.
(v) Each of its Pension Plans had, as of the date of its most
recent actuarial valuation, assets measured at fair market value at least
equal to its "current liability," as that term is defined in Section
302(d)(7) of ERISA. Since the date of the most recent actuarial valuation,
no event has occurred which would be reasonably expected to adversely
change any such funded status in a way that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on it. None of
its Pension Plans nor any "single-employer plan," within the meaning of
Section 4001(a)(15) of ERISA, currently maintained by it or any of its
Subsidiaries, or the single-employer plan of any ERISA Affiliate has an
"accumulated funding deficiency" within the meaning of Section 412 of the
Internal Revenue Code or Section 302 of ERISA. All required contributions
with respect to any of its Pension Plans or any single-employer plan of
any of its ERISA Affiliates have been timely made and there is no lien,
nor is there expected to be a lien, under Internal Revenue Code Section
412(n) or ERISA Section 302(f) or Tax under Internal Revenue Code Section
4971. Neither it nor any of its Subsidiaries has provided, or is required
to provide, security to any of its Pension Plans or to any single-employer
plan of any of its ERISA Affiliates pursuant to Section 401(a)(29) of the
Internal Revenue Code. All premiums required to be paid under ERISA
Section 4006 have been timely paid by it and its Subsidiaries.
(vi) No Liability under Title IV of ERISA has been or is
expected to be incurred by it or any of its Subsidiaries with respect to
any defined benefit plan currently or formerly maintained by any of them
or by any of its ERISA Affiliates that has not been satisfied in full
(other than Liability for Pension Benefit Guaranty Corporation premiums,
which have been paid when due).
-14-
(vii) Neither it nor any of its Subsidiaries has any
obligations for retiree health and retiree life benefits under any of its
Benefit Plans other than with respect to benefit coverage mandated by
applicable Law.
(viii) Except as set forth in Section 1.6 or in Section 4.2(h)
of its Disclosure Letter, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby
will, (A) result in any payment (including severance, golden parachute, or
otherwise) becoming due to any of its or its Subsidiaries' directors or
employees from it or any of its Subsidiaries under any of its Benefit
Plans or otherwise, other than by operation of Law, (B) increase any
benefits otherwise payable under any of its Benefit Plans, or (C) result
in any acceleration of the time of payment or vesting of any such benefit.
(l) Material Contracts.
(i) As of the date of this Agreement, neither it nor any of
its Subsidiaries, nor any of their respective assets, businesses, or
operations is a party to, or is bound or affected by, or receives benefits
under, (i) any employment, severance, change-in-control, termination,
consulting, or retirement Contract providing for future aggregate payments
to any Person in any calendar year in excess of $150,000, (ii) any
Contract relating to the borrowing of money by it or any of its
Subsidiaries or the guarantee by it or any of its Subsidiaries of any such
obligation (other than Contracts pertaining to trade payables incurred in
the ordinary course of business), (iii) other than pursuant to Raindance
Options, Raindance Warrants, the ESPP and this Agreement, any Contract for
the sale of any of its capital stock or equity interests; (iv) other than
pursuant to Raindance Options, Raindance Warrants, the ESPP and this
Agreement, any Contract that contains a put, call, right of first refusal
or similar right pursuant to which Raindance or any of its Subsidiaries
would be required to purchase or sell, as applicable, any ownership
interests of any Person (v) any Contract containing covenants that limit
the ability of it or any of its Affiliates to compete in any line of
business or with any Person, or that involve any restriction of the
geographic area in which, or method by which, it or any of its
Subsidiaries or Affiliates may carry on its business (other than as may be
required by Law or any Governmental Authority), (vi) any Contract or
series of related Contracts for the purchase of materials, supplies,
goods, services, equipment or other assets (other than any Contract (A)
that is terminable without any payment or penalty on not more than 90 days
notice by it or any of its Subsidiaries or (B) that is otherwise
terminable by it or any of its Subsidiaries without payment or penalty on
or prior to Xxxxx 00, 0000 (xxx thereafter, if not so terminated, is
terminable as specified in clause (A) (either of the foregoing, a
"Terminable Contract")) that provides for or is reasonably likely to
require either (x) annual payments by it or any of its Subsidiaries of
$250,000 or more or (y) aggregate payments by it or any of its
Subsidiaries of $1,000,000 or more (or with respect to Contracts with
wholesale telecommunications service providers, aggregate payments by
Raindance or any of its Subsidiaries of $500,000 or more) or (vii) any
other Contract or amendment thereto that would be required to be filed as
an exhibit to any SEC Report (as described in Items 601(b)(4) and
601(b)(10)) that has not been filed as an exhibit to its SEC Reports filed
prior to the date of this Agreement. With respect to each of its Contracts
that (i) are filed as an exhibit to any SEC Report, (ii) would be required
under Items 601(b)(4) and 601(b)(10) of Regulation S-K to be filed as an
exhibit to any of its SEC Reports, or (iii) is disclosed in its Disclosure
Letter: (u) the Contract is in full force and effect as of the date
hereof; (v) neither it nor any of its Subsidiaries is in Default
thereunder; (w) it has not repudiated or waived any material provision of
any such Contract; (x) no other party to any such Contract is, to its
Knowledge, in Default in any material respect; and (y) to the Knowledge of
Raindance, no event has occurred that, with or without notice or lapse of
time or both, would result in a Default
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in any material respect under any such Contract. All indebtedness for
money borrowed of it and its Subsidiaries is prepayable without penalty or
premium.
(ii) Section 3.3(l)(ii) of its Disclosure Schedule sets forth
its ten largest customers by consolidated revenues for the 12-month period
ended September 30, 2005 (each a "Large Customer"). Since October 1, 2004,
no Large Customer has cancelled any Contract with it or any of its
Subsidiaries (or, to its Knowledge, threatened to do so), and neither it
nor any of its Subsidiaries has received any written communication or
notice from any Large Customer of any intention to terminate or materially
reduce the amount of services such Large Customer obtains from it or its
Subsidiaries.
(m) Legal Proceedings. As of the date hereof, there is no Litigation
pending or, to its Knowledge, threatened against it or any of its Subsidiaries
or its or any of its Subsidiaries' assets, interests, or rights, nor are there
any Orders of any Governmental Authority or arbitrators outstanding against it
or any of its Subsidiaries. Except as has not had or would not reasonably be
expected to have a Material Adverse Effect on Raindance, (i) to the Knowledge of
Raindance, no officer or director of Raindance or any of its Subsidiaries is a
defendant in any suit, claim, action, proceeding, arbitration or investigation
in connection with his or her status as an officer or director of Raindance or
any of its Subsidiaries and (ii) there are no SEC or other governmental
inquiries or, to the Knowledge of Raindance, investigations or internal
investigations regarding any accounting practices of Raindance or any of its
Subsidiaries or any malfeasance by any executive officer of Raindance.
(n) Properties. Neither Raindance nor any Subsidiary owns any real
property. Section 3.3(n) of the Disclosure Letter contains a true and complete
list of all real property leased, subleased, licensed or otherwise occupied
(whether as tenant, subtenant or pursuant to other occupancy arrangements) by
Raindance or any of its Subsidiaries in connection with which Raindance or such
Subsidiary pays for the occupancy of such real property in excess of $50,000
annually (collectively, including the improvements thereon, the "Leased Real
Property"), including the street address thereof. True and complete copies of
all agreements related to such Leased Real Property that have not been
terminated or expired as of the date hereof have been made available to Parent.
Except as would not reasonably be expected to have a Material Adverse Effect on
Raindance, Raindance or one of its Subsidiaries has valid leasehold estates in
all Leased Real Property, free and clear of all Liens.
(o) Insurance Policies. Except as would not reasonably be expected
to have a Material Adverse Effect on Raindance, (i) all insurance policies
maintained by Raindance and its Subsidiaries are in full force and effect and
provide insurance in such amounts and against such risks as the management of
Raindance reasonably has determined to be prudent in accordance with industry
practices or as is required by law or regulation, and all premiums due and
payable thereon have been paid; and (ii) neither Raindance nor any Subsidiary is
in material Default of any of the insurance policies, and neither Raindance nor
any Subsidiary has taken any action or failed to take any action which, with
notice or the lapse of time, would constitute such a Default or permit
termination or material modification of any of the insurance policies. Raindance
has not received any material notice of termination or cancellation or denial of
coverage with respect to any of the insurance policies.
(p) Affiliate Transactions. There are no material transactions,
agreements, arrangements or understandings in effect as of the date of this
Agreement between (i) Raindance or any of its Subsidiaries, on the one hand, and
(ii) any Affiliate of Raindance (other than any of its Subsidiaries), on the
other hand, of the type that would be required to be disclosed under Item 404 of
Regulation S-K under the Securities Act which have not been so disclosed.
-16-
(q) Investment Company Act. Raindance is not currently, nor has it
ever been, an "investment company" as defined in the Investment Company Act of
1940, as amended.
(r) Government Contracts.
(i) With respect to each Government Contract, except as would
not reasonably be expected to have a Material Adverse Effect on Raindance,
(A) all representations and certifications executed, acknowledged or set
forth in or pertaining to such Governmental Contract were complete and
correct in all material respects as of their effective date, and Raindance
and each of its Subsidiaries have complied in all material respects with
all such representations and certifications; (B) since January 1, 2005,
neither the United States Government nor any prime contractor,
subcontractor or other Person has notified Raindance or any of its
Subsidiaries in writing that Raindance or any such Subsidiary has breached
or violated any material certification, representation, clause, provision
or requirement, pertaining to such Government Contract; and (C) no
termination for convenience, termination for Default, cure notice or show
cause notice is in effect as of the date hereof pertaining to any
Government Contract.
(ii) Except as would not reasonably be expected to have a
Material Adverse Effect on Raindance, (A) to the Knowledge of Raindance,
neither Raindance nor any of its Subsidiaries nor any of their respective
personnel have been under administrative, civil or criminal investigation,
or indictment or audit by any Governmental Authority with respect to any
alleged irregularity, misstatement or omission arising under or relating
to any Government Contract; (B) neither Raindance nor any of its
Subsidiaries has conducted or initiated any internal investigation or made
a voluntary disclosure to the United States Government with respect to any
alleged irregularity, misstatement or omission arising under or relating
to a Government Contract; and (C) neither Raindance nor any of its
Subsidiaries nor, to the Knowledge of Raindance, any of their respective
personnel have been suspended or debarred from doing business with the
United States Government or is, or at any time has been, the subject of a
finding of nonresponsibility or ineligibility for United States Government
contracting.
(s) Intellectual Property.
(i) It and each of its Subsidiaries owns, or is licensed or
otherwise possesses legally enforceable and unencumbered rights to use,
all Intellectual Property (including the Technology Systems) that is used
by it or its Subsidiaries in its or its Subsidiaries' business as
currently conducted. Neither it nor any of its Subsidiaries has (A)
licensed to any Person any Intellectual Property owned by it or any of its
Subsidiaries except for licenses granted pursuant to source code escrow
provisions under Contracts identified in Section 3.3(s)(i) of its
Disclosure Letter and except for non-exclusive licenses granted to
customers of Raindance in the ordinary course of its business, or (B)
entered into any exclusive agreements relating to Intellectual Property
owned by it or its Subsidiaries.
(ii) Section 3.3(s)(ii) of the its Disclosure Letter lists all
patents and patent applications, all registered trademarks and
applications therefor, trade names and service marks and applications
therefor, registered copyrights and applications therefor, domain names,
web sites, and mask works owned by or licensed to it or its Subsidiaries
as of the date of this Agreement, including the jurisdictions in which
each such Intellectual Property right has been issued or registered or in
which any application for such issuance and registration has been filed,
but excluding any (A) non-exclusive licenses generally available to the
public for an acquisition
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cost of less than $15,000 per year, (B) "shrink wrap" or "click wrap"
licenses, or licenses for commercial off-the-shelf software, and (C)
licenses of Intellectual Property used for internal purposes only and not
integrated into or distributed with Raindance's products or services
offered to its customers. No royalties or other continuing payment
obligations are due in respect of any third-party patents, trademarks or
copyrights, including software.
(iii) All patents, registered trademarks, tradenames, service
marks and copyrights held by it and its Subsidiaries are, to its
Knowledge, valid and subsisting. Since January 1, 2002, neither it nor any
of its Subsidiaries (A) has been sued in any Litigation which involves a
claim of infringement of any patents, trademarks, tradenames, service
marks, copyrights or violation of any trade secret or other proprietary
right of any third party or (B) has brought any Litigation for
infringement of its Intellectual Property or breach of any license or
other Contract involving its Intellectual Property against any third
party.
(t) State Takeover Laws. It has taken all action required to be
taken by it in order to exempt this Agreement and the transactions contemplated
hereby from, and this Agreement and the transactions contemplated hereby are
exempt from, the requirements of any "moratorium," "control share," "fair
price," "affiliate transaction," "anti-greenmail," "business combination" or
other anti-takeover Laws of any jurisdiction, including Section 203 of the DGCL
(collectively, "Takeover Laws"). It has taken all action required to be taken by
it in order to make this Agreement and the transactions contemplated hereby
comply with, and this Agreement and the transactions contemplated hereby do
comply with, the requirements of any provisions of its Organizational Documents
concerning "business combination," "fair price," "voting requirement,"
"constituency requirement" or other related provisions.
(u) Brokers and Finders. Except for Citigroup Global Markets,
neither it nor any of its Subsidiaries, nor any of their respective directors,
officers, employees or Representatives, has employed any broker or finder or
incurred any Liability for any financial advisory fees, investment bankers'
fees, brokerage fees, commissions, or finders' fees in connection with this
Agreement or the transactions contemplated hereby.
3.4 REPRESENTATIONS AND WARRANTIES OF WEST. Subject to and giving effect
to Sections 3.1 and 3.2 and except as set forth in its Disclosure Letter, West
(and Merger Sub, as indicated) hereby represents and warrants to Raindance that:
(a) Organization, Standing, and Power. Each of it and Merger Sub is
duly organized, validly existing, and in good standing under the Laws of the
jurisdiction in which it is incorporated.
(b) Authority; No Breach of Agreement.
(i) Each of it and Merger Sub has the corporate power and
authority necessary to execute, deliver, and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery, and performance of this Agreement, and the
consummation of the transactions contemplated hereby, including the
Merger, by each of it and Merger Sub, have been duly and validly
authorized by all necessary corporate action (including valid
authorization and adoption of this Agreement by each of its and Merger
Sub's duly constituted Board of Directors). Assuming due authorization,
execution, and delivery of this Agreement by Raindance, this Agreement
represents a legal, valid, and binding obligation of each of West and
Merger Sub, enforceable against each of West and Merger Sub, in
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accordance with its terms (except in all cases as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
receivership, conservatorship, moratorium, or similar Laws affecting the
enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any
proceeding may be brought).
(ii) Neither the execution and delivery of this Agreement by
it or Merger Sub, nor the consummation by either of them of the
transactions contemplated hereby, nor compliance by them with any of the
provisions hereof, will (A) conflict with or result in a breach of any
provision of their respective Organizational Documents, or (B) constitute
or result in a Default under, or require any Consent pursuant to, or
result in the creation of any Lien on any material asset of it or its
Subsidiaries under, any Contract or Permit of it or its Subsidiaries, or
(C) subject to receipt of the Required Consents and the expiration of any
waiting period required by Law, violate any Law or Order applicable to it
or its Subsidiaries or any of their respective material assets, except in
the cases of clauses (B) and (C) above that would not reasonably be
expected to have a Material Adverse Effect on West.
(iii) Other than in connection or compliance with the
provisions of the Securities Laws, and other than (A) the expiration or
termination of the required waiting period under the HSR Act, (B) notices
to or filings with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or both with respect to any Benefit Plans, (C) as set
forth in Section 3.4(b)(iii) of its Disclosure Letter, and (D) would not
reasonably be expected to have a Material Adverse Effect on West, no
notice to, filing with, or Consent of, any Governmental Authority is
necessary in connection with the execution, delivery or performance of
this Agreement and the consummation by it or Merger Sub of the Merger and
the other transactions contemplated by this Agreement.
(c) Legal Proceedings. Except as set forth in West's SEC filings,
there is no Litigation pending or, to its Knowledge, threatened against it or
Merger Sub, or against any asset, interest, or right of any of them, nor are
there any Orders of any Governmental Authority or arbitrators outstanding
against it or Merger Sub that is reasonably likely to have a Material Adverse
Effect on West.
(d) Available Funds. As of the Effective Time, it will have
available all funds necessary for the payment of the Merger Consideration and to
satisfy all of its and the Surviving Corporation's obligations under Articles 1
and 2 of this Agreement, and it currently has borrowing availability under its
credit facilities sufficient for the payment of the Merger Consideration and to
satisfy all of its and the Surviving Corporation's obligations under Articles 1
and 2 of this Agreement.
(e) Merger Sub. All of the issued and outstanding capital stock of
Merger Sub is, and at the Effective Time will be, owned by West or a direct or
indirect wholly owned subsidiary of West. Merger Sub has not conducted any
business prior to the date hereof and has no, and prior to the Effective Time
will have no, assets, liabilities or obligations of any nature other than those
incident to its formation and pursuant to this Agreement and the Merger and the
other transactions contemplated by this Agreement.
(f) Ownership of Raindance Shares. Neither West nor any of its
Affiliates is an "interested stockholder" (as such term is defined in Section
203 of the DGCL) of Raindance.
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ARTICLE 4
COVENANTS AND ADDITIONAL AGREEMENTS OF THE PARTIES
4.1 CONDUCT OF BUSINESS PRIOR TO EFFECTIVE TIME. During the period from
the date of this Agreement until the earlier of the termination of this
Agreement or the Effective Time, except as expressly contemplated or permitted
by this Agreement or to the extent reasonably necessary to carry out the
transactions contemplated by this Agreement or to ensure that Raindance complies
with applicable Laws and pre-existing contractual obligations or to the extent
West shall otherwise Consent in writing (which Consent shall not be unreasonably
withheld or delayed), Raindance shall (a) conduct its business in the ordinary
course, and (b) use commercially reasonable efforts to maintain and preserve
intact its business organization, employees and advantageous business
relationships.
4.2 FORBEARANCES. During the period from the date of this Agreement until
the earlier of the termination of this Agreement or the Effective Time, except
as expressly contemplated or permitted by this Agreement or as otherwise
indicated in this Section 4.2, Raindance shall not, without the prior written
Consent of West (which Consent shall not be unreasonably withheld or delayed):
(a) amend its Organizational Documents or any indemnity
agreements with its directors or officers;
(b) (i) adjust, split, combine, subdivide or reclassify any
capital stock, (ii) make, declare, set aside or pay any dividend, or make
any other distribution on, or directly or indirectly redeem, purchase or
otherwise acquire, any shares of its capital stock or any securities or
obligations convertible (whether currently convertible or convertible only
after the passage of time or the occurrence of certain events) into or
exchangeable for any shares of its capital stock, (iii) grant any Rights,
(iv) except for Permitted Issuances, issue, sell, pledge, dispose of,
grant, transfer, lease, license, guarantee, encumber, or authorize the
issuance, sale, pledge, disposition, grant, transfer, lease, license,
guarantee or encumbrance of, any shares of its capital stock, or (v) make
any change in any instrument or Contract governing the terms of any of its
securities;
(c) other than short-term investments in the ordinary course
of business in connection with its treasury or cash management function or
pursuant to Contracts in force at the date of or permitted by this
Agreement, make any investment (either by purchase of stock or securities,
contributions to capital, property transfers, or purchase of any property
or assets) in any other Person;
(d) enter into any new line of business, or materially change
its operating policies that are material to it, except as required by
applicable Law;
(e) sell, transfer, mortgage, encumber or otherwise dispose of
any material part of its business or any of its material properties or
assets to any Person, or otherwise create or incur any material Lien on
its assets, or cancel, release or assign any indebtedness of any Person or
any claims against any Person or transfer, agree to transfer or grant of,
or agree to grant a license to, any of its material Intellectual Property,
except (i) the sale, transfer or other disposition of obsolete, worn-out
or unneeded equipment in the ordinary course of business consistent with
past practice or the grant of non-exclusive out-licenses in connection
with ordinary revenue transactions, (ii) as security for any indebtedness
permitted by Section 4.2(f), or (ii) pursuant to Contracts in force as of
the date of this Agreement and disclosed in Section 4.2(e) of its
Disclosure Letter;
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(f) incur any material amount of indebtedness for borrowed
money other than short-term indebtedness incurred to refinance short-term
indebtedness (it being understood that for purposes of this Section
4.2(f), "short-term" shall mean maturities of six months or less) and
other than borrowings pursuant to existing credit facilities or pursuant
to any modifications, renewals or replacements of such credit facilities
so long as the maximum aggregate permitted borrowings for such
modifications, renewals or replacements are not increased and do not
increase or create any prepayment penalties or premiums, and other than
with respect to normal course expense reimbursement commitments to
officers, directors and employees; assume, guarantee, endorse or otherwise
as an accommodation become responsible for the obligations of any Person;
make any loan, capital contribution or advance to any Person (other than
travel, business expense and similar advances to employees in the ordinary
course of business consistent with past practice); or grant credit to any
customer, distributor or supplier of it or any of its Subsidiaries on
terms or in amounts materially more favorable than had been extended to
any such Person in the past;
(g) amend (except in a manner favorable to Raindance),
terminate or waive any material provision of any Contract that is filed as
an exhibit to its SEC Reports or that is listed in Section 3.3(l) of its
Disclosure Letter or that is otherwise material to its business, other
than (x) in connection with normal renewals of Contracts without
materially adverse changes of terms, (y) in connection with the scheduled
expiration of a Contract's term or (z) with respect to Contracts with
customers, any amendments or waivers of payment provisions in the ordinary
course of business consistent with past practice in an amount not to
exceed $5,000 in any one case or $25,000 in the aggregate during any 30
day period;
(h) other than as required by Benefit Plans and Contracts as
in effect at the date of this Agreement or as disclosed in Section 4.2(h)
of its Disclosure Letter, (i) increase in any manner the compensation or
fringe benefits of any of its officers, employees or directors, (ii) pay
any pension or retirement allowance not required by any existing Benefit
Plan or Contract to any such officers, employees or directors, (iii)
become a party to, amend or commit itself to any Benefit Plan or Contract
(or any individual Contracts evidencing grants or awards thereunder) or
employment agreement with or for the benefit of any officer, employee or
director, other than: (A) standard offer letters in connection with hiring
at-will employees not otherwise prohibited by Section 4.2(i); and (B)
Contracts in the ordinary course of business consistent with past practice
under existing Benefit Plans to the extent not otherwise prohibited by
this Section 4.2, or (iv) accelerate the vesting of, or the lapsing of
restrictions with respect to, Rights pursuant to any Raindance Stock Plan;
(i) hire any employee (i) other than on an at-will basis or
(ii) with annual compensation (including base salary and bonus
opportunity) of $200,000 or more;
(j) settle or compromise any material Litigation, other than
(x) in connection with enforcing its rights under this Agreement, or (y)
for the routine collection of bills in the ordinary course of business
consistent with past practice;
(k) revalue any of its or any of its Subsidiaries' assets or
change any method of accounting or accounting practice used by it or any
of its Subsidiaries (including changes with respect to extending trade
receivables or making any changes to its or its Subsidiaries' receivables
write-off policies or changing its or its Subsidiaries' payables cycle
policies), other than changes required by GAAP and other than changes
which would not have a material impact on Raindance or its Subsidiaries;
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(l) file or amend any Tax Return except in the ordinary course
of business; settle or compromise any material Tax Liability; or make,
change or revoke any material Tax election or change any method of Tax
accounting, except as required by applicable Law;
(m) merge or consolidate it or any of its Subsidiaries with
any other Person, except for any such transactions among its wholly owned
Subsidiaries that are not obligors or guarantors of third party
indebtedness;
(n) acquire assets or spend or commit to spend amounts on
capital expenditures in exceess of the amounts set forth in Section 4.2(n)
of the Disclosure Letter;
(p) enter into any Contract that would be required to be
listed in Section 3.3(l)(i) of the Disclosure Letter if entered into prior
to the date hereof; or
(q) agree to take any of the actions prohibited by this
Section 4.2.
4.3 STATE FILINGS. Upon the terms and subject to the conditions of this
Agreement and prior to or in connection with the Closing, Raindance and Merger
Sub shall execute and the Parties shall cause to be filed the Certificate of
Merger with the Secretary of State of the State of Delaware.
4.4 RAINDANCE STOCKHOLDER APPROVAL.
(a) Raindance shall call a meeting of its stockholders to be held as
soon as reasonably practicable for the purpose of obtaining the Raindance
Stockholder Approval and such other matters as the Board of Directors of
Raindance may direct, and shall use its reasonable best efforts to cause such
meeting to occur as soon as reasonably practicable. The Board of Directors of
Raindance shall make the Directors' Recommendation to its stockholders and such
Directors' Recommendation shall be included in the Proxy Statement; provided,
that the Raindance Board of Directors may withdraw, modify, or change in an
adverse manner to West its recommendations and may approve or recommend any
Acquisition Proposal or may make any disclosure that it determines in good faith
to be required by any applicable Law and may omit the Directors' Recommendation
from the Proxy Statement if the Board of Directors of Raindance concludes in
good faith (after consultation with its outside counsel) that the failure to so
withdraw, modify, or change its recommendations or approve or recommend any
Acquisition Proposal or make any disclosure (or the inclusion of the Directors'
Recommendation in the Proxy Statement) would violate the fiduciary duties of
Raindance's Board of Directors under applicable Law. Notwithstanding such
withdrawal, modification or change of such Directors' Recommendation, Raindance
shall nevertheless submit this Agreement to its stockholders for adoption,
unless this Agreement has been terminated in accordance with Section 6.1.
(b) Raindance shall use its reasonable best efforts to prepare and
file, as promptly as practicable after the date of this Agreement, the proxy
statement of Raindance (the "Proxy Statement") with the SEC and shall promptly
notify West of the receipt of all comments of the SEC with respect to the Proxy
Statement or any documents incorporated by reference therein and of any request
by the SEC for any amendment or supplement thereto or for additional information
and shall promptly provide to West copies of all correspondence between
Raindance and/or any of its directors, officers, employees or Representatives
and the SEC with respect to the Proxy Statement and such incorporated documents.
Raindance and West shall each use its reasonable best efforts to promptly
provide responses to the SEC with respect to all comments received on the Proxy
Statement and such incorporated documents from the SEC and Raindance shall cause
the definitive Proxy Statement to be mailed as promptly as possible after
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the date the SEC staff advises that it has no further comments thereon or that
Raindance may commence mailing the Proxy Statement. Prior to filing or mailing
the Proxy Statement or filing any other required filings in connection with the
Merger (or, in each case, any amendment or supplement thereto) or responding to
any comments of the SEC with respect thereto, Raindance shall provide West with
a reasonable opportunity to review and comment on such document or response and
shall include in such document or response comments reasonably proposed by West
as long as such reasonable comments are provided to Raindance promptly (and in
any event within two days) after West receives such documents or response;
provided, that nothing in this Section 4.4(b) shall be deemed to require
Raindance to provide West with any opportunity to review or comment on documents
or responses related to disclosures permitted by Section 4.9(c) or the proviso
in the second sentence of Section 4.4(a).
(c) Each Party shall, upon request by the other, furnish the other
with all information concerning itself, its Subsidiaries, directors, officers
and stockholders and such other matters as may be reasonably necessary or
advisable in connection with the Proxy Statement or any other statement, filing,
notice or application made by or on behalf of Raindance, West or any of their
respective Subsidiaries to any third party and/or any Governmental Authority in
connection with the Merger and the transactions contemplated by this Agreement.
(d) Raindance agrees, as to itself and its Subsidiaries, that (i)
the Proxy Statement and any amendment or supplement thereto will comply in all
material respects with the applicable provisions of the 1934 Act and the rules
and regulations thereunder and (ii) none of the information supplied by
Raindance or any of its Subsidiaries for inclusion or incorporation by reference
in the Proxy Statement will, at the date of mailing to its stockholders or at
the time of the meeting of its stockholders held for the purpose of obtaining
the Raindance Stockholder Approval, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
in which they are made, not misleading; provided, that no representation is made
by Raindance with respect to statements made therein based on information
supplied in writing by West or Merger Sub specifically for inclusion in such
documents.
(e) West agrees that none of the information supplied in writing by
West or Merger Sub specifically for inclusion in the Proxy Statement will, at
the date of mailing to Raindance stockholders or at the time of the meeting of
the Raindance stockholders held for the purpose of obtaining the Raindance
Stockholder Approval, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances in which they are
made, not misleading.
4.5 REASONABLE BEST EFFORTS.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, each Party shall use its reasonable best efforts, at its own cost and
expense, to (i) take, or cause to be taken, all appropriate action, and do, or
cause to be done, all things necessary, proper or advisable under applicable Law
or otherwise to promptly consummate and make effective the transactions
contemplated by this Agreement, (ii) obtain all Consents of, and give all
notices to and make all filings with, all Governmental Authorities and other
third parties that may be or become necessary for the performance of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby (other than Consents or notices from or to third parties
that are not material to Raindance) (the "Required Consents"), (iii) lift or
rescind any injunction or restraining order or other Order adversely affecting
the ability of the Parties to consummate the transactions contemplated hereby,
and (iv) fulfill all conditions to the obligations of such parties under this
Agreement. Each Party shall cooperate fully with the other Parties in promptly
seeking to obtain all such Consents, giving such notices, and making such
filings.
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Notwithstanding the foregoing, nothing contained in this Section 4.5 shall
preclude any Party from exercising its rights under this Agreement, including a
Party's right to terminate this Agreement in accordance with Section 6.1.
(b) In furtherance and not in limitation of the terms of Section
4.5(a), to the extent required by applicable Law, each of West and Raindance
shall file, or cause to be filed, a Notification and Report Form pursuant to the
HSR Act with respect to the transactions contemplated hereby as promptly as
practicable after the date of this Agreement, shall supply promptly any
additional information and documentary material that may be requested by any
Governmental Authority (including the Antitrust Division of the United States
Department of Justice and the United States Federal Trade Commission) pursuant
to the HSR Act, and shall cooperate in connection with any filing under
applicable antitrust Laws and in connection with resolving any investigation or
other inquiry concerning the transactions contemplated by this Agreement
commenced by any Governmental Authority, including the United States Federal
Trade Commission, the Antitrust Division of the United States Department of
Justice, or the office of any state attorney general; provided, that West shall
not be required to Consent to any divestiture or other structural or conduct
relief in order to obtain clearance from any Governmental Authority. In the
event that any legal, administrative, arbitral or other proceeding, claim, suit
or action is instituted (or threatened to be instituted) by a Governmental
Authority or private party challenging any of the transactions contemplated by
this Agreement or in the event that any Governmental Authority shall otherwise
object to any of the transactions contemplated by this Agreement, each of West,
Merger Sub and Raindance shall cooperate with each other and use its respective
reasonable best efforts: (A) to vigorously defend, contest and resist any such
proceeding, claim, suit, action or challenge; and (B) to have vacated, lifted,
reversed or overturned any decree, judgment, injunction or other order, whether
temporary, preliminary or permanent, that is in effect and that prohibits,
prevents or restricts consummation of the transactions contemplated by this
Agreement.
(c) To the extent permitted by Law, each Party will promptly furnish
to the other Party copies of applications filed with all Governmental
Authorities and copies of written communications received by such Party from any
Governmental Authorities with respect to the transactions contemplated hereby.
Each Party agrees that it will consult with the other Party with respect to the
obtaining of all Required Consents and each Party will keep the other Party
apprised of the status of material matters relating to completion of the
transactions contemplated hereby. Neither Party shall agree to participate in
any substantive meeting or discussion with any Governmental Authority in respect
of any filing, investigation or inquiry concerning this Agreement or the Merger
unless it consults with the other parties reasonably in advance and, to the
extent permitted by such Governmental Authority, gives the other Party the
opportunity to attend and participate. All documents that the Parties or their
respective Subsidiaries are responsible for filing with any Governmental
Authority in connection with the transactions contemplated hereby (including to
obtain Consents of Governmental Authorities) will comply as to form in all
material respects with the provisions of applicable Law.
4.6 NOTIFICATION OF CERTAIN MATTERS. Raindance shall give prompt notice to
West (and subsequently keep West informed on a current basis) upon its becoming
aware of the occurrence or existence of any fact, event or circumstance that (a)
is reasonably likely to result in any Material Adverse Effect on Raindance, or
(b) is reasonably likely to cause or constitute a breach of any of its
representations, warranties, covenants, or agreements contained herein such that
the conditions in Section 5.2(a) or 5.2(b) would not be satisfied. Raindance
shall deliver to West a copy of each written opinion of its financial advisor,
Citigroup Global Markets, as soon as reasonably practicable after Raindance's
receipt thereof.
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4.7 INVESTIGATION AND CONFIDENTIALITY.
(a) Raindance shall permit West to make or cause to be made such
investigation of the business and Properties of Raindance and its Subsidiaries
and of Raindance's financial and legal conditions as West reasonably requests;
provided, that such investigation shall be reasonably related to the
transactions contemplated hereby and shall not interfere unnecessarily with
normal operations; and provided further, that neither Raindance nor any of their
respective Subsidiaries shall be required to provide access to or to disclose
information where such access or disclosure would jeopardize the attorney-client
or other privilege with respect to such information, contravene any Law, Order,
or Contract, or result in disclosure of any trade secrets of third parties and
the Parties will use their reasonable best efforts to make appropriate
substitute disclosure arrangements, to the extent practicable, in circumstances
in which the restrictions of the preceding sentence apply. Raindance shall make
available to West (i) a copy of each material report, schedule, registration
statement and other document filed (it being agreed that electronic filing with
the SEC is deemed to satisfy the requirements of this provision (i)) or received
by it pursuant to the requirements of the federal or state securities or Tax
laws, and (ii) promptly after delivery to the Rockies Board (and in no event
later than within 15 business days after the end of each month following the
date hereof), an unaudited monthly consolidated balance sheet of Raindance and
its Subsidiaries for the month then ended and related unaudited consolidated
statements of earnings. No investigation by West shall affect the
representations and warranties of Raindance.
(b) Each Party shall continue to comply with the terms of the
Confidentiality Agreement, including with respect to information provided
pursuant to Section 4.7(a).
4.8 PRESS RELEASES; PUBLICITY. Prior to the Effective Time, the Parties
shall consult with each other as to the form and substance of any press release
or other public statement reasonably related to this Agreement and the
transactions contemplated hereby prior to issuing such press release or public
statement or making any other public disclosure related thereto; provided, that
nothing in this Section 4.8 shall be deemed to require consultation of any Party
with respect to any disclosure that may be consistent with actions taken by
Raindance or its Board of Directors pursuant to Sections 4.4(a) or 4.9(c).
4.9 ACQUISITION PROPOSALS.
(a) Raindance agrees that it will not, and will cause its directors,
officers, investment bankers, financial advisors, attorneys and accountants not
to, and shall use its reasonable best efforts to cause its employees and other
agents not to (it being understood that once Raindance discovers that any
employee or other agent has engaged in activity that violates this Section
4.9(a), it shall promptly cause such employee or other agent to cease such
activity), (i) initiate, solicit, knowingly encourage or knowingly facilitate
inquiries or proposals with respect to, (ii) engage or participate in any
negotiations concerning, (iii) provide any confidential or nonpublic information
or data to, or provide access to its properties, books, records or personnel to,
(iv) have or participate in any discussions with, or (v) exempt from the
restrictions contained in any Takeover Laws, including Section 203 of the DGCL,
any Person relating to any Acquisition Proposal; provided that, notwithstanding
anything to the contrary contained in this Section 4.9 or elsewhere in this
Agreement, in the event Raindance receives an unsolicited bona fide Acquisition
Proposal at any time prior to, but not after, the time this Agreement is adopted
by the Raindance Stockholder Approval, and Raindance's Board of Directors
concludes in good faith that such Acquisition Proposal constitutes or is
reasonably likely to result in a Superior Proposal, Raindance may, and may
permit its officers and Representatives to, furnish or cause to be furnished
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nonpublic information or data, provide access to its properties, books, records
or personnel, exempt from the restrictions contained in any Takeover Laws,
including Section 203 of the DGCL, the Person submitting such Acquisition
Proposal, modify, waive, amend or release any standstill, confidentiality or
similar agreements, and participate in such negotiations or discussions to the
extent that the Board of Directors of Raindance concludes in good faith (after
consultation with outside counsel) that failure to take such actions would
violate its fiduciary duties under applicable Law; provided further, that prior
to providing any nonpublic information permitted to be provided pursuant to the
foregoing proviso, it shall have entered into a confidentiality agreement with
such third party on terms no less favorable to it than the terms currently in
effect in the Confidentiality Agreement. Raindance will (i) immediately cease
and cause to be terminated any activities, discussions or negotiations conducted
before the date of this Agreement with any Persons other than West with respect
to any Acquisition Proposal and request the prompt return or destruction of all
confidential information previously furnished to such parties or their
Representatives between January 1, 2005 and the date of this Agreement and (ii)
except as provided above in this Section 4.4(a), not modify, waive, amend or
release any standstill, confidentiality or similar agreements entered into with
such parties. Raindance shall promptly (within two days) advise West following
receipt of any Acquisition Proposal and the substance thereof (including the
identity of the Person making such Acquisition Proposal), and will keep West
apprised of any related developments, discussions and negotiations on a current
basis.
(b) If, in response to an Acquisition Proposal that was not
solicited by Raindance and which did not otherwise result from a breach of
Section 4.9(a) (an "Outside Proposal"), the Board of Directors of Raindance
concludes in good faith (after consultation with outside counsel) that
notwithstanding this Agreement and any concessions which may be offered by West
in negotiations entered into pursuant to the following sentence, such Outside
Proposal is a Superior Proposal the Board of Directors of Raindance may (subject
to this and the following two sentences) terminate this Agreement (and
concurrently with or after such termination, if it so chooses, cause Raindance
to enter into a letter of intent, agreement in principle, memorandum of
understanding, merger, acquisition, purchase or joint venture agreement or other
agreement with respect to the Superior Proposal that prompted such termination),
but only at a time that is prior to the time this Agreement is adopted by the
Raindance Stockholder Approval and after the second business day following
West's receipt of written notice advising West that the Board of Directors of
Raindance is prepared to accept such Outside Proposal, specifying the material
terms and conditions of such Outside Proposal and identifying the person making
such Outside Proposal. If requested by West in response to a notice advising
West that the Board of Directors of Raindance is prepared to accept such Outside
Proposal, during the two business day period referred to in the preceding
sentence, Raindance shall, and shall cause its directors, officers, investment
bankers, financial advisors, and attorneys to, negotiate in good faith with West
to make such adjustments in the terms and conditions of this Agreement as would
enable the Board of Directors to proceed with the transactions contemplated
herein on such adjusted terms (any proposal from West based on such adjusted
terms being referred to as the "Adjusted West Proposal"). No withdrawal or
modification of the Directors' Recommendation or acceptance of an Outside
Proposal shall change the approval of the Raindance Board of Directors for
purposes of causing any Takeover Laws to be inapplicable to the transactions
contemplated by this Agreement.
(c) Nothing contained in this Agreement shall prevent Raindance or
its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the
1934 Act with respect to an Acquisition Proposal; provided, if such disclosure
has the effect of withdrawing or modifying the Directors' Recommendation in a
manner adverse to West, West shall have the right to terminate this Agreement to
the extent set forth in Section 6.1(e) and such withdrawal or modification must
comply with Section 4.4.
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4.10 TAKEOVER LAWS. If any Takeover Law may become, or may purport to be,
applicable to the transactions contemplated hereby, Raindance and the members of
its Board of Directors will grant such approvals and take such actions as are
necessary (other than any action requiring the approval of its stockholders
(other than as contemplated by Section 4.4)) so that the transactions
contemplated by this Agreement may be consummated as promptly as practicable on
the terms contemplated hereby and otherwise act to eliminate or minimize the
effects of any Takeover Law on any of the transactions contemplated by this
Agreement.
4.11 EMPLOYEE BENEFITS AND CONTRACTS.
(a) Following the Effective Time, West at its election shall either
(i) provide generally to officers and employees of Raindance, who at or after
the Effective Time remain employees of the Surviving Corporation ("Continuing
Employees"), employee benefits under Benefit Plans maintained by West, on terms
and conditions which are substantially the same as for similarly situated
officers and employees of West and its Subsidiaries, or (ii) maintain, for the
benefit of the Continuing Employees, the Benefit Plans maintained by Raindance
immediately prior to the Effective Time; provided, however that any Continuing
Employee who was deemed by Raindance as a full-time employee of Raindance as of
the Effective Time and who is terminated by West within one year following the
Effective Time shall be entitled to the severance payments set forth in Section
4.11(a) of Raindance's Disclosure Letter. For purposes of this Section 4.11,
Benefit Plans maintained by West are deemed to include Benefit Plans maintained
by its Subsidiaries. As of immediately prior to the Effective Time, Raindance's
Board of Directors shall adopt resolutions terminating all Benefit Plans that
are intended to qualify under section 401(a) of the Code.
(b) For purposes of participation and vesting (but not accrual of
benefits) under Benefit Plans maintained by West, service with Raindance or any
of its predecessors shall be treated as service with West. West shall cause
welfare Benefit Plans maintained by West that cover the Continuing Employees
after the Effective Time to (A) waive any waiting period and restrictions and
limitations for preexisting conditions or insurability (except for pre-existing
conditions that were excluded under welfare Benefit Plans maintained by
Raindance), and (B) cause any deductible, co-insurance, or maximum out-of-pocket
payments made by the Continuing Employees under welfare Benefit Plans maintained
by Raindance to be credited to such Continuing Employees under welfare Benefit
Plans maintained by West, so as to reduce the amount of any deductible,
co-insurance, or maximum out-of-pocket payments payable by the Continuing
Employees under welfare Benefit Plans maintained by West.
(c) West shall, and shall cause the Surviving Corporation to, honor
all employment, severance, consulting, and other compensation Contracts
disclosed in Raindance's Disclosure Letter or filed as exhibits to its SEC
Reports prior to the date of this Agreement.
(d) Nothing in this Section 4.11 shall be interpreted as preventing
West, from and after the Effective Time, from amending, modifying or terminating
any Benefit Plans maintained by Raindance or it, or other Contracts,
arrangements, commitments or understandings, in accordance with their terms and
applicable Law.
4.12 INDEMNIFICATION.
(a) From and after the Effective Time, in the event of any
threatened or actual claim, action, suit, proceeding, or investigation, whether
civil, criminal, or administrative, in which any Person who is now, or has been
at any time prior to the date of this Agreement, or who becomes prior to the
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Effective Time, a director or officer of Raindance (each an "Indemnified Party")
is, or is threatened to be, made a party based in whole or in part on, or
arising in whole or in part out of, or pertaining to (i) the fact that the
Indemnified Party is or was a director, officer, or employee of Raindance or any
of its predecessors, or (ii) this Agreement or any of the transactions
contemplated hereby, whether in any case asserted or arising before or after the
Effective Time, West shall cause the Surviving Corporation to indemnify, defend
and hold harmless, to the same extent such Indemnified Parties are indemnified
or have the right to advancement of expenses pursuant to the Organizational
Documents of Raindance and indemnification agreements, if any, in existence on
the date of this Agreement with Raindance or its Subsidiaries and disclosed in
Raindance's Disclosure Letter, and to the fullest extent permitted by Law, each
such Indemnified Party against any Liability (including advancement of
reasonable attorneys' fees and expenses prior to the final disposition of any
claim, suit, proceeding, or investigation to each Indemnified Party to the
fullest extent permitted by Law upon receipt of any undertaking required by
applicable Law), judgments, fines, and amounts paid in settlement in connection
with any such threatened or actual claim, action, suit, proceeding, or
investigation.
(b) West agrees that all rights to indemnification and all
limitations on Liability existing in favor of the directors, officers, and
employees of Raindance (the "Covered Parties") as provided in their respective
Organizational Documents as in effect as of the date of this Agreement or in any
indemnification agreement in existence on the date of this Agreement with
Raindance and disclosed in Raindance's Disclosure Letter with respect to matters
occurring prior to the Effective Time shall survive the Merger and shall
continue in full force and effect, and West shall cause such rights to
indemnification and limitations on Liability to be honored by such entities or
their respective successors as if they were the indemnifying party thereunder,
without any amendment thereto; provided, that nothing contained in this Section
4.12(b) shall be deemed to preclude the liquidation, consolidation, or merger of
the Surviving Corporation, in which case all of such rights to indemnification
and limitations on Liability shall be deemed to so survive and continue
notwithstanding any such liquidation, consolidation, or merger. Without limiting
the foregoing, in any case in which approval by the Surviving Corporation is
required to effectuate any indemnification, the Surviving Corporation shall
direct, at the election of the Indemnified Party, that the determination of any
such approval shall be made by independent counsel mutually agreed upon between
West and the Indemnified Party.
(c) West, from and after the Effective Time, will directly or
indirectly cause the Persons who served as directors or officers of Raindance at
or before the Effective Time to be covered by Raindance's existing directors'
and officers' liability insurance policy or by "tail" insurance policies with at
least the same coverage and amounts containing terms and conditions which are
not less advantageous than Raindance's existing directors' and officers'
liability insurance policy; provided, that West may substitute therefor policies
of at least the same coverage and amounts containing terms and conditions which
are not less advantageous than such policy; provided further, that in no event
shall West or any of its Subsidiaries be required to expend for premiums
applicable to coverage in any one year an amount in excess of 150% of the
current annual premium paid by Raindance (as set forth in Section 4.12 of
Raindance's Disclosure Letter) for such insurance; provided, further that if the
annual premiums of such insurance coverage exceed such amount, West or the
Surviving Corporation shall be obligated to obtain a policy with the greatest
coverage available for a cost not exceeding such amount. Such insurance coverage
shall commence at the Effective Time and will be provided for a period of no
less than six years after the Effective Time.
(d) If West or the Surviving Corporation or any of their respective
successors or assigns shall consolidate with or merge into any other Person and
shall not be the continuing or surviving Person of such consolidation or merger
or shall transfer all or substantially all of its assets to any Person,
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then and in each case, proper provision shall be made so that the successors and
assigns of West and the Surviving Corporation shall assume the obligations set
forth in this Section 4.12.
(e) The Indemnified Parties to whom this Section 4.12 applies shall
be third party beneficiaries of this Section 4.12. The provisions of this
Section 4.12 are intended to be for the benefit of and shall be enforceable by,
each Indemnified Party and his or her heirs and representatives.
4.13 DIRECTOR RESIGNATIONS. Raindance shall use commercially reasonable
efforts to procure the resignation or removal of each of the members of the
Boards of Directors of Raindance and its Subsidiaries as of the Effective Time.
4.14 FINANCING. West shall take all actions necessary to ensure that it
has available to it, at the Effective Time, all funds necessary for the payment
of the Merger Consideration and all funds necessary to satisfy all of its and
the Surviving Corporation's obligations under Articles 1 and 2 of this
Agreement. Further, West will use reasonable best efforts to give prompt notice
to Raindance (and subsequently keep Raindance informed on a current basis) upon
its becoming aware of any developments that are reasonably likely to cause or
constitute a breach of Section 3.4(d) (after giving effect to Sections 3.1 and
3.2) or the foregoing sentence of this Section 4.14 (and in any event within 48
hours of the time West becomes aware of such development).
ARTICLE 5
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
5.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective obligations of
each Party to perform this Agreement and to consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by each Party pursuant to Section 7.7:
(a) Stockholder Approval. Raindance shall have obtained the
Raindance Stockholder Approval.
(b) HSR Act. The waiting period under the HSR Act, if applicable,
shall have expired or been terminated.
(c) No Orders or Restraints; Illegality. No Order issued by any
Governmental Authority (whether temporary, preliminary, or permanent) preventing
the consummation of the Merger shall be in effect and no Law or Order shall have
been enacted, entered, promulgated or enforced by any Governmental Authority
that prohibits, restrains, or makes illegal the consummation of the Merger.
(d) Other Governmental Approvals. Any other approval of any
Government Authority or waiting periods under any applicable law or regulation
of any Governmental Authority shall be obtained or have expired (without the
imposition of any material condition) if the failure to obtain any such approval
or the failure of any such waiting period to expire would reasonably be expected
to subject any person to a material risk of criminal liability involving felony
charges or material civil liability.
5.2 CONDITIONS TO OBLIGATIONS OF WEST. The obligations of West to perform
this Agreement and consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following conditions, unless
waived by West pursuant to Section 7.7:
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(a) Representations and Warranties. (i) The representations and
warranties of Raindance set forth in this Agreement, disregarding all Material
Adverse Effect and, except as expressly provided in this Section 5.2(a),
materiality qualifications contained therein (but not disregarding any dollar
thresholds contained in any representations or warranties or any materiality
qualifiers contained in the Specified Representations), shall be true and
correct as of the date of this Agreement and as of the Closing Date as though
made at and as of the Closing Date (except that representations and warranties
that by their terms speak specifically as of the date of this Agreement or some
other date shall be true and correct as of such date), except in each such case
as of the date of this Agreement, the Closing Date or any other date where the
failure of any such representations and warranties to be so true and correct has
not had and would not reasonably be likely to have a Material Adverse Effect on
Raindance and (ii) the representations and warranties of Raindance set forth in
Section 3.3(c) of this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though
made at and as of the Closing Date (except that representations and warranties
set forth in Section 3.3(c) that by their terms speak specifically as of the
date of this Agreement or some other date shall be true and correct in all
material respects as of such date). West shall have received a certificate,
dated the Closing Date, signed on behalf of Raindance by the Chief Executive
Officer and Chief Financial Officer of Raindance, to such effect.
(b) Performance of Agreements and Covenants. The agreements and
covenants of Raindance to be performed and complied with pursuant to this
Agreement prior to the Effective Time shall have been duly performed and
complied with in all material respects (it being understood that for purposes of
this Section 5.2(b), an adverse impact on Raindance's recurring EBITDA as a
result of such non-compliance shall be taken into account for purposes of
determining the materiality of such non-compliance) and West shall have received
a certificate, dated the Closing Date, signed on behalf of Raindance by the
Chief Executive Officer and Chief Financial Officer of Raindance, to such
effect.
(c) Corporate Authorization. West shall have received from Raindance
(i) certified resolutions of its Board of Directors and stockholders authorizing
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby; and (ii) certificates of good standing, dated
as of a recent date before the Closing Date, from the Secretaries of State of
the States of Delaware, Colorado, California and Georgia.
(d) Material Adverse Effect. Since the date hereof, there shall not
have occurred any fact, circumstance or event, individually or taken together
with all other facts, circumstances or events, that has had or is reasonably
likely to have a Material Adverse Effect on Raindance.
5.3 CONDITIONS TO OBLIGATIONS OF RAINDANCE. The obligations of Raindance
to perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by Raindance pursuant to Section 7.7:
(a) Representations and Warranties. The representations and
warranties of West set forth in this Agreement, disregarding all Material
Adverse Effect qualifications contained therein, shall be true and correct as of
the date of this Agreement and as of the Closing Date as though made at and as
of the Closing Date (except that representations and warranties that by their
terms speak specifically as of the date of this Agreement or some other date
shall be true and correct as of such date), except in each such case as of the
date of this Agreement, the Closing Date or any other date where the failure of
any such representations and warranties to be so true and correct has not had
and would not reasonably be
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likely to have a Material Adverse Effect on West, and Raindance shall have
received a certificate, dated the Closing Date, signed on behalf of West by a
duly authorized officer of West, to such effect.
(b) Performance of Agreements and Covenants. The agreements and
covenants of West to be performed and complied with pursuant to this Agreement
prior to the Effective Time shall have been duly performed and complied with in
all material respects and Raindance shall have received a certificate, dated the
Closing Date, signed on behalf of West by a duly authorized officer of West, to
such effect.
ARTICLE 6
TERMINATION
6.1 TERMINATION. Notwithstanding any other provision of this Agreement,
and notwithstanding the Raindance Stockholder Approval, this Agreement may be
terminated and the Merger abandoned at any time prior to the Effective Time:
(a) By mutual consent of the Board of Directors of both
Parties; or
(b) By the Board of Directors of either Party in the event of
a breach of any representation, warranty, covenant or agreement contained
in this Agreement on the part of the other Party, which breach would
result in, if occurring or continuing on the Closing Date, the failure of
the conditions to the terminating Party's obligations set forth in
Sections 5.2 or 5.3, as the case dictates, and which cannot be or has not
been cured within 30 days after the giving of written notice to the
breaching Party of such breach; or
(c) By the Board of Directors of either Party in the event
that (i) any Consent required to be obtained from any Governmental
Authority has been denied by final nonappealable action of such
Governmental Authority, and the failure to obtain any such Consent would
reasonably be expected to subject any person to a material risk of
criminal liability involving felony charges or material civil liability,
or (ii) the Raindance Stockholder Approval has not been obtained by reason
of the failure to obtain the required vote at the Raindance stockholders'
meeting where this Agreement was presented to such shareholders for
approval and voted upon; or
(d) By the Board of Directors of either Party in the event
that the Merger has not been consummated by August 1, 2006, if the failure
to consummate the transactions contemplated hereby on or before such date
is not caused by any breach of this Agreement by the Party electing to
terminate pursuant to this Section 6.1(d); or
(e) By the Board of Directors of West in the event that (i)
Raindance has withdrawn or modified the Director's Recommendation in a
manner adverse to West, or (ii) the Board of Directors of Raindance has
recommended, endorsed, accepted or agreed to an Acquisition Proposal.
(f) By the Board of Directors of Raindance in accordance with
Section 4.9(b); provided that (1) Raindance has not breached Section 4.9
in any material respect, and (2) Raindance has tendered the Termination
Fee to West.
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6.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
become void and have no effect, and none of West, Raindance, any of their
respective Subsidiaries, or any of the officers or directors of any of them,
shall have any Liability of any nature whatsoever hereunder or in conjunction
with the transactions contemplated hereby, except that (i) the provisions of
Section 4.7(b), this Section 6.2, and Article 7 shall survive any such
termination and abandonment, and (ii) a termination of this Agreement shall not
relieve the breaching Party from Liability for an uncured willful breach of a
representation, warranty, covenant, or agreement of such Party contained in this
Agreement.
ARTICLE 7
MISCELLANEOUS
7.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"ACQUISITION PROPOSAL" shall mean, other than the transactions
contemplated by this Agreement, any offer, proposal or inquiry relating
to, or any third party indication of interest in, (i) any acquisition or
purchase, direct or indirect, of 30% or more of the assets of Raindance
(based on the fair market value thereof) or 30% or more of the voting
power of Raindance, (ii) any tender offer (including a self-tender offer)
or exchange offer that, if consummated, would result in such third party
beneficially owning 30% or more of the voting power of Raindance, or (iii)
a merger, consolidation, share exchange, business combination,
reorganization, recapitalization or other similar transaction which would
result in a third party beneficially owning 30% or more of the voting
power of Raindance, or a liquidation or dissolution of Raindance.
"AFFILIATE" of a Person shall mean (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person or (ii) any
director, partner or officer of such Person or, for any Person that is a
limited liability company, any manager or managing member thereof. For
purposes of this definition, "control" (and its derivatives) shall mean
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through
ownership of equity, voting or other interests, as trustee or executor, by
contract or otherwise.
"BENEFIT PLAN" shall mean any written pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other incentive plan, any
other written employee program or agreement, any medical, vision, dental,
or other written health plan, any life insurance plan, and any other
written employee benefit plan or fringe benefit plan, including any
written "employee benefit plan" (as that term is defined in Section 3(3)
of ERISA), maintained by, sponsored in whole or in part by, or
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contributed to by a Party for the benefit of its and its Subsidiaries'
employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which such employees,
retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries are eligible to participate.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Confidentiality Agreement, dated August 24, 2004, as amended December 15,
2005, by and between West and Raindance.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, commitment, contract, indenture, instrument, lease,
understanding, or undertaking of any kind or character to which any Person
is a party or that is binding on any Person or its capital stock, assets,
or business.
"DEFAULT" shall mean (i) any breach or violation of or default
under any Contract, Law, Order, or Permit, (ii) any occurrence of any
event that with the passage of time or the giving of notice or both would
constitute a breach or violation of or default under any Contract, Law,
Order, or Permit, or (iii) any occurrence of any event that with or
without the passage of time or the giving of notice would give rise to a
right to terminate or revoke, materially and adversely change the current
terms of, or renegotiate, or to accelerate, increase, or impose any
material Liability under, any Contract, Law, Order, or Permit.
"DGCL" shall mean the Delaware General Corporation Law.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient air,
surface water, ground water, land surface, or subsurface strata) and which
are administered, interpreted, or enforced by the United States
Environmental Protection Agency and state and local agencies with
jurisdiction over, and including common Law in respect of, pollution or
protection of the environment, including CERCLA, the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. 6901, et seq., and other Laws
relating to emissions, discharges, releases, or threatened releases of any
Hazardous Material, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA AFFILIATE" of any Person means any entity that is, or
at any relevant time was, a member of (i) a controlled group of
corporations (as defined in Section 414(b) of the Internal Revenue Code),
(ii) a group of trades or businesses under common control (as defined in
Section 414(c) of the Internal Revenue Code) or (iii) an affiliated
service group (as defined under Section 414(m) of the Internal Revenue
Code or the regulations under Section 414(o) of the Internal Revenue Code)
with such Person.
"ERISA PLAN" shall mean any Benefit Plan which is an "employee
welfare benefit plan," as that term is defined in Section 3(l) of ERISA,
or an "employee pension benefit plan," as that term is defined in Section
3(2) of ERISA.
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"FACILITIES" shall mean all buildings and improvements on the
Property of any Person.
"FINANCIAL STATEMENTS" shall mean (i) the consolidated balance
sheets (including related notes and schedules, if any) of Raindance and
its Subsidiaries as of September 30, 2005, and as of December 31, 2004 and
2003, and the related consolidated statements of operations, cash flows,
and stockholders' equity and comprehensive income (loss) (including
related notes and schedules, if any) for the nine months ended September
30, 2005 and for each of the three years ended December 31, 2004, 2003 and
2002, as filed by Raindance in its SEC Reports, and (ii) the consolidated
balance sheets of Raindance and its Subsidiaries (including related notes
and schedules, if any), and related statements of operations, cash flows,
and stockholders' equity and comprehensive income (loss) (including
related notes and schedules, if any) included in its SEC Reports filed
with respect to periods ended subsequent to September 30, 2005.
"GAAP" shall mean United States generally accepted accounting
principles, consistently applied during the periods involved.
"GOVERNMENTAL AUTHORITY" shall mean the Federal Communications
Commission, the Federal Trade Commission, the Internal Revenue Service,
all state regulatory agencies having jurisdiction over the Parties and
their respective Subsidiaries, the Nasdaq, the SEC and any other domestic
or foreign court, administrative agency, commission or other governmental
authority or instrumentality (in each case including the staff thereof),
or any industry self-regulatory authority (including the staff thereof).
"GOVERNMENT CONTRACT" means any contract (including any
subcontract with a prime contractor or other subcontractor who is a party
to any such contract) to which Raindance or any of its Subsidiaries is a
party, or by which any of them are bound, the ultimate contracting party
of which is either (i) the United States Government or (ii) with respect
to any contract that provides for or is reasonably likely to require
annual payments to Raindance of $100,000 or more, any other Governmental
Authority.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental
Laws), and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products that are or become regulated under any applicable
local, state, or federal Law (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, any successor statute thereto, and the rules and
regulations promulgated thereunder.
"INTELLECTUAL PROPERTY" shall mean (i) any patents,
copyrights, trademarks, service marks, maskworks or similar rights
throughout the world, and applications or registrations for any of the
foregoing, (ii) any proprietary interest, whether registered or
unregistered, in know-how, copyrights, trade secrets, database rights,
data in databases, website content, inventions, invention disclosures or
applications, software (including source and object code), operating and
manufacturing procedures, designs, specifications and the like, (iii) any
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proprietary interest in any similar intangible asset of a technical,
scientific or creative nature, including slogans, logos and the like and
(iv) any proprietary interest in or to any documents or other tangible
media containing any of the foregoing.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder.
"KNOWLEDGE" of any Party or "KNOWN TO" a Party and any other phrases
of similar import means, with respect to any matter in question relating
to a Party, if any of the Chairman of the Board, Chief Executive Officer,
President, Chief Financial Officer or General Counsel of such Party have
actual knowledge of such matter, after reasonable inquiry of their direct
subordinates who would be likely to have knowledge of such matter and
reasonable review of records readily available to such officer.
"LAW" shall mean any code, law (including any rule of common law),
ordinance, regulation, rule, or statute applicable to a Person or its
assets, Liabilities, or business, including those promulgated,
interpreted, or enforced by any Governmental Authority.
"LIABILITY" shall mean any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, cost, or expense (including
costs of investigation, collection, and defense), claim, deficiency, or
guaranty of any type, whether accrued, absolute or contingent, liquidated
or unliquidated, matured or unmatured, or otherwise.
"LIEN" shall mean any mortgage, pledge, reservation, restriction
(other than a restriction on transfers arising under the Securities Laws),
security interest, lien, or encumbrance of any nature whatsoever of, on,
or with respect to any property or property interest, other than: Liens
for property Taxes not yet due and payable; liens, encumbrances or
imperfections of title that have arisen in the ordinary course of
business; liens, encumbrances or imperfections of title arising under any
of the Contracts identified in Section 7.1(a) of Raindance's Disclosure
Letter referred or filed as exhibits to Raindance's SEC Reports filed
prior to the date of this Agreement; and liens, encumbrances or
imperfections of title relating to liabilities reflected in the Financial
Statements (including any related notes) contained in Raindance's SEC
Reports filed prior to the date of this Agreement.
"LITIGATION" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, demand letter, governmental or
other examination or investigation, hearing, inquiry, administrative or
other proceeding, or notice (written or oral) by any Person alleging
potential Liability, but shall not include claims of entitlement under any
Benefit Plans that are made or received in the ordinary course of
business.
"NASDAQ" shall mean the National Market System of The Nasdaq Stock
Market.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or
writ of any federal, state, local, or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Governmental Authority.
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"ORGANIZATIONAL DOCUMENTS" shall mean the articles of incorporation,
certificate of incorporation, charter, bylaws or other similar governing
instruments, in each case as amended as of the date specified, of any
Person.
"PARTY" shall mean West and Merger Sub, on the one hand, or
Raindance, on the other hand, and "PARTIES" shall mean West, Merger Sub
and Raindance.
"PENSION PLAN" shall mean any ERISA Plan which is also subject to
Section 412 of the Internal Revenue Code or Section 302 of ERISA.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, or permit from Governmental Authorities that are
required for the operation of the businesses of a Person or its
Subsidiaries.
"PERMITTED ISSUANCES" shall mean issuances of Raindance Common Stock
upon exercise of outstanding Rights issued under the Raindance Stock Plans
or upon exercise of Raindance Warrants or pursuant to the ESPP.
"PERSON" shall mean any natural person or any legal, commercial, or
governmental entity, including, a corporation, general partnership, joint
venture, limited partnership, limited liability company, trust, business
association, or person acting in a representative capacity, as well as any
syndicate or group that would be deemed to be a person under Section
13(d)(3) of the 1934 Act.
"PROPERTY" shall mean all real property leased or owned by any
Person and its Subsidiaries, either currently or in the past.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, agent or other representative
of a Person.
"RIGHTS" shall mean, with respect to any Person, securities, or
obligations convertible into or exercisable for, or giving any other
Person any right to subscribe for or acquire, or any options, calls,
restricted stock, deferred stock awards, stock units, phantom awards,
dividend equivalents, or commitments relating to, or any stock
appreciation right or other instrument the value of which is determined in
whole or in part by reference to the market price or value of, shares of
capital stock of such Person, whether vested or unvested or exercisable or
unexercisable, and shall include the Raindance Options.
"RAINDANCE COMMON STOCK" shall mean the $.0015 par value per share
common stock of Raindance.
"RAINDANCE OPTION" shall mean an option to purchase a share or
shares of Raindance Common Stock.
"RAINDANCE STOCKHOLDER APPROVAL" shall mean the adoption of this
Agreement by the holders of at least a majority of the outstanding shares
of Raindance Common Stock.
"RAINDANCE STOCK PLAN" shall mean any equity compensation plan of
Raindance.
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"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC REPORTS" shall mean all forms, proxy statements, registration
statements, reports, schedules, and other documents filed, or required to
be filed, by a Party or any of its Subsidiaries with the SEC.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, the Investment Advisers Act of 1940, and
the Trust Indenture Act of 1939, each as amended, state securities and
"Blue Sky" Laws, including in each case the rules and regulations of any
Governmental Authority promulgated thereunder.
"SPECIFIED REPRESENTATIONS" shall mean the representations contained
in Sections 3.3(b)(iii), 3.3(d)(iii), 3.3(d)(v), 3.3(k)(ii) and
3.3(l)(ii).
"SUBSIDIARY" or "SUBSIDIARIES" shall have the meaning assigned in
Rule 1-02(x) of Regulation S-X of the SEC.
"SUPERIOR PROPOSAL" means any bona fide, unsolicited, written
Acquisition Proposal for at least a majority of the outstanding shares of
Raindance Common Stock on terms that the Board of Directors of Raindance
concludes in good faith to be more favorable from a financial point of
view to its stockholders than the Merger and the other transactions
contemplated by this Agreement (including the terms, if any, proposed by
West to amend or modify the terms of the transactions contemplated by this
Agreement, subject to Section 4.9(b)), (1) after consulting with its
financial advisors (who shall be a nationally recognized investment
banking firm), and (2) after taking into account the likelihood of
consummation of such transaction on the terms set forth therein (as
compared to, and with due regard for, the terms herein).
"TAX" OR "TAXES" shall mean all federal, state, local, and foreign
taxes, charges, fees, levies, imposts, duties, or other like assessments,
including assessments for unclaimed property, as well as income, gross
receipts, excise, employment, sales, use, transfer, intangible, recording,
license, payroll, franchise, severance, documentary, stamp, occupation,
windfall profits, environmental, federal highway use, commercial rent,
customs duties, capital stock, paid-up capital, profits, withholding,
Social Security, single business and unemployment, disability, real
property, personal property, registration, ad valorem, value added,
alternative or add-on minimum, estimated, or other tax or governmental fee
of any kind whatsoever, imposed or required to be withheld by the United
States or any state, local, or foreign government or subdivision or agency
thereof, whether disputed or not, including any related interest,
penalties, and additions imposed thereon or with respect thereto, and
including any liability for Taxes of another Person pursuant to a
contract, as a transferee or successor, under Treasury Regulation Section
1.1502-6 or analogous provision of state, local or foreign law or
otherwise. The term "Tax" shall also include any universal service fund or
similar charge imposed by any state, Federal or other Governmental
Authority.
"TAX RETURN" shall mean any report, return, information return, or
other information provided or required to be provided to a Taxing
Authority in connection with Taxes, including any return of an Affiliated
or combined or unitary group that includes a Party or its Subsidiaries and
including without limitation any estimated Tax return.
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"TAXABLE PERIOD" shall mean any period prescribed by any Taxing
Authority.
"TAXING AUTHORITY" shall mean any federal, state, local, municipal,
foreign, or other Governmental Authority, instrumentality, commission,
board or body having jurisdiction over the Parties to impose or collect
any Tax.
"TECHNOLOGY SYSTEMS" shall mean the electronic data processing,
information, record keeping, communications, telecommunications, hardware,
third party software, networks, peripherals, and computer systems,
including any outsourced systems and processes, used by Raindance.
"TERMINATION FEE" shall mean $4,500,000.
"WEST COMMON STOCK" shall mean the $.01 par value per share common
stock of West.
(b) The terms set forth below shall have the meanings ascribed thereto
in the referenced sections:
Adjusted West Proposal.................. Section 4.9(b)
Agreement............................... Preamble
CERCLA.................................. Section 3.3(h)
Certificates............................ Section 1.4(b)
Certificate of Merger................... Section 1.3
Closing................................. Section 1.2
Closing Date............................ Section 1.2
Continuing Employees.................... Section 4.11(a)
Covered Parties......................... Section 4.12(b)
Directors' Recommendation............... Section 3.3(b)(ii)
Disclosure Letter....................... Section 3.1
Dissenting Shares....................... Section 1.4(a)
Effective Time.......................... Section 1.3
ESPP.................................... Section 1.6(e)
Exchange Fund........................... Section 2.1(a)
Excluded Shares......................... Section 1.4(d)
Final Exercise Period................... Section 1.6(e)
Indemnified Parties..................... Section 4.12(a)
Large Customer.......................... Section 3.3(l)(ii)
Material Adverse Effect................. Section 3.2
Merger.................................. Section 1.1
Merger Consideration.................... Section 1.4(a)
Merger Sub.............................. Preamble
Outside Proposal........................ Section 4.9(b)
Paying Agent............................ Section 2.1(a)
PCBs.................................... Section 3.3(h)
Per Share Purchase Price................ Section 1.4(a)
Required Consents....................... Section 4.5(a)
Raindance............................... Preamble
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Raindance Warrant....................... Section 1.7
Proxy Statement......................... Section 4.4(b)
Xxxxxxxx-Xxxxx Act...................... Section 3.3(d)(iv)
SEC Reports............................. Section 3.3(d)(i)
Stockholder Agreements.................. Preamble
Surviving Corporation................... Section 1.1
Takeover Laws........................... Section 3.3(t)
Terminable Contract..................... Section 3.3(l)
Warrantholder........................... Section 1.7
West.................................... Preamble
(c) Any singular term in this Agreement shall be deemed to include
the plural, and any plural term the singular. Whenever the words "include,"
"includes," or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation." The words "hereby," "herein,"
"hereof" or "hereunder," and similar terms are to be deemed to refer to this
Agreement as a whole and not to any specific section.
7.2 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. Except for Articles 1
and 2, Sections 4.7(b) and 4.12 and this Article 7, the respective
representations, warranties, obligations, covenants, and agreements of the
Parties shall be deemed only to be conditions of the Merger and shall not
survive the Effective Time.
7.3 EXPENSES.
(a) Except as otherwise provided in this Section 7.3 or in Section
7.4, each of the Parties shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated
hereunder, including filing, registration, and application fees, printing fees,
and fees and expenses of its own financial or other consultants, investment
bankers, accountants, and counsel.
(b) In the event that the Termination Fee becomes payable by
Raindance to West pursuant to Section 7.4(a), or 7.4(b), in addition to the
Termination Fee and at the same time as it becomes payable pursuant to Section
7.4, Raindance shall make a nonrefundable cash payment to West in an amount
equal to the aggregate amount of all fees and expenses (including all attorneys'
fees, investment bankers' fees, accountants' fees and filing fees) that have
been paid or that may become payable by or on behalf of West in connection with
the preparation and negotiation of this Agreement, and otherwise in connection
with the Merger and the other transactions contemplated in this Agreement;
provided, that the aggregate amount payable by Raindance to West under the first
sentence of this Section 7.3(b) shall in no event exceed $700,000. In the event
that Raindance fails to pay when due any amount payable under this Section
7.3(b), then (i) Raindance shall reimburse West for all costs and expenses
(including disbursements and reasonable fees of counsel) incurred in connection
with the collection of such overdue amount, and (ii) Raindance shall pay to West
interest on such overdue amount (for the period commencing as of the date such
overdue amount was originally required to be paid and ending on the date such
overdue amount is actually paid in full) at a rate per annum equal to the Prime
Rate in effect on the date such overdue amount was originally required to be
paid.
(c) Nothing contained in this Section 7.3 shall constitute or shall
be deemed to constitute liquidated damages for the willful breach by a Party of
the terms of this Agreement or otherwise limit the rights of the non-breaching
Party.
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7.4 TERMINATION FEE.
(a) In the event that (A) (i) either Party shall terminate this
Agreement pursuant to Section 6.1(c)(ii), or (ii) West shall terminate this
Agreement pursuant to Section 6.1(e)(i), or (iii) West shall terminate this
Agreement pursuant to Section 6.1(b) on the basis of a material breach by
Raindance of Section 4.4 or 4.9, (B) at any time after the date of this
Agreement and prior to such termination there shall have been publicly announced
an Acquisition Proposal that has not been formally withdrawn or abandoned prior
to such termination, and (C) within 12 months following such termination an
Acquisition Proposal is consummated or a definitive agreement or letter of
intent is entered into by Raindance with respect to an Acquisition Proposal,
Raindance shall pay West the Termination Fee within five business days of the
earlier of the consummation of such Acquisition Proposal or the date on which
Raindance enters into a definitive agreement, letter of intent, agreement in
principle, memorandum of understanding or other agreement with respect to such
Acquisition Proposal, by wire transfer of immediately available funds.
(b) In the event that West shall terminate this Agreement pursuant
to Section 6.1(e)(ii), Raindance shall pay to West the Termination Fee within
five business days after the date this Agreement is terminated, by wire transfer
of immediately available funds.
(c) In the event that Raindance shall terminate this Agreement
pursuant to Section 6.1(f), then Raindance shall pay West the Termination Fee on
the date this Agreement is terminated, by wire transfer of immediately available
funds.
(d) Raindance hereby acknowledges that the agreements contained in
this Section 7.4 are an integral part of the transactions contemplated by this
Agreement and that, without these agreements, West would not enter into this
Agreement. In the event that Raindance fails to pay when due any amount payable
under this Section 7.4, then (i) Raindance shall reimburse West for all costs
and expenses (including disbursements and reasonable fees of counsel) incurred
in connection with the collection of such overdue amount, and (ii) Raindance
shall pay to West interest on such overdue amount (for the period commencing as
of the date such overdue amount was originally required to be paid and ending on
the date such overdue amount is actually paid in full) at a rate per annum equal
to the Prime Rate in effect on the date such overdue amount was originally
required to be paid.
7.5 ENTIRE AGREEMENT. Except as otherwise expressly provided herein, this
Agreement (including the Disclosure Letters and Exhibits) constitutes the entire
agreement between the Parties with respect to the transactions contemplated
hereunder and supersedes all prior arrangements or understandings with respect
thereto, written or oral, other than the Confidentiality Agreement, which shall
remain in effect. Nothing in this Agreement expressed or implied, is intended to
confer upon any Person, other than the Parties or their respective successors,
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement except as expressly set forth in Section 4.12.
7.6 AMENDMENTS. Before the Effective Time, this Agreement may be amended
by a subsequent writing signed by each of the Parties, whether before or after
the Raindance Stockholder Approval has been obtained, except to the extent that
any such amendment would violate applicable Law or would require the approval of
the stockholders of Raindance, unless such required approval is obtained.
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7.7 WAIVERS.
(a) Prior to or at the Effective Time, either Party shall have the
right to waive any Default in the performance of any term of this Agreement by
the other Party, to waive or extend the time for the compliance or fulfillment
by the other Party of any and all of such other Party's obligations under this
Agreement, and to waive any or all of the conditions precedent to its
obligations under this Agreement, except any condition which, if not satisfied,
would result in the violation of any Law. No waiver by a Party shall be
effective unless in writing signed by a duly authorized officer of such Party.
(b) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
7.8 ASSIGNMENT. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of each other party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective successors and assigns.
7.9 NOTICES. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission, by registered or certified mail, postage pre-paid, or
by courier or overnight carrier, to the Persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
Raindance: Raindance Communications, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (___) ___-____
Attention: Xxxxxx X. Xxxxxxxx, Xx.
Xxxxxxxxx Xxxxxxxxxx
Copy to Counsel (which
shall not constitute notice): Xxxxxx Godward LLP
000 Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx Xxxxx
West: West Corporation
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Telecopy Number: (___) ___-____
Attention: Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
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Copy to Counsel (which
shall not constitute notice): Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
7.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware, without regard to any
applicable principles of conflicts of Laws that would result in the application
of the law of another jurisdiction.
7.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. The exchange of copies of
this Agreement and of signature pages by facsimile or electronic transmission
shall constitute effective execution and delivery of this Agreement as to the
parties and may be used in lieu of the original Agreement for all purposes.
Signatures of the parties transmitted by facsimile or electronic transmission
shall be deemed to be their original signatures for all purposes.
7.12 CAPTIONS. The captions contained in this Agreement are for reference
purposes only and are not part of this Agreement.
7.13 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any Party, whether under
any rule of construction or otherwise. No Party to this Agreement shall be
considered the draftsman. The Parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all Parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of the
Parties.
7.14 SEVERABILITY. If any term or provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of such
provision to Persons or circumstances other than those as to which it has been
held invalid or unenforceable, shall remain in full force and effect and in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any Party. Upon such determination, the Parties and
Merger Sub shall negotiate in good faith in an effort to agree upon a suitable
and equitable substitute provision to effect the original intent of the Parties.
If any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to
be executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
RAINDANCE COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Chief Executive Officer
WEST CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
ROCKIES ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
