AGREEMENT AND PLAN OF MERGER
BY AND AMONG
PERKINELMER, INC.,
PABLO ACQUISITION CORP.
AND
PACKARD BIOSCIENCE COMPANY
DATED AS OF JULY 13, 2001
ARTICLE I THE MERGER........................................................1
1.1 Effective Time of the Merger..........................................1
1.2 Closing...............................................................2
1.3 Effects of the Merger.................................................2
1.4 Directors and Officers................................................2
ARTICLE II CONVERSION OF SECURITIES.........................................2
2.1 Conversion of Capital Stock...........................................2
2.2 Exchange of Certificates..............................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................7
3.1 Organization, Standing and Power; Subsidiaries........................7
3.2 Capitalization........................................................8
3.3 Authority; No Conflict; Required Filings and Consents................11
3.4 SEC Filings; Financial Statements; Information Provided..............12
3.5 No Undisclosed Liabilities...........................................14
3.6 Absence of Certain Changes or Events.................................15
3.7 Taxes................................................................15
3.8 Owned and Leased Real Properties.....................................16
3.9 Intellectual Property................................................17
3.10 Agreements, Contracts and Commitments...............................18
3.11 Litigation..........................................................19
3.12 Environmental Matters...............................................19
3.13 Employee Benefit Plans..............................................22
3.14 Compliance With Laws................................................24
3.15 Permits.............................................................25
3.16 Labor Matters.......................................................25
3.17 Insurance...........................................................25
3.18 Warranty............................................................25
3.19 Customers and Suppliers.............................................25
3.20 No Existing Discussions.............................................26
3.21 Opinion of Financial Advisor........................................26
3.22 Section 203 of the DGCL Not Applicable..............................26
3.23 Brokers.............................................................26
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER AND THE TRANSITORY
SUBSIDIARY....................................................26
4.1 Organization, Standing and Power.....................................27
4.2 Capitalization.......................................................27
4.3 Authority; No Conflict; Required Filings and Consents................28
4.4 SEC Filings; Financial Statements; Information Provided..............29
4.5 No Undisclosed Liabilities...........................................31
4.6 Absence of Certain Changes or Events.................................31
4.7 Tax Matters..........................................................31
4.8 Litigation...........................................................31
4.9 Intellectual Property................................................31
4.10 Agreements, Contracts and Commitments...............................32
4.11 Environmental Matters...............................................32
4.12 Compliance With Laws................................................32
4.13 Permits.............................................................32
4.14 Operations of the Transitory Subsidiary.............................32
ARTICLE V CONDUCT OF BUSINESS.............................................33
5.1 Covenants of the Company............................................33
5.2 Covenants of the Buyer..............................................36
5.3 Confidentiality.....................................................36
ARTICLE VI ADDITIONAL AGREEMENTS..........................................37
6.1 No Solicitation.....................................................37
6.2 Joint Proxy Statement/Prospectus; Registration Statement............39
6.3 Nasdaq Quotation....................................................40
6.4 Access to Information...............................................40
6.5 Stockholders Meetings...............................................41
6.6 [Intentionally Omitted].............................................42
6.7 Legal Conditions to the Merger......................................42
6.8 Public Disclosure...................................................45
6.9 Reorganization......................................................45
6.10 Affiliate Agreements................................................45
6.11 NYSE Listing........................................................45
6.12 Employee Matters....................................................45
6.13 Stockholder Litigation..............................................48
6.14 Representation on Buyer Board.......................................48
6.15 Indemnification.....................................................48
6.16 Notification of Certain Matters.....................................48
6.17 Exemption from Liability Under Section 16(b)........................49
6.18 Termination of 401(k) Plan..........................................49
ARTICLE VII CONDITIONS TO MERGER..........................................50
7.1 Conditions to Each Party's Obligation To Effect the Merger..........50
7.2 Additional Conditions to Obligations of the Buyer and the
Transitory Subsidiary.............................................50
7.3 Additional Conditions to Obligations of the Company.................52
ARTICLE VIII TERMINATION AND AMENDMENT.....................................53
8.1 Termination.........................................................53
8.2 Effect of Termination...............................................55
8.3 Fees and Expenses...................................................55
8.4 Amendment...........................................................58
8.5 Extension; Waiver...................................................58
ARTICLE IX MISCELLANEOUS...................................................58
9.1 Nonsurvival of Representations and Warranties........................58
9.2 Notices..............................................................58
9.3 Entire Agreement.....................................................59
9.4 No Third Party Beneficiaries.........................................59
9.5 Assignment...........................................................59
9.6 Severability.........................................................60
9.7 Counterparts and Signature...........................................60
9.8 Interpretation.......................................................60
9.9 Governing Law........................................................61
9.10 Submission to Jurisdiction..........................................61
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9.11 Remedies............................................................61
9.12 WAIVER OF JURY TRIAL................................................62
Exhibit A Form of Stockholder's Agreement
Exhibit B Persons Subject to Voting Agreements
Exhibit C Form of Voting Agreement
Exhibit D Form of Affiliate Agreement
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TABLE OF DEFINED TERMS
Reference in
Terms Agreement
----- ------------
Acquisition Proposal Section 6.1(f)
Affiliate Section 3.2(d)
Affiliate Agreement Section 6.10
Agreement Preamble
Alternative Acquisition Agreement Section 6.1(b)
Antitrust Laws Section 6.7(b)
Antitrust Order Section 6.7(b)
Buyer Preamble
Buyer Balance Sheet Section 4.4(b)
Buyer Board Section 4.3(a)
Buyer Common Stock Section 2.1(c)
Buyer Disclosure Schedule Article IV
Buyer Intellectual Property Section 4.9
Buyer Material Adverse Effect Section 4.1
Buyer Permits Section 4.13
Buyer Preferred Stock Section 4.2(a)
Buyer SEC Reports Section 4.4(a)
Buyer Stockholders Meeting Section 3.4(c)
Buyer Voting Proposal Section 6.5(b)
Certificate of Merger Section 1.1
Certificates Section 2.2(b)
Closing Section 1.2
Closing Date Section 1.2
Code Recitals
Company Preamble
Company Balance Sheet Section 3.4(b)
Company Board Section 3.3(a)
Company Common Stock Section 2.1(b)
Company Disclosure Schedule Article III
Company Employee Plans Section 3.13(a)
Company Employees Section 6.12(d)
Company Insiders Section 6.17(c)
Company Intellectual Property Section 3.9(a)
Company Leases Section 3.8(c)
Company Material Adverse Effect Section 3.1(a)
Company Material Contracts Section 3.10(a)
Company Permits Section 3.15
Company Preferred Stock Section 3.2(a)
Company Rights Section 3.2(b)
Company SEC Reports Section 3.4(a)
Company Stock Options Section 3.2(b)
Company Stock Plans Section 3.2(b)
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Reference in
Terms Agreement
----- ------------
Company Stockholder Approval Section 3.3(a)
Company Stockholders Meeting Section 3.4(c)
Company Voting Proposal Section 3.3(a)
Confidentiality Agreement Section 5.3
Constituent Corporations Section 1.3
Contamination Section 3.12(c)
DGCL Recitals
Divestiture Section 6.7(c)
XXXXX Section 3.4(a)
Effective Time Section 1.1
Employee Benefit Plan Section 3.13(a)
Environmental Law Section 3.12(b)
ERISA Section 3.13(a)
ERISA Affiliate Section 3.13(a)
ESPP Section 6.12(a)
Exchange Act Section 3.3(c)
Exchange Agent Section 2.2(a)
Exchange Fund Section 2.2(a)
Exchange Ratio Section 2.1(c)
GAAP Section 3.4(b)
Governmental Entity Section 3.3(c)
Hazardous Substance Section 3.12(e)
HSR Act Section 3.3(c)
indebtedness Section 3.5(b)
Indemnified Parties Section 6.15(a)
Insurance Policies Section 3.17
Intellectual Property Section 3.9(a)
Joint Proxy Statement/Prospectus Section 3.4(c)
Merger Recitals
Merger Consideration Section 2.1(c)
New Plans Section 6.12(e)
NYSE Section 2.2(e)
Old Plans Section 6.12(e)
Outside Date Section 8.1(b)
Real Estate Section 3.8(a)
Registration Statement Section 3.4(c)
Regulation MA Filing Section 3.4(c)
Release Section 3.12(d)
Representatives Section 6.1(a)
Rule 145 Affiliate Section 2.2(j)
SEC Section 3.3(c)
Section 16 Information Section 6.17(b)
Securities Act Section 3.3(c)
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Terms Reference in Agreement
----- ----------------------
Significant Subsidiary Section 3.1(b)
Specified Time Section 6.1(a)
Stockholder Designee Section 6.14
Stockholder's Agreement Recitals
Subsidiary Section 3.1(b)
Superior Proposal Section 6.1(f)
Surviving Corporation Section 1.3
Taxes Section 3.7(b)
Tax Returns Section 3.7(b)
Transitory Subsidiary Recitals
Voting Agreements Recitals
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of July 13,
2001, is by and among PerkinElmer, Inc., a Massachusetts corporation (the
"Buyer"), Pablo Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of the Buyer (the "Transitory Subsidiary"), and Packard BioScience
Company, a Delaware corporation (the "Company").
WHEREAS, the boards of directors of the Buyer and the Company deem it
advisable and in the best interests of each corporation and their respective
stockholders that the Buyer acquire the Company;
WHEREAS, the acquisition of the Company shall be effected through a merger
(the "Merger") of the Transitory Subsidiary with and into the Company in
accordance with the terms of this Agreement and the General Corporation Law of
the State of Delaware (the "DGCL"), as a result of which the Company shall
become a wholly owned subsidiary of the Buyer;
WHEREAS, concurrently with the execution and delivery of this Agreement
and as a condition and inducement to the Buyer's willingness to enter into this
Agreement, (i) Stonington Capital Appreciation 1994 Fund, L.P. has entered into
a Stockholder's Agreement, dated as of the date of this Agreement, in the form
attached hereto as EXHIBIT A (the "Stockholder's Agreement") and (ii) the
individuals and entities listed in EXHIBIT B hereto have each entered into
Voting Agreements, in the form attached hereto as EXHIBIT C (the "Voting
Agreements"), pursuant to which, among other things, such stockholders have
agreed to give the Buyer a proxy to vote all of the shares of capital stock of
the Company that such stockholders own in favor of the Merger; and
WHEREAS, for United States federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
Buyer, the Transitory Subsidiary and the Company agree as follows:
ARTICLE I
THE MERGER
1.1 EFFECTIVE TIME OF THE MERGER. Subject to the provisions of this
Agreement, prior to the Closing, the Buyer shall prepare, and on the Closing
Date or as soon as practicable thereafter the Buyer shall cause to be filed with
the Secretary of State of the State of Delaware, a certificate of merger (the
"Certificate of Merger") in such form as is required by, and executed by the
Surviving Corporation in accordance with, the relevant provisions of the DGCL
and shall make all other filings or recordings required under the DGCL. The
Merger shall become effective upon the filing of the Certificate of Merger with
the Secretary of State of the State of
Delaware or at such later time as is established by the Buyer and the Company
and set forth in the Certificate of Merger (the "Effective Time").
1.2 CLOSING. The closing of the Merger (the "Closing") shall take place at
10:00 a.m., Boston time, on a date to be specified by the Buyer and the Company
(the "Closing Date"), which shall be no later than the second business day after
satisfaction or waiver of the conditions set forth in Article VII (other than
delivery of items to be delivered at the Closing and other than satisfaction of
those conditions that by their nature are to be satisfied at the Closing, it
being understood that the occurrence of the Closing shall remain subject to the
delivery of such items and the satisfaction or waiver of such conditions at the
Closing), at the offices of Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, unless another date, place or time is agreed to in writing by the
Buyer and the Company.
1.3 EFFECTS OF THE MERGER. At the Effective Time (i) the separate existence
of the Transitory Subsidiary shall cease and the Transitory Subsidiary shall be
merged with and into the Company (the Transitory Subsidiary and the Company are
sometimes referred to herein as the "Constituent Corporations" and the Company
following the Merger is sometimes referred to herein as the "Surviving
Corporation"), (ii) the Certificate of Incorporation of the Company as in effect
on the date of this Agreement shall be amended so that Article FOURTH of such
Certificate of Incorporation reads in its entirety as follows: "The total number
of shares of all classes of stock which the Corporation shall have authority to
issue is 1,000, all of which shall consist of common stock, $.01 par value per
share," and, as so amended, such Certificate of Incorporation shall be the
Certificate of Incorporation of the Surviving Corporation, until further amended
in accordance with the DGCL and (iii) the By-laws of the Transitory Subsidiary
as in effect immediately prior to the Effective Time shall be amended to change
all references to the name of the Transitory Subsidiary to refer to the name of
the Company, and, as so amended, such By-laws shall be the By-laws of the
Surviving Corporation, until further amended in accordance with the DGCL. The
Merger shall have the effects set forth in Section 259 of the DGCL.
1.4 DIRECTORS AND OFFICERS. The directors and officers of the Transitory
Subsidiary immediately prior to the Effective Time shall be the initial
directors and officers of the Surviving Corporation, each to hold office in
accordance with the Certificate of Incorporation and By-laws of the Surviving
Corporation.
ARTICLE II
CONVERSION OF SECURITIES
2.1 CONVERSION OF CAPITAL STOCK. As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any shares of the
capital stock of the Company or capital stock of the Transitory Subsidiary:
(a) CAPITAL STOCK OF THE TRANSITORY SUBSIDIARY. Each share of the common
stock of the Transitory Subsidiary issued and outstanding immediately prior to
the Effective Time shall
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be converted into and become one fully paid and nonassessable share of common
stock, $.01 par value per share, of the Surviving Corporation.
(b) CANCELLATION OF TREASURY STOCK AND BUYER-OWNED STOCK. All shares of
common stock, $.002 par value per share, of the Company ("Company Common Stock")
that areowned by the Company as treasury stock or by any wholly owned Subsidiary
of the Company and any shares of Company Common Stock owned by the Buyer, the
Transitory Subsidiary or any other wholly owned Subsidiary of the Buyer
immediately prior to the Effective Time shall be cancelled and shall cease to
exist and no stock of the Buyer or other consideration shall be delivered in
exchange therefor.
(c) CONVERSION OF COMPANY COMMON STOCK. Subject to Section 2.2, each
share of Company Common Stock (other than shares to be cancelled in accordance
with Section 2.1(b)) issued and outstanding immediately prior to the Effective
Time shall be automatically converted into the right to receive 0.311 shares
(the "Exchange Ratio") of common stock, $1.00 par value per share, of the Buyer
("Buyer Common Stock") upon surrender of the certificate representing such share
of Company Common Stock in the manner provided in Section 2.2. The Exchange
Ratio is sometimes referred to as the "Merger Consideration." As of the
Effective Time, all such shares of Company Common Stock shall no longer be
outstanding and shall automatically be cancelled and shall cease to exist, and
each holder of a certificate representing any such shares of Company Common
Stock shall cease to have any rights with respect thereto, except the right to
receive the Merger Consideration pursuant to this Section 2.1(c) and any cash in
lieu of fractional shares of Buyer Common Stock to be issued or paid in
consideration therefor upon surrender of such certificate in accordance with
Section 2.2, without interest.
(d) ADJUSTMENTS TO EXCHANGE RATIO. In the event of any reclassification,
stock split, reverse split, stock dividend (including any dividend or
distribution of securities convertible into Buyer Common Stock or Company Common
Stock, as the case may be), reorganization, recapitalization or other like
change with respect to Buyer Common Stock or Company Common Stock, as the case
may be, occurring (or for which a record date is established) after the date
hereof and prior to the Effective Time, the Exchange Ratio shall be
proportionately adjusted to reflect fully such event.
(e) UNVESTED STOCK. At the Effective Time, any Merger Consideration issued
or paid in accordance with Section 2.1(c) with respect to any unvested shares of
Company Common Stock awarded to employees, directors or consultants pursuant to
any of the Company's plans or arrangements and outstanding immediately prior to
the Effective Time shall remain subject to the same terms, restrictions and
vesting schedule as in effect immediately prior to the Effective Time, except to
the extent by their terms such unvested shares of Company Common Stock vest at
the Effective Time. The Company shall not take or permit any action which would
accelerate vesting of any unvested shares, except to the extent required by
their terms as in effect on the date hereof. Copies of the relevant agreements
governing such shares and the vesting thereof have been made available to the
Buyer. All outstanding rights which the Company may hold immediately prior to
the Effective Time to repurchase unvested shares of Company Common
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Stock shall be assigned to the Buyer in the Merger and shall thereafter be
exercisable by the Buyer upon the same terms and conditions in effect
immediately prior to the Effective Time, except that the shares purchasable
pursuant to such rights and the purchase price payable per share shall be
appropriately adjusted to reflect the Exchange Ratio. The Company shall take all
steps necessary to cause the foregoing provisions of this Section 2.1(e) to
occur.
(f) TREATMENT OF COMPANY STOCK OPTIONS. Following the Effective Time,
Company Stock Options shall be treated in the manner set forth in Section 6.12.
2.2 EXCHANGE OF CERTIFICATES. The procedures for exchanging outstanding
shares of Company Common Stock for Merger Consideration pursuant to the Merger
are as follows:
(a) EXCHANGE AGENT. As of the Effective Time, the Buyer shall deposit
with a bank or trust company designated by the Buyer and reasonably acceptable
to the Company (the "Exchange Agent"), for the benefit of the holders of shares
of the Company Common Stock, for exchange in accordance with this Section 2.2,
through the Exchange Agent, (i) certificates representing that number of whole
shares of Buyer Common Stock equal to the aggregate number of shares of Buyer
Common Stock issuable pursuant to Section 2.1(c), (ii) cash in an amount
sufficient to make payments for fractional shares required pursuant to Section
2.2(e) and (iii) any dividends or distributions to which holders of shares of
Company Common Stock may be entitled pursuant to Section 2.2(c). The shares of
Buyer Common Stock deposited with the Exchange Agent pursuant to clause (i)
above, together with any dividends or distributions with respect thereto with a
record date after the Effective Time, and the cash deposited pursuant to clause
(ii) above being hereinafter referred to as the "Exchange Fund."
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time, the Exchange Agent shall mail to each holder of record of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of the Company Common Stock (the "Certificates")
whose shares were converted pursuant to Section 2.1 into the right to receive
Merger Consideration (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as the Buyer may reasonably specify)
and (ii) instructions for effecting the surrender of the Certificates in
exchange for the Merger Consideration (plus cash in lieu of fractional shares,
if any, of Buyer Common Stock and any dividends or distributions as provided
below). Upon surrender of a Certificate for cancellation to the Exchange Agent
or to such other agent or agents as may be appointed by the Buyer, together with
such letter of transmittal, duly executed, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such Certificate
shall be entitled to receive in exchange therefor (A) a certificate representing
that number of whole shares of Buyer Common Stock which such holder has the
right to receive pursuant to Section 2.1(c), (B) cash in an amount sufficient to
make payments for fractional shares pursuant to the provisions of Section 2.2(e)
and (C) any dividends or distributions pursuant to the provisions of Section
2.2(c), and the Certificate so surrendered shall immediately be cancelled. In
the event of a transfer of ownership of Company Common Stock which is not
registered in the transfer records of the Company, (x) a certificate
representing the proper
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number of shares of Buyer Common Stock issuable pursuant to Section 2.1(c), (y)
the proper amount of cash in lieu of fractional shares pursuant to Section
2.2(e) and (z) any dividends or distributions pursuant to Section 2.2(c) may be
issued or paid to a person other than the person in whose name the Certificate
so surrendered is registered, if such Certificate is presented to the Exchange
Agent, accompanied by all documents required to evidence and effect such
transfer and by evidence that any applicable stock transfer taxes have been
paid. Until surrendered as contemplated by this Section 2.2, each Certificate
shall be deemed at any time after the Effective Time to represent only the right
to receive upon such surrender (1) the Merger Consideration issuable or payable
pursuant to Section 2.1(c), (2) cash in lieu of fractional shares pursuant to
Section 2.2(e) and (3) any dividends or distributions pursuant to Section 2.2(c)
as contemplated by this Section 2.2.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends or
other distributions declared or made after the Effective Time with respect to
Buyer Common Stock with a record date after the Effective Time shall be paid to
the holder of any unsurrendered Certificate and no cash payment in lieu of
fractional shares shall be paid to any such holder pursuant to Section 2.2(e)
until the holder of record of such Certificate shall surrender such Certificate.
Subject to the effect of applicable laws, following surrender of any such
Certificate, there shall be issued and paid to the record holder of the
Certificate, (i) certificates representing whole shares of Buyer Common Stock
issued in exchange therefor, (ii) at the time of such surrender, the amount of
any cash payable in lieu of a fractional share of Buyer Common Stock to which
such holder is entitled pursuant to Section 2.2(e) and the amount of dividends
or other distributions with a record date after the Effective Time previously
paid with respect to such whole shares of Buyer Common Stock, without interest
and (iii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time but prior to surrender
and a payment date subsequent to surrender payable with respect to such whole
shares of Buyer Common Stock.
(d) NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. All Merger
Consideration issued and paid upon the surrender for exchange of Certificates in
accordance with the terms hereof (including any cash or dividends or other
distributions paid pursuant to Sections 2.2(c) or 2.2(e)) shall be deemed to
have been issued (and paid) in full satisfaction of all rights pertaining to
such shares of Company Common Stock, and from and after the Effective Time there
shall be no further registration of transfers on the stock transfer books of the
Surviving Corporation of the shares of Company Common Stock which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation or the Exchange
Agent for any reason, they shall be cancelled and exchanged as provided in this
Article II.
(e) NO FRACTIONAL SHARES. No certificate or scrip representing fractional
shares of Buyer Common Stock shall be issued upon the surrender for exchange of
Certificates, and such fractional share interests shall not entitle the owner
thereof to vote or to any other rights of a stockholder of the Buyer.
Notwithstanding any other provision of this Agreement, each holder of shares of
Company Common Stock converted pursuant to the Merger who would otherwise have
been entitled to receive a fraction of a share of Buyer Common Stock (after
taking into
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account all Certificates delivered by such holder) shall receive, in lieu
thereof, cash (without interest) in an amount equal to such fractional part of a
share of Buyer Common Stock multiplied by the weighted average of the per share
selling prices of the Buyer Common Stock on the New York Stock Exchange ("NYSE")
during the ten consecutive trading days ending on the last trading day prior to
the Effective Time.
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund which
remains undistributed to the holders of Company Common Stock for 180 days after
the Effective Time shall be delivered to the Buyer, upon demand, and any holder
of Company Common Stock who has not previously complied with this Section 2.2
shall thereafter look only to the Buyer, as
a general unsecured creditor, for payment of its claim for Merger Consideration,
any cash in lieu of fractional shares of Buyer Common Stock issued pursuant to
Section 2.2(e) and any dividends or distributions issued pursuant to Section
2.2(c).
(g) NO LIABILITY. To the extent permitted by applicable law, none of the
Buyer, the Transitory Subsidiary, the Company, the Surviving Corporation or the
Exchange Agent shall be liable to any holder of shares of Company Common Stock
or Buyer Common Stock or to any other person for such shares of Buyer Common
Stock (or dividends or distributions with respect thereto) delivered in good
faith to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any Certificate shall not have been surrendered prior
to one year after the Effective Time (or immediately prior to such earlier date
on which any Merger Consideration, and any cash in lieu of fractional shares
payable to the holder of such Certificate pursuant to Section 2.2(e) or any
dividends or distributions payable to the holder of such Certificate pursuant to
Section 2.2(c) would otherwise escheat to or become the property of any
Governmental Entity), all such Merger Consideration or cash in lieu of
fractional shares, dividends or distributions in respect of such Certificate
shall, to the extent permitted by applicable law, become the property of the
Buyer, free and clear of all claims or interest of any person previously
entitled thereto.
(h) WITHHOLDING RIGHTS. Each of the Buyer and the Surviving Corporation
shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares of Company Common
Stock such amounts as it reasonably determines that it is required to deduct and
withhold with respect to the making of such payment under the Code, or any other
applicable provision of law. To the extent that amounts are so withheld by the
Surviving Corporation or the Buyer, as the case may be, and timely paid to the
applicable Governmental Entity, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the shares of
Company Common Stock in respect of which such deduction and withholding was made
by the Surviving Corporation or the Buyer, as the case may be.
(i) LOST CERTIFICATES. 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
Surviving Corporation, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, the Exchange Agent
shall
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issue in exchange for such lost, stolen or destroyed Certificate the Merger
Consideration, any cash in lieu of fractional shares, and unpaid dividends and
distributions on shares of Buyer Common Stock deliverable in respect thereof
pursuant to this Agreement.
(j) RULE 145 AFFILIATES. Notwithstanding anything herein to the contrary,
Certificates surrendered for exchange by any affiliate of the Company (within
the meaning of Rule 145 promulgated under the Securities Act) (each such person,
a "Rule 145 Affiliate") shall not be exchanged until the Buyer has received an
Affiliate Agreement from such Rule 145 Affiliate.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Buyer and the Transitory
Subsidiary that the statements contained in this Article III are true and
correct, except as expressly set forth herein or in the disclosure schedule
delivered by the Company to the Buyer and the Transitory Subsidiary on or before
the date of this Agreement (the "Company Disclosure Schedule"). The Company
Disclosure Schedule shall be arranged in paragraphs corresponding to the
numbered and lettered paragraphs contained in this Article III and the
disclosure in any paragraph shall qualify (1) the corresponding paragraph in
this Article III and (2) such other paragraphs in this Article III only to the
extent that it is reasonably apparent from a reading of such disclosure that it
also qualifies or applies to such other paragraphs.
3.1 ORGANIZATION, STANDING AND POWER; SUBSIDIARIES.
(a) Each of the Company and its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, has all requisite corporate power and
authority to own, lease and operate its properties and assets and to carry on
its business and is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the character of its properties
owned, operated or leased or the nature of its activities makes such
qualification necessary, except for such failures to be so organized, qualified
or in good standing, individually or in the aggregate, which have not resulted
in, and would not reasonably be expected to result in, a Company Material
Adverse Effect. For purposes of this Agreement, the term "Company Material
Adverse Effect" means any material adverse change, event, circumstance,
development or effect on (i) the business, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole, (ii) the
ability of the Company to consummate the transactions contemplated by this
Agreement or (iii) the ability of the Buyer to operate the business of the
Company and its Subsidiaries, taken as a whole, immediately after the Closing
(as a result of matters occurring prior to the Closing); provided, however, that
for purposes of this Agreement, (I) adverse changes in the stock price of the
Company in and of itself, as quoted on the Nasdaq National Market, (II)
conditions, events or circumstances generally adversely affecting the economies
of the countries where the Company and its Subsidiaries operate, the United
States securities markets or the life sciences industry, so long as such
conditions, events or circumstances do not
- 7 -
materially disproportionately affect the Company and its Subsidiaries, taken as
a whole, (III) conditions, events or circumstances directly arising out of or
directly attributable to (x) a material breach of this Agreement by the Buyer or
the Transitory Subsidiary, or (y) the Merger or any other transaction involving
the parties hereto contemplated by this Agreement, or (IV) conditions, events or
circumstances directly arising out of or directly attributable to the public
announcement of this Agreement or the transactions contemplated hereby, shall
not be taken into account in determining whether there has been or would be a
"Company Material Adverse Effect".
(b) Neither the Company nor any of its Significant Subsidiaries directly
or indirectly owns any equity, membership, partnership or similar interest in,
or any interest convertible into or exchangeable or exercisable for any equity,
membership, partnership or similar interest in, any corporation, partnership,
joint venture, limited liability company or other business association or
entity, whether incorporated or unincorporated. Neither the Company, nor any of
its Subsidiaries, has, since January 1, 1998, been a general partner or managing
member of any general partnership, limited partnership or other entity. Section
3.1(b) of the Company Disclosure Schedule sets forth a complete and accurate
list of all of the Company's Subsidiaries and the Company's direct or indirect
equity interest therein. As used in this Agreement, (i) the term "Subsidiary"
means, with respect to a party, any corporation, partnership, joint venture,
limited liability company or other business association or entity, whether
incorporated or unincorporated, of which (I) such party or any other Subsidiary
of such party is a general partner or a managing member (excluding partnerships,
the general partnership interests of which held by such party and/or one or more
of its Subsidiaries do not have a majority of the voting interest in such
partnership), (II) such party and/or one or more of its Subsidiaries holds
voting power to elect a majority of the board of directors or other governing
body performing similar functions, or (III) such party and/or one or more of its
Subsidiaries, directly or indirectly, owns or controls more than 50% of the
equity, membership, partnership or similar interests, and (ii) the term
"Significant Subsidiary" means a Subsidiary that would be a "significant
subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X of the SEC, as
such regulation is in effect on the date hereof, except that all references to
10% in Rule 1-02(w)(1), (2) and (3) shall be deemed to be 3% and references to
total assets shall be deemed to include all of the Company's current, long-term
and other assets.
(c) The Company has made available to the Buyer complete and accurate
copies of the Certificate of Incorporation and By-laws of the Company and the
charter, by-laws or other organizational documents of each Significant
Subsidiary of the Company.
3.2 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of 200,000,000
shares of Company Common Stock and 1,000,000 shares of preferred stock, $.01 par
value per share ("Company Preferred Stock"). The rights and privileges of each
class of the Company's capital stock are as set forth in the Company's
Certificate of Incorporation. As of July 5, 2001, (i) 68,625,560 shares of
Company Common Stock were issued or outstanding, (ii) 13,256,229 shares of
Company Common Stock were held in the treasury of the Company, (iii) no shares
of
- 8 -
Company Common Stock were held by Subsidiaries of the Company and (iv) no shares
of Company Preferred Stock were issued and outstanding. Other than pursuant to
the exercise of Company Stock Options listed on Section 3.2(b) of the Company
Disclosure Schedule, the Company has not, since July 5, 2001 through the date of
this Agreement, issued any shares of Company Common Stock or Company Preferred
Stock. Section 3.2(a) of the Company Disclosure Schedule lists all issued and
outstanding shares of Company Common Stock that constitute restricted stock or
that are otherwise subject to a repurchase or redemption right or right of first
refusal in favor of the Company; the name of the applicable stockholder, the
lapsing schedule for any such shares, including the extent to which any such
repurchase or redemption right or right of first refusal has lapsed as of the
date of this Agreement, whether (and to what extent) the lapsing will be
accelerated in any way by the transactions contemplated by this Agreement or by
termination of employment or change in position following consummation of the
Merger, and whether such holder has the sole power to vote and dispose of such
shares.
(b) Section 3.2(b) of the Company Disclosure Schedule (i) lists the number
of shares of Company Common Stock reserved for future issuance pursuant to stock
options granted and outstanding as of the date of this Agreement and the plans
under which such options were granted (collectively, the "Company Stock Plans")
and (ii) sets forth, as of July 10, 2001, a list, complete and accurate in all
material respects, of all holders of outstanding options to purchase shares of
Company Common Stock (such outstanding options, the "Company Stock Options")
under the Company Stock Plans, indicating with respect to each Company Stock
Option the number of shares of Company Common Stock subject to such Company
Stock Option, the exercise price and the expiration date thereof. Since July 10,
2001 through the date of this Agreement, the Company has not granted any Company
Stock Options. The vesting of all unvested Company Stock Options will accelerate
in full upon the Effective Time. Section 3.2(b) of the Company Disclosure
Schedule shows (A) the number of shares of Company Common Stock reserved for
future issuance pursuant to warrants or other outstanding rights to purchase
shares of Company Common Stock outstanding as of the date of this Agreement
(other than Company Stock Options) (such outstanding warrants or other rights,
the "Company Rights") and the agreement or other document under which such
Company Rights were granted and (B) sets forth a complete and accurate list of
all holders of Company Rights indicating the number and type of shares of
Company Common Stock subject to each Company Right, and the exercise price, the
date of grant and the expiration date thereof. The Company has provided to the
Buyer accurate and complete copies of (x) all Company Stock Plans and (y) the
forms of all stock option agreements evidencing all Company Stock Options and
Company Rights.
(c) Except (x) as set forth in this Section 3.2 and (y) as reserved for
future grants under Company Stock Plans, (i) there are no equity securities of
any class of the Company or any of its Subsidiaries (other than equity
securities of any such Subsidiary that are directly or indirectly owned by the
Company), or any security exchangeable into or exercisable for such equity
securities, issued, reserved for issuance or outstanding and (ii) there are no
options, warrants, equity securities, calls, rights, commitments or agreements
of any character to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound obligating the Company
or any of its Subsidiaries to issue, exchange, transfer, deliver or sell, or
cause to be issued, exchanged, transferred, delivered or sold,
- 9 -
additional shares of capital stock or other equity interests of the Company or
any of its Subsidiaries or any security or rights convertible into or
exchangeable or exercisable for any such shares or other equity interests, or
obligating the Company or any of its Subsidiaries to grant, extend, accelerate
the vesting of, otherwise modify or amend or enter into any such option,
warrant, equity security, call, right, commitment or agreement. Neither the
Company nor any of its Subsidiaries has outstanding any (A) stock appreciation
rights or phantom stock or (B) performance based rights or similar rights or
obligations.
(d) Other than the Stockholder's Agreement and the Voting Agreements,
neither the Company nor any of its Affiliates (as such term is defined in Rule
405 promulgated under the Securities Act) (an "Affiliate") is a party to or is
bound by any, and to the knowledge of the Company, there are no, agreements or
understandings with respect to the voting (including voting trusts and proxies)
or sale or transfer (including agreements imposing transfer restrictions) of any
shares of capital stock or other equity interests of the Company or any of its
Subsidiaries. Except as contemplated by this Agreement, there are no
registration rights, and there is no rights agreement, "poison pill"
anti-takeover plan or other material agreement or understanding to which the
Company or any of its Subsidiaries is a party or by which it or they are bound
with respect to any equity security of any class of the Company or any of its
Subsidiaries or with respect to any equity security, partnership interest or
similar ownership interest of any class of any of its Subsidiaries.
(e) All outstanding shares of Company Common Stock are, and all shares of
Company Common Stock subject to issuance as specified in Sections 3.2(b) and
3.2(c) above, upon issuance on the terms and conditions specified in the
instruments pursuant to which they are issuable, will be, duly authorized,
validly issued, fully paid and nonassessable and not subject to or issued in
violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
the DGCL, the Company's Certificate of Incorporation or By-laws or any agreement
to which the Company is a party or is otherwise bound. There are no obligations,
contingent or otherwise, of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of the Company Common Stock
or the capital stock of the Company or any of its Subsidiaries or to provide
funds to or make any material investment (in the form of a loan, capital
contribution or otherwise) in the Company or any Subsidiary of the Company or
any other entity, other than guarantees of bank obligations of Subsidiaries of
the Company entered into in the ordinary course of business.
(f) All of the outstanding shares of capital stock and other equity
securities or interests of each of the Company's Significant Subsidiaries are
duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights and all such shares (other than directors' qualifying shares
in the case of non-U.S. Subsidiaries, all of which the Company has the power to
cause to be transferred for no or nominal consideration to the Buyer or the
Buyer's designee) are owned, of record and beneficially, by the Company or
another Subsidiary of the Company free and clear of all security interests,
liens, claims, pledges, agreements, limitations in the Company's voting rights,
charges or other encumbrances of any nature.
- 10 -
(g) No consent of the holders of Company Stock Options is required in
connection with the actions contemplated by Section 6.12.
3.3 AUTHORITY; NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The Company has all requisite corporate power and authority to enter
into this Agreement and, subject only to the adoption of this Agreement and the
approval of the Merger (the "Company Voting Proposal") by the Company's
stockholders under the DGCL (the "Company Stockholder Approval"), to consummate
the transactions contemplated by this Agreement. Without limiting the generality
of the foregoing, the board of directors of the Company (the "Company Board"),
at a meeting duly called and held, by the unanimous vote of all directors (i)
determined that the Merger is fair and in the best interests of the Company and
its stockholders, (ii) adopted this Agreement in accordance with the provisions
of the DGCL, (iii) directed that this Agreement and the Merger be submitted to
the stockholders of the Company for their adoption and approval and resolved to
recommend that the stockholders of the Company vote in favor of the adoption of
this Agreement and the approval of the Merger and (iv) to the extent necessary,
adopted a resolution having the effect of causing the Company not to be subject
to any state takeover law (including Section 203 of the DGCL) or similar law
that might otherwise apply to the Merger and any other transactions contemplated
by this Agreement, the Stockholder's Agreement or the Voting Agreements. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement by the Company have been duly
authorized by all necessary corporate action on the part of the Company, subject
only to the required receipt of the Company Stockholder Approval. This Agreement
has been duly executed and delivered by the Company and constitutes the valid
and binding obligation of the Company, enforceable in accordance with its terms.
(b) The execution and delivery of this Agreement by the Company does not,
and the consummation by the Company of the transactions contemplated by this
Agreement will not, (i) conflict with, or result in any violation or breach of,
any provision of the Certificate of Incorporation or By-laws of the Company or
the charter, by-laws, or other organizational document of any Significant
Subsidiary of the Company, (ii) conflict with, or result in any violation or
breach of, or constitute (with or without notice or lapse of time, or both) a
default (or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any benefit) under, require a consent or waiver under,
constitute a change in control under, require the payment of a penalty under or
result in the imposition of any Lien on the Company's or any of its Subsidiary's
assets under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, license, contract or other agreement, instrument or
obligation to which the Company or any of its Subsidiaries is a party or by
which any of them or any of their properties or assets may be bound, or (iii)
subject to obtaining the Company Stockholder Approval and compliance with the
requirements specified in Section 3.3(c), conflict with or violate any permit,
concession, franchise, license, judgment, injunction, order, decree, statute,
law, ordinance, rule or regulation applicable to the Company or any of its
Subsidiaries or any of its or their properties or assets, except in the case of
clauses (ii) and (iii) of this Section 3.3(b) for any such conflicts,
violations, breaches, defaults, terminations, cancellations, accelerations or
losses as would not, individually or in the aggregate, reasonably be expected to
result in a
- 11 -
Company Material Adverse Effect. To the Company's knowledge, Section 3.3(b) of
the Company Disclosure Schedule lists all consents, waivers and approvals under
any of Company's or any of its Subsidiaries' material agreements, licenses or
leases required to be obtained in connection with the consummation of the
transactions contemplated hereby.
(c) No consent, approval, license, permit, order or authorization of, or
registration, declaration, notice or filing with, any court, arbitration
tribunal, administrative agency or commission or other governmental or
regulatory authority, agency or instrumentality, foreign or domestic (a
"Governmental Entity") is required by or with respect to the Company or any of
its Subsidiaries in connection with the execution and delivery of this Agreement
by the Company or the consummation by the Company of the transactions
contemplated by this Agreement, except for (i) the pre-merger notification
requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act") and any consents, approvals and filings required under
applicable foreign antitrust laws, (ii) the filing of the Certificate of Merger
with the Delaware Secretary of State and appropriate corresponding documents
with the Secretaries of State of other states in which the Company is qualified
as a foreign corporation to transact business, (iii) the filing of the Joint
Proxy Statement/Prospectus (as defined in Section 3.4(c)) with the Securities
and Exchange Commission (the "SEC") in accordance with the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), (iv) the filing of such reports,
schedules or materials under Section 13 or Rule 14a-12 (or other applicable
rule) of the Exchange Act and materials under Rule 165 and Rule 425 (or other
applicable rules) of the Securities Act of 1933, as amended (the "Securities
Act") and the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated hereby, (v) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable state securities laws and (vi) such other consents, licenses,
permits, orders, authorizations, filings, approvals and registrations which, if
not obtained or made, would not, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect.
(d) The affirmative vote for adoption of this Agreement by the holders
of a majority of the outstanding shares of Company Common Stock on the record
date for the Company Stockholder Meeting is the only vote of the holders of any
class or series of the Company's capital stock or other securities of the
Company necessary to adopt this Agreement and for consummation by the Company of
the other transactions contemplated by this Agreement. There are no bonds,
debentures, notes or other indebtedness of the Company having the right to vote
(or convertible into, or exchangeable for, securities having the right to vote)
on any matters on which stockholders of the Company may vote.
3.4 SEC FILINGS; FINANCIAL STATEMENTS; INFORMATION PROVIDED.
(a) The Company has filed all registration statements, forms, reports
and other documents required to be filed by the Company with the SEC since April
20, 2000, and all such registration statements, forms, reports and other
documents are available on the SEC's Electronic Data Gathering Analysis and
Retrieval System ("XXXXX"). All such registration statements, forms, reports and
other documents (including those that the Company may file after the date
- 12 -
hereof until the Closing) are referred to herein as the "Company SEC Reports."
The Company SEC Reports (i) were or will be filed on a timely basis, (ii) at the
time filed, were or will be prepared in compliance in all material respects with
the applicable requirements of the Securities Act and the Exchange Act, as the
case may be, and the rules and regulations of the SEC thereunder applicable to
such Company SEC Reports, and (iii) did not or will not at the time they were or
are filed contain any untrue statement of a material fact or omit to state a
material fact required to be stated in such Company SEC Reports or necessary in
order to make the statements in such Company SEC Reports, in the light of the
circumstances under which they were made, not misleading. No Subsidiary of the
Company is subject to the reporting requirements of Section 13 or Section 15(d)
of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each
case, any related notes and schedules) contained or to be contained in the
Company SEC Reports at the time filed (i) complied or will comply as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, (ii) were or will be
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited statements, as permitted by the SEC under the
Exchange Act and published rules and regulations of the SEC thereunder) and
(iii) fairly presented or will fairly present in accordance with GAAP the
consolidated financial position of the Company and its Subsidiaries as of the
dates thereof and the consolidated results of its operations and cash flows for
the periods indicated, consistent with the books and records of the Company and
its Subsidiaries, except that the unaudited interim financial statements were or
are subject to normal and recurring year-end adjustments which were not or will
not be material in amount. The consolidated, unaudited balance sheet of the
Company as of March 31, 2001 is referred to herein as the "Company Balance
Sheet".
(c) The information related to the Company to be supplied by or on behalf
of the Company for inclusion or incorporation by reference in the registration
statement on Form S-4 to be filed by the Buyer pursuant to which shares of Buyer
Common Stock issued in connection with the Merger shall be registered under the
Securities Act (the "Registration Statement"), or for inclusion in any filing
pursuant to Rule 165 or Rule 425 (or other applicable rules) under the
Securities Act or Rule 14a-12 (or other applicable rules) under the Exchange Act
(each a "Regulation MA Filing"), shall not at the time the Registration
Statement or any Regulation MA Filing is filed with the SEC, at any time it is
amended or supplemented (provided that the filing of such amendment or
supplement has been approved by the Company, which approval shall not be
unreasonably withheld or delayed), or at the time the Registration Statement is
declared effective by the SEC 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 not misleading. The information related to
the Company to be supplied by the Company for inclusion in the joint proxy
statement/prospectus to be sent to the stockholders of the Company and the Buyer
in connection with the meeting of the Company's stockholders to consider the
adoption of this Agreement and the Merger (the "Company Stockholders Meeting")
and in connection with the meeting of the Buyer's stockholders (the "Buyer
Stockholders Meeting") to consider the issuance of shares of Buyer Common Stock
pursuant to the Merger (the "Joint
- 13 -
Proxy Statement/Prospectus") shall not, on the date the Joint Proxy
Statement/Prospectus is first mailed to stockholders of the Company or the
Buyer, at the time of the Company Stockholders Meeting and the Buyer
Stockholders Meeting or at the Effective Time, contain any statement which, at
such time and in light of the circumstances under which it shall be made, is
false or misleading with respect to any material fact, or omit to state any
material fact necessary in order to make the statements made in the Joint Proxy
Statement/Prospectus not false or misleading; or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the Company Stockholders Meeting or the Buyer
Stockholders Meeting which has become false or misleading. If at any time prior
to the Effective Time any event relating to the Company or any of its
Affiliates, officers or directors should be discovered by the Company which
should be set forth in an amendment to the Registration Statement or a
supplement to the Joint Proxy Statement/Prospectus, the Company shall promptly
inform the Buyer.
3.5 NO UNDISCLOSED LIABILITIES.
(a) Except as disclosed in the Company SEC Reports filed prior to the
date of this Agreement, and except for normal and recurring liabilities incurred
since the date of the Company Balance Sheet in the ordinary course of business,
the Company and its Subsidiaries do not have any liabilities, either accrued,
contingent or otherwise (whether or not required to be reflected in financial
statements in accordance with GAAP), and whether due or to become due, except
for any liabilities which would not, individually or in the aggregate,
reasonably be expected to result in a Company Material Adverse Effect.
(b) Section 3.5(b) of the Company Disclosure Schedule sets forth a
complete and accurate list of all loan or credit agreements, notes, bonds,
mortgages, indentures and other agreements and instruments pursuant to which any
indebtedness of the Company or any of its Subsidiaries in an aggregate principal
amount in excess of $500,000 is outstanding or may be incurred and the
respective principal amounts outstanding thereunder as of the date of this
Agreement. For purposes of this Section 3.5(b), "indebtedness" means, with
respect to any person, without duplication, (A) all obligations of such person
for borrowed money, or with respect to deposits or advances of any kind to such
person, (B) all obligations of such person evidenced by bonds, debentures, notes
or similar instruments, (C) all obligations of such person upon which interest
charges are customarily paid, (D) all obligations of such person under
conditional sale or other title retention agreements relating to property
purchased by such person, (E) all obligations of such person issued or assumed
as the deferred purchase price of property or services (excluding obligations of
such person or creditors for raw materials, inventory, services and supplies
incurred in the ordinary course of business), (F) all capitalized lease
obligations of such person, (G) all obligations of others secured by any lien on
property or assets owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (H) all obligations of such
person under interest rate or currency hedging transactions (valued at the
termination value thereof), (I) all letters of credit issued for the account of
such person, and (J) all guarantees and arrangements having the economic effect
of a guarantee by such person of any indebtedness of any other person. All of
the outstanding indebtedness of the type described in this Section 3.5(b) of the
Company or any of its Subsidiaries may be prepaid by the Company or
- 14 -
its Subsidiary at any time without the consent or approval of, or prior notice
to, any other person, and without payment of any premium or penalty.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the
Company SEC Reports filed prior to the date of this Agreement, since December
31, 2000, the Company and its Subsidiaries have conducted their respective
businesses only in the ordinary course of business and, since such date, there
has not been: (i) any change, event, circumstance, development or effect that,
individually or in the aggregate, has resulted, or would reasonably be expected
to result in, a Company Material Adverse Effect; (ii) any material change by the
Company or any of its Subsidiaries in its accounting methods not required
pursuant to GAAP; or (iii) any other action or event that would have required
the consent of the Buyer pursuant to Section 5.1 of this Agreement (other than
paragraphs (b), (h) and (i) of Section 5.1) had such action or event occurred
after the date of this Agreement.
3.7 TAXES.
(a) Except as would not, individually or in the aggregate, reasonably
be expected to result in a Company Material Adverse Effect:
(i) the Company and each of its Subsidiaries has timely filed all
Tax Returns that it was required to file (taking into account applicable
extensions), and all such Tax Returns were correct and complete; the Company and
each of its Subsidiaries has paid on a timely basis all Taxes that were due
(whether or not shown) on any such Tax Returns; the unpaid Taxes of the Company
and its Subsidiaries for Tax periods through the date of the Company Balance
Sheet do not exceed the accruals and reserves for Taxes set forth on the Company
Balance Sheet exclusive of any accruals or reserves for "deferred taxes" or
similar items that reflect timing differences between Tax and financial
accounting principles; all Taxes attributable to periods commencing after the
date of the Company Balance Sheet have arisen (A) in the ordinary course of
business and are consistent with regard to type and amount with Taxes incurred
in comparable historical periods or (B) pursuant to transactions to which the
Buyer has consented in writing pursuant to Section 5.1 hereof; all Taxes that
the Company or any of its Subsidiaries is or was required by law to withhold or
collect have been duly withheld or collected and, to the extent required, have
been paid to the proper Governmental Entity;
(ii) the federal income Tax Returns of the Company and each of its
Subsidiaries have been audited by the Internal Revenue Service or are closed by
the applicable statute of limitations for all taxable years through the taxable
year ended December 31, 1991; no examination or audit of any Tax Return of the
Company or any of its Subsidiaries by any Governmental Entity is currently in
progress or threatened in writing; neither the Company nor any of its
Subsidiaries has been informed in writing by any Governmental Entity that the
Governmental Entity believes that the Company or any of its Subsidiaries was
required to file any Tax Return that was not filed; neither the Company nor any
of its Subsidiaries has waived any statute of limitations with respect to Taxes
or agreed to an extension of time with respect to a Tax assessment or
deficiency;
- 15 -
(iii) neither the Company nor any of its Subsidiaries: (A) is a
"consenting corporation" within the meaning of Section 341(f) of the Code, and
none of the assets of the Company or any of its Subsidiaries is subject to an
election under Section 341(f) of the Code; (B) has been a United States real
property holding corporation within the meaning of Section 897(c)(2) of the Code
during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code;
or (C) has any actual or potential liability for any Taxes of any person (other
than the Company and its Subsidiaries) under Treasury Regulation Section
1.1502-6 (or any similar provision of law in any jurisdiction), or as a
transferee or successor, by contract, or otherwise; and
(iv) the Company has made available to the Buyer correct and complete
copies of all material income Tax Returns of the Company and its Subsidiaries
together with all related examination reports and statements of deficiency for
all periods, unless such periods are closed by the statute of limitations or
otherwise; and
(v) neither the Company nor, to the Company's knowledge, any Subsidiary
has distributed to its stockholders or security holders stock or securities of a
controlled corporation, nor has stock or securities of the Company or, to the
Company's knowledge, any Subsidiary been distributed, in a transaction to which
Section 355 of the Code applies in the two years prior to the date of this
Agreement.
(b) For purposes of this Agreement, (i) "Taxes" means all taxes,
charges, fees, levies or other similar assessments or liabilities, including
income, gross receipts, ad valorem, premium, value-added, excise, real property,
personal property, sales, use, services, transfer, withholding, employment,
payroll and franchise taxes imposed by the United States of America or any
state, local or foreign government, or any agency thereof, or other political
subdivision of the United States or any such government, and any interest,
fines, penalties, assessments or additions to tax resulting from, attributable
to or incurred in connection with any tax or any contest or dispute thereof and
(ii) "Tax Returns" means all reports, returns, declarations, statements or other
information required to be supplied to a taxing authority in connection with
Taxes.
(c) To the Company's knowledge, after consulting with its advisors,
neither the Company nor any Affiliate has taken or agreed to take any action
which would prevent the Merger from constituting a transaction qualifying as a
reorganization under Section 368(a) of the Code.
3.8 OWNED AND LEASED REAL PROPERTIES.
(a) Section 3.8(a) of the Company Disclosure Schedule sets forth a
complete and accurate list of the addresses of all real property owned by the
Company or any Subsidiary (the "Real Estate"). There is no pending or, to the
Company's knowledge, threatened condemnation or eminent domain proceeding with
respect to the Real Estate, except any such proceedings as would not,
individually or in the aggregate, reasonably be expected to result in a Company
Material Adverse Effect.
- 16 -
(b) All of the buildings, fixtures and other improvements located on the
Real Estate are in good operating condition and repair, except where the failure
to be in good operating condition and repair would not, individually or in the
aggregate, reasonably be expected to result in a Company Material Adverse
Effect.
(c) Section 3.8(c) of the Company Disclosure Schedule sets forth a
complete and accurate list of all material real property leased, subleased or
licensed by the Company or any of its Subsidiaries (collectively "Company
Leases") and the location of the premises. Neither the Company nor any of its
Subsidiaries nor, to the Company's knowledge, any other party to any Company
Lease, is in default under any Company Lease, except for such defaults as would
not, individually or in the aggregate, reasonably be expected to result in a
Company Material Adverse Effect. The Company has made available to the Buyer
complete and accurate copies of all Company Leases.
3.9 INTELLECTUAL PROPERTY.
(a) Other than with respect to software programs that are commercially
available on a general basis (except for programs and applications that are
commercially available on a general basis at a cost that exceeds $100,000 in any
one case or $250,000 in all cases in the aggregate), the Company and its
Subsidiaries own, license or otherwise possess legally enforceable rights to use
all Intellectual Property used in or necessary to the conduct of the business of
the Company and its Subsidiaries, including rights to make, exclude others from
using, reproduce, modify, adapt, create derivative works of, translate,
distribute (directly or indirectly), transmit, display, perform, license, rent,
lease, and, with respect to Intellectual Property owned by the Company, assign
and sell such Intellectual Property (the "Company Intellectual Property"),
except where the failures to own, license or have rights to use such Company
Intellectual Property would not, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect. For purposes of this
Agreement, the term "Intellectual Property" means (i) patents, trademarks,
service marks, trade names, domain names, copyrights, designs and trade secrets,
(ii) any applications for and registrations of such patents, trademarks, service
marks, trade names, domain names, copyrights and designs, (iii) processes,
formulae, methods, schematics, technology, know-how, computer software programs
and applications (except for programs and applications that are commercially
available on a general basis at a cost that does not exceed $100,000 in any one
case or $250,000 giving effect to multiple licenses to the same program) and
(iv) other tangible or intangible proprietary or confidential information and
material.
(b) The execution and delivery of this Agreement and consummation of the
Merger will not result in the breach of, or create on behalf of any third party
the right to terminate or modify, any license, sublicense or other agreement
relating to any Company Intellectual Property or any software programs that are
commercially available on a general basis, including software that is used in
the manufacture of, incorporated in, or forms a part of any product or service
sold by or expected to be sold by the Company or any of its Subsidiaries, except
for such breaches and rights to terminate or modify as would not, individually
or in the aggregate, reasonably be expected to result in a Company Material
Adverse Effect. Section
- 17 -
3.9(b) of the Company Disclosure Schedule sets forth a complete and accurate
list of the Company's issued patents, registered trademarks and material license
agreements.
(c) Except as would not, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect, (i) all patents and
registrations and applications for registered trademarks, service marks and
copyrights which are held by the Company or any of its Subsidiaries are valid
and subsisting and (ii) the Company and its Subsidiaries have taken reasonable
measures to protect the proprietary nature of the Company Intellectual Property.
To the knowledge of the Company, no other person or entity is infringing,
violating or misappropriating any of the Company Intellectual Property, except
for infringements, violations or misappropriations which would not, individually
or in the aggregate, reasonably be expected to result in a Company Material
Adverse Effect.
(d) None of the (i) products sold by the Company or any of its
Subsidiaries or (ii) business or activities conducted by the Company or any of
its Subsidiaries infringes, violates or constitutes a misappropriation of, or
infringed, violated or constituted a misappropriation of, any Intellectual
Property of any third party (including any software programs and applications
that are commercially available), except for infringements, violations or
misappropriations which would not, individually or in the aggregate, reasonably
be expected to result in a Company Material Adverse Effect. Neither the Company
nor any of its Subsidiaries has received any written (and has no knowledge of
any) complaint, claim or notice alleging any such infringement, violation or
misappropriation.
3.10 AGREEMENTS, CONTRACTS AND COMMITMENTS.
(a) There are no contracts, agreements or instruments that are
material to the business, financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole (collectively, the "Company
Material Contracts"), that have not been filed as exhibits to the Company SEC
Reports filed prior to the date of this Agreement. The Company has made
available to the Buyer complete and accurate copies of the Company Material
Contracts. Each Company Material Contract is in full force and effect and is
enforceable in accordance with its terms, except for such failures to be in full
force and effect and enforceable as would not, individually or in the aggregate,
reasonably be expected to result in a Company Material Adverse Effect. Neither
the Company nor any of its Subsidiaries nor, to the Company's knowledge, any
other party to any Company Material Contract is in violation of or in default
under (nor does there exist any condition which, upon the passage of time or the
giving of notice or both, would cause such a violation of or default under) any
Company Material Contract, except for such violations and defaults as would not,
individually or in the aggregate, reasonably be expected to result in a Company
Material Adverse Effect.
(b) Except as set forth in the Company SEC Reports filed prior to the
date of this Agreement, neither the Company nor any of its Subsidiaries has
entered into any transaction with any director, officer or other Affiliate of
the Company or any of its Subsidiaries or any transaction that would be subject
to proxy statement disclosure pursuant to Item 404 of Regulation S-K.
- 18 -
(c) Except for field of use or territorial limits on the rights granted
by third parties to the Company or its Subsidiaries set forth in the agreements
or instruments granting such rights, (i) there is no non-competition or other
similar agreement, commitment, judgment, injunction or order to which the
Company or any of its Subsidiaries is a party or subject that has or could
reasonably be expected to have the effect of prohibiting or materially impairing
the conduct of the business by the Company or any of its Subsidiaries, taken as
a whole, and (ii) neither the Company nor any of its Subsidiaries has entered
into (or is otherwise bound by) any agreement under which it is restricted, in
any material respects, from selling, licensing or otherwise distributing any of
its technology or products, or providing its services, to customers or potential
customers or any class of customers, in any geographic area, during any period
of time.
(d) To the Company's knowledge, neither the Company nor any of its
Subsidiaries is a party to any agreement under which a third party would be
entitled to receive a license or any other right to intellectual property of the
Buyer or any of the Buyer's Affiliates (other than the Company and its
Subsidiaries) as a result of the consummation of the transactions contemplated
by this Agreement.
3.11 LITIGATION. Except as disclosed in the Company SEC Reports filed prior
to the date of this Agreement, there is no (i) action, suit, proceeding, claim,
arbitration or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or (ii)
judgment, order or decree outstanding against the Company or any of its
Subsidiaries, except for (x) actions, suits, proceedings, claims, arbitrations
and investigations and (y) judgments, orders and decrees which would not,
individually or in the aggregate, reasonably be expected to result in a Company
Material Adverse Effect.
3.12 ENVIRONMENTAL MATTERS.
(a) Except as disclosed in the Company SEC Reports filed prior to the
date of this Agreement and except for such matters which would not, individually
or in the aggregate, reasonably be expected to result in a Company Material
Adverse Effect:
(i) the Company and each of its Subsidiaries have at all times
complied with, and are not currently in violation of, any applicable
Environmental Laws;
(ii) the Company and each of its Subsidiaries have all permits,
licenses and approvals required under Environmental Laws to operate and conduct
their respective businesses as currently operated and conducted;
(iii) to the Company's knowledge, there is no Contamination of or
at the properties currently owned, leased or operated by the Company or any of
its Subsidiaries (including soils, groundwater, surface water, buildings or
other structures);
(iv) to the Company's knowledge, there was no Contamination of
or at the properties formerly owned, leased or operated by the Company or any of
its Subsidiaries prior to or during the period of time such properties were
owned, leased or operated by the Company or any of its Subsidiaries;
- 19 -
(v) to the Company's knowledge, neither the Company nor any of
its Subsidiaries are subject to liability for a Release of any Hazardous
Substance or Contamination on the property of any third party;
(vi) to the Company's knowledge, neither the Company nor any of
its Subsidiaries have Released any Hazardous Substance to the environment;
(vii) to the Company's knowledge, neither the Company nor any of
its Subsidiaries has received any written (or has knowledge of any) notice,
demand, letter, claim or request for information, nor is the Company or any of
its Subsidiaries aware of any pending or threatened notice, demand, letter,
claim or request for information, alleging that the Company or any of its
Subsidiaries may be in violation of, liable under or have obligations under any
Environmental Law;
(viii) neither the Company nor any of its Subsidiaries is subject
to any written (or has any knowledge of any) orders, decrees, injunctions or
other arrangements with any Governmental Entity or is subject to any written
indemnity or other agreement with any third party relating to liabilities or
obligations under any Environmental Law or relating to Hazardous Substances;
(ix) to the Company's knowledge, there are no circumstances or
conditions involving the Company or any of its Subsidiaries that could
reasonably be expected to result in any claims, liability, obligations,
investigations, costs or restrictions on the ownership, use or transfer of any
property of the Company or any of its Subsidiaries pursuant to any Environmental
Law;
(x) to the knowledge of the Company, none of the properties
currently or formerly owned, leased or operated by the Company or any of its
Subsidiaries is listed in the National Priorities List or any other list,
schedule, log, inventory or record maintained by any federal, state, local or
foreign governmental agency with respect to sites from which there is or has
been a Release of any Hazardous Substance or any Contamination;
(xi) to the knowledge of the Company, none of the properties
currently or formerly owned, leased or operated by the Company or any of its
Subsidiaries is or was ever used as a landfill, dump or other disposal, storage,
transfer or handling area for Hazardous Substances, excepting, however, for the
routine storage and use of Hazardous Substances from time to time in the
ordinary course of business, in compliance with Environmental Laws and in
compliance with good commercial practice;
(xii) to the knowledge of the Company, there are no underground
or above ground storage tanks (whether or not currently in use), urea-
formaldehyde materials, asbestos, asbestos containing materials, polychlorinated
biphenyls (PCBs) or nuclear fuels or wastes, located on or under any of the
properties currently or formerly owned, leased or operated by the Company or any
of its Subsidiaries, and no underground tank previously located on these
properties has been removed therefrom; and
- 20 -
(xiii) there are no liens against any of the properties currently
owned, leased or operated by the Company or any of its Subsidiaries arising
under any Environmental Law.
(b) For purposes of this Agreement, "Environmental Law" means any
federal, state, local or foreign law, regulation, order, decree, permit,
authorization, opinion, common law or agency requirement of any jurisdiction
relating to: (i) the protection, investigation or restoration of the
environment, human health and safety, or natural resources, (ii) the handling,
use, storage, treatment, manufacture, transportation, presence, disposal,
release or threatened release of any Hazardous Substance or (iii) noise, odor,
wetlands, pollution, contamination or any injury or threat of injury to persons
or property.
(c) For purposes of this Agreement, "Contamination" means the presence
of, or Release on, under, from or to, any property of any Hazardous Substance,
except the routine storage and use of Hazardous Substances from time to time in
the ordinary course of business, in compliance with Environmental Laws and in
compliance with good commercial practice.
(d) For purposes of this Agreement, "Release" or "Released" means the
spilling, leaking, disposing, discharging, emitting, depositing, injecting,
leaching, escaping or any other release, however defined, and whether
intentional or unintentional, of any Hazardous Substance. The term "Release"
shall have the meaning set forth in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
(e) For purposes of this Agreement, "Hazardous Substance" means any
substance that is: (A) listed, classified, regulated or which falls within the
definition of a "hazardous substance," "hazardous waste" or "hazardous material"
pursuant to any Environmental Law; (B) any petroleum product or by-product,
asbestos-containing material, lead-containing paint, pipes or plumbing,
polychlorinated biphenyls, radioactive materials or radon; or (C) any other
substance which is the subject of regulatory action by any Governmental Entity
pursuant to any Environmental Law.
(f) The Company has made available to the Buyer complete and accurate
copies of all documents that contain any material environmental reports,
investigations, site assessments or audits relating to premises currently or
previously owned, leased or operated by the Company or any of its Subsidiaries
(whether conducted by or on behalf of the Company or any of its Subsidiaries or
a third party, and whether done at the initiative of the Company or any of its
Subsidiaries or directed by a Governmental Entity or other third party) which
were issued or conducted since January 1, 1996 and of which the Company or any
of its Subsidiaries has possession or over which the Company or any of its
Subsidiaries has control. Notwithstanding the foregoing, to the Company's
knowledge, any and all material documents relating to the facilities located in
Groningen, The Netherlands, of the nature specified in the first sentence of
this Section 3.12(f), are listed on Section 3.12(f) of the Company Disclosure
Schedule without regard to the date of preparation. A complete and accurate copy
of each such document has been made available to the Buyer.
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3.13 EMPLOYEE BENEFIT PLANS.
(a) Section 3.13(a) of the Company Disclosure Schedule sets forth a
complete and accurate list of all Employee Benefit Plans maintained, or
contributed to, by the Company or any of the Company's Subsidiaries (together,
the "Company Employee Plans"). For purposes of this Agreement, the following
terms shall have the following meanings: (i) "Employee Benefit Plan" means any
"employee pension benefit plan" (as defined in Section 3(2) of ERISA), any
"employee welfare benefit plan" (as defined in Section 3(1) of ERISA), and any
other plan, agreement or arrangement providing direct or indirect compensation,
including insurance coverage, severance benefits, disability benefits, deferred
compensation, bonuses, stock options, stock purchase, phantom stock, stock
appreciation or other forms of incentive compensation or post-retirement
compensation and all unexpired severance agreements, for the benefit of, or
relating to, any current or former employee of the Company or any of its
Subsidiaries or; (ii) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended; and (iii) "ERISA Affiliate" means any entity which is, or
at any applicable time was, a member of (1) a controlled group of corporations
(as defined in Section 414(b) of the Code), (2) a group of trades or businesses
under common control (as defined in Section 414(c) of the Code), or (3) an
affiliated service group (as defined under Section 414(m) of the Code or the
regulations under Section 414(o) of the Code), any of which includes or included
the Company or a Subsidiary.
(b) With respect to each Company Employee Plan, the Company has
furnished to the Buyer, a complete and accurate copy of (i) such Company
Employee Plan (or a written summary of any unwritten plan), (ii) the most recent
annual report (Form 5500) filed with the IRS, if any, (iii) each trust
agreement, group annuity contract and summary plan description, if any, relating
to such Company Employee Plan, (iv) the most recent financial statements for
each Company Employee Plan that is funded, (v) all personnel, payroll and
employment manuals and policies, and (vi) all employee handbooks.
(c) Each Company Employee Plan has been administered in all material
respects in accordance with ERISA, the Code and all other applicable laws and
the regulations thereunder (including without limitation Section 4980 B of the
Code, Subtitle K, Chapter 100 of the Code and Sections 601 through 608 and
Section 701 et seq. of ERISA) and in accordance with its terms and each of the
Company, the Company's Subsidiaries and their ERISA Affiliates has in all
material respects met its obligations with respect to such Company Employee Plan
and has made all required contributions thereto (or reserved such contributions
on the Company Balance Sheet). All material filings and reports as to each
Company Employee Plan required to have been submitted to the Internal Revenue
Service or to the United States Department of Labor have been timely submitted.
With respect to the Company Employee Plans, no event has occurred, and to the
knowledge of the Company, there exists no condition or set of circumstances in
connection with which the Company or any of its Subsidiaries could be subject to
any material liability under ERISA, the Code or any other applicable law.
(d) With respect to the Company Employee Plans, there are no material
benefit obligations for which contributions have not been made or properly
accrued and there are no material benefit obligations which have not been
accounted for by reserves, or otherwise
- 22 -
properly footnoted in accordance with GAAP, on the financial statements of the
Company. The assets of each Company Employee Plan which is funded are reported,
in all material respects, at their fair market value on the books and records of
such Employee Benefit Plan.
(e) All the Company Employee Plans that are intended to be qualified
under Section 401(a) of the Code have received determination letters from the
Internal Revenue Service to the effect that such Company Employee Plans are
qualified and the plans and trusts related thereto are exempt from federal
income taxes under Sections 401(a) and 501(a), respectively, of the Code, no
such determination letter has been revoked and, to the knowledge of the Company,
revocation has not been threatened, and no such Employee Benefit Plan has been
amended or operated since the date of its most recent determination letter or
application therefor in any respect, and no act or omission has occurred, that
would adversely affect its qualification or require corrections that would
result in material liability to the Company or any of its Subsidiaries. Each
Company Employee Plan which is required to satisfy Section 401(k)(3) or Section
401(m)(2) of the Code has been tested for compliance with, and satisfies in all
material respects the requirements of Section 401(k)(3) and Section 401(m)(2) of
the Code, as the case may be, for each plan year ending prior to the Closing
Date.
(f) Neither the Company, any of the Company's Subsidiaries nor any of
their ERISA Affiliates has (i) ever maintained a Company Employee Plan which was
ever subject to Section 412 of the Code or Title IV of ERISA or (ii) at any time
within the last six years been obligated to contribute to a "multi-employer
plan" (as defined in Section 4001(a)(3) of ERISA). Neither the Company nor any
ERISA Affiliate has incurred any liability to any multi-employer plan which has
not been satisfied in full. No Company Employee Plan is funded by, associated
with or related to a "voluntary employee's beneficiary association" within the
meaning of Section 501(c)(9) of the Code. No Company Employee Plan holds
securities issued by the Company, any of the Company's Subsidiaries or any of
their ERISA Affiliates.
(g) Each Company Employee Plan, other than any Company Employee Plan
that is an individual agreement or an equity compensation plan, is amendable and
terminable unilaterally by the Company and any of the Company's Subsidiaries
party thereto or covered thereby at any time without material liability,
including liability for surrender charges, deferred sales charges and the like,
but excluding benefits accrued through the date of amendment or termination, to
the Company or any of its Subsidiaries as a result thereof and no such Company
Employee Plan, plan documentation or agreement, summary plan description or
other written communication distributed generally to employees by its terms
prohibits the Company or any of the Company's Subsidiaries party thereto or
covered thereby from amending or terminating any such Company Employee Plan.
(h) Except as disclosed in the Company SEC Reports filed prior to the
date of this Agreement, neither the Company nor any of its Subsidiaries is a
party to any oral or written (i) agreement with any stockholders, director,
executive officer or other key employee of the Company or any of its
Subsidiaries (A) the benefits of which are contingent, or the terms of which are
materially altered, upon the occurrence of a transaction involving the Company
or any of its Subsidiaries of the nature of any of the transactions contemplated
by this Agreement, (B)
- 23 -
providing any term of employment or compensation guarantee or (C) providing
severance benefits or other benefits after the termination of employment of or
directorship of such director, executive officer or key employee; or (ii)
agreement or plan binding the Company or any of its Subsidiaries, including any
stock option plan, stock appreciation right plan, restricted stock plan, stock
purchase plan or severance benefit plan, any of the benefits of which shall be
increased, or the vesting of the benefits of which shall be accelerated, by the
occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which shall be calculated on the basis of any of
the transactions contemplated by this Agreement.
(i) None of the Company Employee Plans promises or provides retiree
medical or other retiree welfare benefits to any person, except as required by
applicable law.
(j) There is no action, suit, proceeding, claim, arbitration, audit or
investigation pending or to the knowledge of the Company, threatened, with
respect to any Company Employee Plan, other than claims for benefits in the
ordinary course, that would reasonably be expected to result in liability to the
Company or to such Company Employee Plan.
(k) Except as would not, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect, each Company Employee
Plan maintained outside the United States is in compliance, and the books and
records thereof are maintained in compliance, with all applicable laws, rules
and regulations of the jurisdiction in which such Company Employee Plan is
maintained.
(l) Section 3.13(l) of the Company Disclosure Schedule lists each country
in which the Company or any of its Affiliates has operations and the approximate
number of employees in each such country.
(m) Neither the Company nor any of its Subsidiaries has made any
payments, is obligated to make any payments, or is a party to any agreement that
could obligate it to make any payments that may be treated as an "excess
parachute payment" as defined in Section 280G of the Code determined without
regard to Section 280G(b)(4) of the Code. The Company has provided to the Buyer
such accurate information as shall be necessary to enable the Buyer to calculate
any excise tax due under Section 4999 of the Code as a result of the
transactions contemplated by this Agreement for which the Company or the Buyer
may directly or indirectly become liable, and the amount of deductions that may
be disallowed under Section 280G of the Code as a result of the transactions
contemplated by this Agreement.
3.14 COMPLIANCE WITH LAWS. The Company and each of its Subsidiaries have
complied with, are not in violation of, and have not received any notice
alleging any violation with respect to, any applicable provisions of any
foreign, federal, state or local statute, law or regulation applicable to the
conduct of its business, or the ownership or operation of its properties or
assets, except for such failures to comply, violations and notices as would not,
individually or in the aggregate, reasonably be expected to result in a Company
Material Adverse Effect.
- 24 -
3.15 PERMITS. The Company and each of its Subsidiaries have all permits,
licenses and franchises from Governmental Entities necessary for the conduct of
their businesses (the "Company Permits"), except for such permits, licenses and
franchises the failure to have which would not, individually or in the
aggregate, reasonably be expected to result in a Company Material Adverse
Effect. Except as would not, individually or in the aggregate, reasonably be
expected to result in a Company Material Adverse Effect, (i) the Company and
each of its Subsidiaries are in compliance with the terms of the Company
Permits, and (ii) no Company Permit shall cease to be effective as a result of
the consummation of transactions contemplated by this Agreement.
3.16 LABOR MATTERS. Neither the Company nor any of its Subsidiaries is a
party to or otherwise bound by any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor organization. To
the Company's knowledge, there is no material pending or threatened (i) labor
strike, or (ii) dispute, walkout, work stoppage, slow-down, lockout or
organizational effort involving the Company or any of its Subsidiaries.
3.17 INSURANCE. To the Company's knowledge, each of the Company and its
Subsidiaries maintains insurance policies (the "Insurance Policies") with
reputable insurance carriers against all risks of a character and in such
amounts as are usually insured against by similarly situated companies in the
same or similar businesses. Section 3.17 of the Company Disclosure Schedule sets
forth the insurance coverages maintained by the Company and its Subsidiaries and
a history of any claims made and claims paid since January 1, 1998. Except as
would not, individually or in the aggregate, reasonably be expected to result in
a Company Material Adverse Effect, (i) each Insurance Policy is in full force
and effect and is valid, outstanding and enforceable, and all premiums due
thereon have been paid in full, (ii) none of the Insurance Policies shall
terminate or lapse (or be affected in any other adverse manner) by reason of the
transactions contemplated by this Agreement, (iii) the Company and each of its
Subsidiaries have complied with the provisions of each Insurance Policy under
which it is the insured party, (iv) no insurer under any Insurance Policy has
canceled or generally disclaimed liability under any such policy or indicated
any intent to do so or not to renew any such policy and (v) all claims under the
Insurance Policies have been filed in a timely fashion.
3.18 WARRANTY. The Company has no reason to believe that the warranty
costs of it and its Subsidiaries will materially increase as a percentage of
their consolidated revenues in the future (assuming that management of the
Company and its Subsidiaries following the Closing will be undertaken in a
manner consistent with past practice). To the Company's knowledge, since January
1, 1998, the Company and its Subsidiaries have not performed warranty service
with respect to any particular product or product line materially in excess of
the warranty service typically required to be performed with respect to the
products and product lines of the Company and its Subsidiaries taken as a whole
(the Buyer acknowledging that the Company and its Subsidiaries do not track or
record warranty service on a product or product line basis).
3.19 CUSTOMERS AND SUPPLIERS. No customer (including any Affiliate
thereof) of the Company or any of its Subsidiaries represented 5% or more of the
Company's consolidated revenues in the fiscal year ended December 31, 2000 or in
the three-month period ended
- 25 -
March 31, 2001. No supplier of the Company or any of its Subsidiaries whose
failure to continue to be a supplier of the Company or its Subsidiaries would
reasonably be expected, individually or in the aggregate, to result in a Company
Material Adverse Effect has indicated to the Company or any of its Subsidiaries
that it will stop, or materially decrease the rate of, supplying materials,
products or services to them.
3.20 NO EXISTING DISCUSSIONS. As of the date of this Agreement, neither
the Company nor any of its Subsidiaries is engaged, directly or indirectly, in
any discussions or negotiations with any other party with respect to an
Acquisition Proposal.
3.21 OPINION OF FINANCIAL ADVISOR. The financial advisor of the Company,
XX Xxxxxx Xxxxx & Co., has delivered to the Company an opinion dated the date of
this Agreement to the effect, as of such date, that the Merger Consideration is
fair to the holders of the Company Common Stock from a financial point of view,
a signed copy of which opinion has been delivered to the Buyer.
3.22 SECTION 203 OF THE DGCL NOT APPLICABLE. The Company Board has taken
all actions necessary so that the restrictions contained in Section 203 of the
DGCL applicable to a "business combination" (as defined in Section 203) shall
not apply to the execution, delivery or performance of this Agreement, the
Stockholder's Agreement, the Voting Agreements or the consummation of the Merger
or the other transactions contemplated by this Agreement, the Stockholder's
Agreement or the Voting Agreements.
3.23 BROKERS. No agent, broker, investment banker, financial advisor or
other firm, or person is or shall be entitled, as a result of any action,
agreement or commitment of the Company or any of its Affiliates, to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with any of the transactions contemplated by this Agreement, except
XX Xxxxxx Chase & Co., whose fees and expense shall be paid by the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER AND THE
TRANSITORY SUBSIDIARY
The Buyer and the Transitory Subsidiary represent and warrant to the
Company that the statements contained in this Article IV are true and correct,
except as expressly set forth herein or in the disclosure schedule delivered by
the Buyer and the Transitory Subsidiary to the Company on or before the date of
this Agreement (the "Buyer Disclosure Schedule"). The Buyer Disclosure Schedule
shall be arranged in paragraphs corresponding to the numbered and lettered
paragraphs contained in this Article IV and the disclosure in any paragraph
shall qualify (1) the corresponding paragraph in this Article IV and (2) such
other paragraphs in this Article IV only to the extent that it is reasonably
apparent from a reading of such document that it also qualifies or applies to
such other paragraphs.
- 26 -
4.1 ORGANIZATION, STANDING AND POWER. Each of the Buyer and the Transitory
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, has all
requisite corporate power and authority to own, lease and operate its properties
and assets and to carry on its business, and is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction where the
character of its properties owned, operated or leased or the nature of its
activities makes such qualification necessary, except for such failures to be so
organized, qualified or in good standing, individually or in the aggregate,
which have not resulted in, and would not reasonably be expected to result in a
Buyer Material Adverse Effect. For purposes of this Agreement, the term "Buyer
Material Adverse Effect" means any material adverse change, event, circumstance,
development or effect on (i) the business, financial condition, or results of
operations of the Buyer and its Subsidiaries, taken as a whole, or (ii) the
ability of the Buyer or the Transitory Subsidiary to consummate the transactions
contemplated by this Agreement; provided, however, that for purposes of this
Agreement, (I) adverse changes in the stock price of the Buyer in and of itself,
as quoted on the New York Stock Exchange, (II) conditions, events or
circumstances generally adversely affecting the economies of the countries where
the Buyer and its Subsidiaries operate, the United States securities markets or
the industries in which the Buyer operates, so long as such conditions, events
or circumstances do not materially disproportionately affect the Buyer and its
Subsidiaries, taken as a whole, (III) conditions, events or circumstances
directly arising out of or directly attributable to (x) a material breach of
this Agreement by the Company or (y) the Merger or any other transaction
involving the parties hereto contemplated by this Agreement, or (IV) conditions,
events or circumstances directly arising out of or directly attributable to the
public announcement of this Agreement or the transactions contemplated hereby,
shall not be taken into account in determining whether there has been or would
be a "Buyer Material Adverse Effect".
4.2 CAPITALIZATION.
(a) The authorized capital stock of the Buyer consists of 300,000,000
shares of Buyer Common Stock and 1,000,000 shares of preferred stock, $1.00 par
value per share (the "Buyer Preferred Stock"), of which 70,000 shares of Buyer
Preferred Stock are designated Series C Junior Participating Preferred Stock.
The rights and privileges of each class of Buyer's capital stock are set forth
in the Buyer's Articles of Organization. As of the close of business on July 10,
2001, 101,327,183 shares of Buyer Common Stock were issued and outstanding and
no shares of Buyer Preferred Stock were issued and outstanding. Other than
pursuant to the exercise of options under the Buyer's stock option plans, the
Buyer has not, since July 10, 2001 through the date of this Agreement, issued
any shares of Buyer Common Stock or Buyer Preferred Stock. All shares of Buyer
Common Stock issuable pursuant to Section 2.1(c) in connection with the Merger,
when issued on the terms and conditions of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable and not subject to or
issued in violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
the Massachusetts Business Corporation Law, the Buyer's Articles of Organization
or By-laws or any agreement to which the Buyer is a party or is otherwise bound.
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(b) As of the date of this Agreement, except (x) as set forth in
Section 4.2 of the Buyer Disclosure Schedule and (y) as reserved for future
issuance under options outstanding as of the date of this Agreement or for
future grants under stock option plans of the Buyer existing as of the date of
this Agreement, (i) there are no equity securities of any class of the Buyer, or
any security exchangeable into or exercisable for such equity securities,
issued, reserved for issuance or outstanding and (ii) there are no options,
warrants, equity securities, calls, rights, commitments or agreements of any
character to which the Buyer is a party or by which the Buyer is bound
obligating the Buyer to issue, exchange, transfer, deliver or sell, or cause to
be issued, exchanged, transferred, delivered or sold, additional shares of
capital stock or other equity interests of the Buyer or any security or rights
convertible into or exchangeable or exercisable for any such shares or other
equity interests. As of the date of this Agreement, the Buyer has no (A) stock
appreciation rights or phantom stock or (B) performance based rights or similar
rights or obligations outstanding.
(c) As of the date of this Agreement, there are no obligations,
contingent or otherwise, of the Buyer to repurchase, redeem or otherwise acquire
any shares of Buyer Common Stock or other capital stock of the Buyer.
4.3 AUTHORITY; NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) Each of the Buyer and the Transitory Subsidiary has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. Without limiting the generality of
the foregoing, the board of directors of the Buyer (the "Buyer Board"), at a
meeting duly called and held, by the unanimous vote of all directors (i)
determined that the Merger is fair and in the best interests of the Buyer and
its stockholders and (ii) resolved to recommend the Buyer Voting Proposal to the
Buyer's stockholders. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement by the Buyer and
the Transitory Subsidiary have been duly authorized by all necessary corporate
action on the part of each of the Buyer and the Transitory Subsidiary (including
the approval of the Merger by the Buyer in its capacity as the sole stockholder
of the Transitory Subsidiary), subject only to the approval of the Buyer Voting
Proposal (as defined in Section 6.5(b)) by the stockholders of the Buyer. This
Agreement has been duly executed and delivered by each of the Buyer and the
Transitory Subsidiary and constitutes the valid and binding obligation of each
of the Buyer and the Transitory Subsidiary, enforceable in accordance with its
terms.
(b) The execution and delivery of this Agreement by each of the Buyer and
the Transitory Subsidiary does not, and the consummation by the Buyer and the
Transitory Subsidiary of the transactions contemplated by this Agreement will
not, (i) conflict with, or result in any violation or breach of, any provision
of the Articles of Organization or By-laws of the Buyer or the Certificate of
Incorporation or By-laws of the Transitory Subsidiary, (ii) conflict with, or
result in any violation or breach of, or constitute (with or without notice or
lapse of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any material benefit)
under, require a consent or waiver under, constitute a change in control under,
require the payment of a penalty under or result in the imposition of any
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Lien on the Buyer's or the Transitory Subsidiary's assets under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract or other agreement, instrument or obligation to which the
Buyer or the Transitory Subsidiary is a party or by which any of them or any of
their properties or assets may be bound, or (iii) subject to compliance with the
requirements specified in Section 4.3(c), conflict with or violate any permit,
concession, franchise, license, judgment, injunction, order, decree, statute,
law, ordinance, rule or regulation applicable to the Buyer or the Transitory
Subsidiary or any of its or their properties or assets, except in the case of
clauses (ii) and (iii) of this Section 4.3(b) for any such conflicts,
violations, breaches, defaults, terminations, cancellations, accelerations or
losses as would not, individually or in the aggregate, reasonably be expected to
result in a Buyer Material Adverse Effect.
(c) No consent, approval, license, permit, order or authorization of, or
registration, declaration, notice or filing with, any Governmental Entity is
required by or with respect to the Buyer or the Transitory Subsidiary in
connection with the execution and delivery of this Agreement by the Buyer of the
Transitory Subsidiary or the consummation by the Buyer or the Transitory
Subsidiary of the transactions contemplated by this Agreement, except for (i)
the pre-merger notification requirements under the HSR Act, and any consents,
approvals and filings required under applicable foreign antitrust laws, (ii) the
filing of the Certificate of Merger with the Delaware Secretary of State and
appropriate corresponding documents with the Secretaries of State of other
states in which the Company is qualified as a foreign corporation to transact
business, (iii) the filing of the Registration Statement and Joint Proxy
Statement/Prospectus with the SEC in accordance with the Securities Act and the
Exchange Act, (iv) the filings of such reports or schedules under Section 13 or
Rule 14a-12 (or other applicable rules) of the Exchange Act and materials under
Rule 165 and Rule 425 (or other applicable rules) of the Securities Act as may
be required in connection with this Agreement and the transactions contemplated
hereby, (v) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable state securities
laws, (vi) any consents, authorizations, approvals, filings or exemptions
required by the rules of the New York Stock Exchange with respect to the shares
of Buyer Common Stock issuable in connection with the Merger and (vii) such
other consents, licenses, permits, orders, authorizations, filings, approvals
and registrations which, if not obtained or made, would not, individually or in
the aggregate, reasonably be expected to result in a Buyer Material Adverse
Effect. The affirmative vote for the approval of the issuance of shares of Buyer
Common Stock to be issued in the Merger by the holders of a majority of the
shares of Buyer Common Stock voted at the Buyer Stockholders Meeting at which a
quorum of the holders of the outstanding shares of Buyer Common Stock on the
record date for the Buyer Stockholders Meeting is the only vote of the holders
of any class or series of the Buyer's capital stock or other securities of the
Buyer necessary to approve the consummation by the Buyer of the transactions
contemplated by this Agreement.
4.4 SEC FILINGS; FINANCIAL STATEMENTS; INFORMATION PROVIDED.
(a) The Buyer has filed all registration statements, forms, reports and
other documents required to be filed by the Buyer with the SEC since January 1,
1998 and all such registration statements, forms, reports and other documents
are available on XXXXX. All such
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registration statements, forms, reports and other documents (including those
that the Buyer may file after the date hereof until the Closing) are referred to
herein as the "Buyer SEC Reports." The Buyer SEC Reports (i) were or will be
filed on a timely basis, (ii) at the time filed, were or will be prepared in
compliance in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Buyer SEC Reports, and
(iii) did not or will not at the time they were or are filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in such Buyer SEC Reports or necessary in order to make the statements in
such Buyer SEC Reports, in the light of the circumstances under which they were
made, not misleading.
(b) Each of the consolidated financial statements (including, in each
case, any related notes and schedules) contained or to be contained in the Buyer
SEC Reports at the time filed (i) complied or will comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, (ii) were or will be
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by the SEC
under the Exchange Act and the published rules and regulations of the SEC
thereunder) and (iii) fairly presented or will fairly present in accordance with
GAAP the consolidated financial position of the Buyer and its Subsidiaries as of
the dates thereof and the consolidated results of its operations and cash flows
for the periods indicated, consistent with the books and records of the Buyer
and its Subsidiaries, except that the unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments which were not
or are not expected to be material in amount. The consolidated, unaudited
balance sheet of the Buyer as of April 1, 2001 is referred to herein as the
"Buyer Balance Sheet".
(c) The information in the Registration Statement (except for information
supplied by the Company for inclusion in the Registration Statement, as to which
the Buyer makes no representation and which shall not constitute part of the
Buyer SEC Reports for purposes of this Agreement) shall not at the time the
Registration Statement is declared effective by the SEC contain any untrue
statement of a material fact or omit to state any material fact required to be
stated in the Registration Statement or necessary in order to make the
statements in the Registration Statement not misleading. The information related
to the Buyer to be supplied by or on behalf of the Buyer for inclusion or
incorporation by reference in the Joint Proxy Statement/Prospectus shall not, on
the date the Joint Proxy Statement/Prospectus is first mailed to stockholders of
the Buyer or the Company, at the time of the Buyer Stockholders Meeting and the
Company Stockholders Meeting or at the Effective Time, contain any statement
which, at such time and in light of the circumstances under which it shall be
made, is false or misleading with respect to any material fact, or omit to state
any material fact necessary in order to make the statements made in the Joint
Proxy Statement/Prospectus not false or misleading; or omit to state any
material fact necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for the Buyer Stockholders Meeting
or the Company Stockholders Meeting which has become false or misleading. If at
any time prior to the Effective Time any event relating to the Buyer or any of
its Affiliates, officers or directors
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should be discovered by the Buyer which should be set forth in an amendment to
the Registration Statement or a supplement to the Joint Proxy
Statement/Prospectus, the Buyer shall promptly inform the Company.
4.5 NO UNDISCLOSED LIABILITIES. Except as disclosed in the Buyer SEC
Reports filed prior to the date of this Agreement, and except for normal and
recurring liabilities incurred since the date of the Buyer Balance Sheet in the
ordinary course of business, the Buyer and its Subsidiaries do not have any
liabilities, either accrued, contingent or otherwise (whether or not required to
be reflected in financial statements in accordance with GAAP), and whether due
or to become due, except for any liabilities which would not, individually or in
the aggregate, reasonably be expected to result in a Buyer Material Adverse
Effect. For purposes of this Agreement, the incurrence of indebtedness for money
borrowed by the Buyer or any of its Subsidiaries shall not be treated as causing
a Buyer Material Adverse Effect.
4.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the Buyer
SEC Reports filed prior to the date of this Agreement, since the date of the
Buyer Balance Sheet, there has not been (i) any change, event, circumstance,
development or effect that would, individually or in the aggregate, reasonably
be expected to result in a Buyer Material Adverse Effect; or (ii) any material
change by the Buyer or any of its Subsidiaries in its accounting methods not
required pursuant to GAAP.
4.7 TAX MATTERS. To the Buyer's knowledge, after consulting with its
advisors, neither the Buyer nor any of its Affiliates has taken or agreed to
take any action which would prevent the Merger from constituting a transaction
qualifying as a reorganization under Section 368(a) of the Code.
4.8 LITIGATION. Except as would not, individually or in the aggregate,
reasonably be expected to result in a Buyer Material Adverse Effect, as of the
date hereof (i) there is no action, suit, proceeding, claim, arbitration or
investigation pending or, to the knowledge of the Buyer, threatened against or
affecting the Buyer or any of its Subsidiaries and (ii) there are no judgments,
orders or decrees outstanding against the Buyer or any of its Subsidiaries.
4.9 INTELLECTUAL PROPERTY. Other than with respect to software programs
that are commercially available on a general basis, the Buyer and its
Subsidiaries own, license or otherwise possess legally enforceable rights to use
all Intellectual Property used in or necessary to the conduct of the business of
the Buyer and its Subsidiaries (the "Buyer Intellectual Property"), except where
the failure to own, license or have rights to use such Buyer Intellectual
Property would not, individually or in the aggregate, reasonably be expected to
result in a Buyer Material Adverse Effect. None of the (i) products sold by the
Buyer or any of its Subsidiaries or (ii) business or activities conducted by the
Buyer or any of its Subsidiaries infringes, violates or constitutes a
misappropriation of, or infringed, violated or constituted a misappropriation
of, any Intellectual Property of any third party (including any software
programs and applications that are commercially available), except for
infringements, violations or misappropriations which would not, individually or
in the aggregate, reasonably be expected to result in a Buyer Material Adverse
Effect.
- 31 -
4.10 AGREEMENTS, CONTRACTS AND COMMITMENTS. As of the date of this
Agreement, there are no contracts, agreements or instruments that are material
to the business, financial condition or results of operations of the Buyer and
its Subsidiaries, taken as a whole, that have not been filed as exhibits to the
Buyer SEC Reports.
4.11 ENVIRONMENTAL MATTERS.
(a) Except for such matters as would not, individually or in the
aggregate, reasonably be expected to result in a Buyer Material Adverse Effect:
(i) the Buyer and each of its Subsidiaries have at all times
complied with, and are not currently in violation of, any applicable
Environmental Laws;
(ii) the Buyer and each of its Subsidiaries have all permits,
licenses and approvals required under Environmental Laws to operate and conduct
their respective businesses as currently operated and conducted; and
(iii) to the Buyer's knowledge, there is no Contamination of or at
the properties currently owned, leased or operated by the Buyer or any of its
Subsidiaries (including soils, groundwater, surface water, buildings or other
structures).
4.12 COMPLIANCE WITH LAWS. The Buyer and each of its Subsidiaries have
complied with, are not in violation of, and have not received any notice
alleging any violation with respect to, any applicable provisions of any
foreign, federal, state or local statute, law or regulation applicable to the
conduct of its business, or the ownership or operation of its properties or
assets, except for such failures to comply, violations and notices as would not,
individually or in the aggregate, reasonably be expected to result in a Buyer
Material Adverse Effect.
4.13 PERMITS. The Buyer and each of its Subsidiaries have all permits,
licenses and franchises from Governmental Entities necessary for the conduct of
their businesses (the "Buyer Permits"), except for such permits, licenses and
franchises the failure to have which would not, individually or in the
aggregate, reasonably be expected to result in a Buyer Material Adverse Effect.
Except as would not, individually or in the aggregate, reasonably be expected to
result in a Buyer Material Adverse Effect, (i) the Buyer and each of its
Subsidiaries are in compliance with the terms of the Buyer Permits, and (ii) no
Buyer Permit shall cease to be effective as a result of the consummation of
transactions contemplated by this Agreement.
4.14 OPERATIONS OF THE TRANSITORY SUBSIDIARY. The Transitory Subsidiary was
formed solely for the purpose of engaging in the transactions contemplated by
this Agreement, has engaged in no other business activities and has conducted
and will conduct (through and including the Effective Time) its operations only
as contemplated by this Agreement.
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ARTICLE V
CONDUCT OF BUSINESS
5.1 COVENANTS OF THE COMPANY. Except as expressly provided herein or as
consented to in writing by the Buyer, from and after the date of this Agreement
until the earlier of the termination of this Agreement in accordance with its
terms or the Effective Time, the Company shall, and shall cause each of its
Subsidiaries to, act and carry on its business in the ordinary course of
business and use commercially reasonable efforts, consistent with past
practices, to maintain and preserve its and each Subsidiary's business
organization, assets and properties, keep available the services of its present
officers and employees and preserve its advantageous business relationships with
customers, strategic partners, suppliers, distributors and others having
business dealings with it. Without limiting the generality of the foregoing,
except as expressly set forth in Section 5.1 of the Company Disclosure Schedule,
from and after the date of this Agreement until the earlier of the termination
of this Agreement in accordance with its terms or the Effective Time, the
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, do any of the following without the prior written consent of the
Buyer:
(a) (A) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, securities or other property) in respect of, any
of its capital stock (other than dividends and distributions by a direct or
indirect wholly owned Subsidiary of the Company to its parent); (B) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock or any of its other securities; or (C) purchase,
redeem or otherwise acquire any shares of its capital stock or any other of its
securities or any rights, warrants or options to acquire any such shares or
other securities;
(b) except as permitted by Section 5.1(n), issue, deliver, sell, grant,
pledge or otherwise dispose of or encumber any shares of its capital stock, any
other voting securities or any securities convertible into or exchangeable for,
or any rights, warrants or options to acquire, any such shares, voting
securities or convertible or exchangeable securities (other than the issuance of
shares of Company Common Stock upon the exercise of Company Stock Options or
Company Rights outstanding on the date of this Agreement in accordance with
their present terms or granted hereafter as permitted by Section 5.1(n));
(c) amend its certificate of incorporation, by-laws or other comparable
charter or organizational documents, except as expressly provided by this
Agreement;
(d) acquire by merging or consolidating with, or by purchasing all or a
substantial portion of the assets or any stock of, or by any other manner, any
business or any corporation, partnership, joint venture, limited liability
company, association or other business organization or division thereof;
(e) except for the sale of inventory in the ordinary course of business,
sell, lease, license, pledge, encumber, dispose of or otherwise transfer any
assets (including any intellectual
- 33 -
property, contracts or stock of the Company's Subsidiaries) material to the
Company and its Subsidiaries, taken as a whole that have a value in excess of
$1,000,000;
(f) adopt or implement any stockholder rights plan;
(g) except for a confidentiality agreement as permitted by Section 6.1,
enter into an agreement with respect to any merger, consolidation, liquidation
or business combination, or any acquisition or disposition of all or
substantially all of the assets or securities of the Company or any of its
Subsidiaries (other than sales of inventory in the ordinary course of business);
(h) (A) have indebtedness for borrowed money at any time outstanding in
excess of $125 million in the aggregate on a consolidated basis, (B) issue, sell
or amend any debt securities or other rights to acquire any debt securities of
the Company or any of its Subsidiaries, guarantee any debt securities of another
person, enter into any "keep well" or other agreement to maintain any financial
statement condition of another person or enter into any arrangement having the
economic effect of any of the foregoing, (C) make any loans, advances (other
than routine advances to employees in the ordinary course of business) or
capital contributions to, or investment in, any other person, other than the
Company or any of its direct or indirect wholly owned Subsidiaries or (D) except
in the ordinary course of business consistent with past practice, enter into any
hedging agreement or other financial agreement or arrangement designed to
protect the Company or its Subsidiaries against fluctuations in commodities
prices or exchange rates;
(i) make any capital expenditures or other expenditures with respect to
property, plant or equipment for the Company and its Subsidiaries other than as
set forth in the Company's capital expenditure budget attached hereto as Section
5.1(i) of the Company Disclosure Schedule;
(j) make any changes in financial accounting methods, principles or
practices, except insofar as may have been required by a change in GAAP or,
except as so required, change any method of calculating any bad debt,
contingency or other reserve;
(k) except as expressly permitted in Section 6.1, waive any material
benefits of, modify in any material adverse respect, materially fail to enforce,
or consent to any matter with respect to which its consent is required under,
any confidentiality, standstill or similar agreements to which the Company or
any of its Subsidiaries is a party;
(l) except in the ordinary course of business, knowingly modify, amend or
terminate in a material and adverse manner any material contract or agreement to
which the Company or any of its Subsidiaries is party, or knowingly waive,
release or assign any material rights or claims in an adverse manner (including
any write-off or other adverse compromise of any material accounts receivable of
the Company or any of its Subsidiaries);
(m) (A) enter into any contract or agreement material to the Company and
its Subsidiaries, taken as a whole, or (B) except on a non-exclusive basis in
the ordinary course of
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business consistent with past practice, license any material intellectual
property rights to or from any third party;
(n) except as required to comply with applicable law or agreements, plans
or arrangements existing on the date hereof or as expressly contemplated by
Section 6.12, (A) adopt, enter into, terminate or amend any employment,
severance or similar agreement or benefit plan for the benefit or welfare of any
current or former director, officer, employee or consultant or any collective
bargaining agreement, (B) increase the compensation or fringe benefits of, or
pay any bonus to, any director, officer, employee or consultant except for
annual salary increases of non-officer employees in the ordinary course of
business or increases (up to $250,000 in the aggregate) in the ordinary course
of business to employees or consultants who, after such increases, cannot
reasonably be expected to be compensated at a rate of $100,000 or more per
annum, (C) amend or accelerate the payment, right to payment or vesting of any
compensation or benefits, including any outstanding options or restricted stock
awards, (D) pay any material benefit not provided for as of the date of this
Agreement under any benefit plan, (E) grant any awards under any bonus,
incentive, performance or other compensation plan or arrangement or benefit
plan, including the grant of stock options, stock appreciation rights, stock
based or stock related awards, performance units or restricted stock, or the
removal of existing restrictions in any benefit plans or agreements or awards
made thereunder, except for the grant of options to purchase Company Common
Stock to new hires (which grants shall not exceed 100,000 shares in the
aggregate or 5,000 shares to any one person without the prior written consent of
the Buyer, which consent shall not be unreasonably withheld) and shall have an
exercise price equal to the fair market value of the Company Common Stock on the
date of grant (determined in a manner consistent with the Company's existing
practice for establishing fair market value for option grants) and shall
otherwise be upon the Company's customary terms) or (F) take any action other
than in the ordinary course of business to fund or in any other way secure the
payment of compensation or benefits under any employee plan, agreement, contract
or arrangement or benefit plan;
(o) make or rescind any material Tax election, settle or compromise any
material Tax liability or make any material amendment to any Tax return, except,
in each case, in the ordinary course of business, so long as any resulting
expense for the audit or return in question and future impacts through December
31, 2000 have been adequately reserved for on the Balance Sheet;
(p) [Intentionally Omitted];
(q) initiate, compromise or settle in an adverse manner any litigation
or arbitration proceeding material to the Company and its Subsidiaries, taken as
a whole;
(r) take any action (including action otherwise permitted in this
Section 5.1) that would prevent or impede the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code;
- 35 -
(s) except in the ordinary course of business, open or close any
facility or office material to the Company and its Subsidiaries, taken as a
whole; or
(t) authorize any of, or commit or agree, in writing or otherwise, to
take any of, the foregoing actions or any action which would make any
representation or warranty of the Company in this Agreement untrue or incorrect
in any material respect, or would materially impair or prevent the satisfaction
of any conditions in Article VII hereof.
5.2 COVENANTS OF THE BUYER. During the period from the date of this
Agreement to the Effective Time, the Buyer shall use commercially reasonable
efforts consistent with past practice to maintain and preserve its business
organization and to retain the services of its executive officers and key
employees and maintain relationships with material customers, suppliers and
other third parties. During the period from the date of this Agreement to the
Effective Time, the Buyer shall not (i) make any amendment to its Articles of
Organization that changes the fundamental attributes of Buyer Common Stock, (ii)
make any material changes to the Certificate of Incorporation of the Transitory
Subsidiary, (iii) make, declare or pay any extraordinary cash dividend, other
than extraordinary dividends between the Buyer and one or more of its wholly
owned Subsidiaries, (iv) take any action that is material and adverse to the
stockholders of the Company as prospective stockholders of the Buyer or as
prospective holders of rights pursuant to the Rights Agreement, dated January
25, 1995, between the Buyer (formerly known as EG&G, Inc.) and The First
National Bank of Boston, as amended and restated by the Amended and Restated
Rights Agreement, dated as of January 30, 2001, between the Buyer and Mellon
Investor Services LLC and that affects the Company's stockholders
disproportionately as compared to the current stockholders of the Buyer, (v)
take any action (including action otherwise permitted in this Section 5.2) that
would prevent or impede the Merger from qualifying as a "reorganization" within
the meaning of Section 368(a) of the Code, (vi) knowingly take any action or
knowingly omit to take any action for the purpose of directly or indirectly,
preventing, materially delaying or materially impeding (or that would reasonably
be expected to prevent, materially delay or materially impede) the consummation
of the Merger and the other transactions contemplated by this Agreement, (vii)
permit or cause any of its Subsidiaries to do any of the foregoing or agree or
commit to any of the foregoing, or (viii) agree in writing or otherwise to take
any of the foregoing actions.
5.3 CONFIDENTIALITY. The parties acknowledge that the Buyer and the Company
have previously executed a confidentiality agreement, dated as of May 31, 2001
(the "Confidentiality Agreement"), which Confidentiality Agreement shall
continue in full force and effect in accordance with its terms, except as
expressly modified herein.
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ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 NO SOLICITATION.
(a) NO SOLICITATION OR NEGOTIATION. Except as set forth in this Section
6.1, until the termination of this Agreement in accordance with the terms hereof
(the "Specified Time"), the Company shall not, nor shall it cause, authorize or
permit any of its Subsidiaries or Affiliates or any of its or their directors,
officers, employees, investment bankers, attorneys, accountants or other
advisors or representatives (such directors, officers, employees, investment
bankers, attorneys, accountants, other advisors and representatives,
collectively, "Representatives") of the Company or its Subsidiaries not to
directly or indirectly:
(i) solicit, initiate, encourage or take any other action to
facilitate any inquiries or the making of any proposal or offer that
constitutes, or could reasonably be expected to lead to, any Acquisition
Proposal, including approving any transaction (or any person becoming an
"interested stockholder") under Section 203 of the DGCL; or
(ii) enter into, continue or otherwise participate in any discussions
or negotiations regarding, furnish to any person any information with respect
to, assist or participate in any effort or attempt by any person with respect
to, or otherwise cooperate in any way with, any Acquisition Proposal.
Notwithstanding the foregoing, in response to an Acquisition Proposal that
did not result from a breach of this Section 6.1, and subject to compliance with
Section 6.1(c), the Company may (x) furnish information with respect to the
Company to any person (and the Representatives of such persons) making an
Acquisition Proposal that the Company Board determines in good faith (after
consultation with outside counsel and its financial advisors) is reasonably
likely to result in a Superior Proposal, pursuant to a customary confidentiality
agreement not materially less restrictive of the other party than the
Confidentiality Agreement (which need not have standstill provisions) and (y)
engage in discussions or negotiations with such person and its Representatives
regarding any such Acquisition Proposal. Without limiting the foregoing, it is
agreed that any violation of the restrictions set forth in this Section 6.1(a)
by any Affiliate or Representative of the Company or any of its Subsidiaries,
whether or not such person is purporting to act on behalf of the Company or
otherwise, shall be deemed to be a breach of this Section 6.1(a) by the Company.
(b) NO CHANGE IN RECOMMENDATION OR ALTERNATIVE ACQUISITION AGREEMENT.
Neither the Company Board nor any committee thereof shall, prior to the
Specified Time:
(i) except as set forth in this Section 6.1(b), withdraw or propose
to withdraw or knowingly modify in any material adverse manner or propose to
knowingly modify in any material adverse manner, the approval or recommendation
by the Company Board or any such committee of this Agreement or the Merger;
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(ii) cause or permit the Company to enter into any letter of intent,
memorandum of understanding, agreement in principle, acquisition agreement,
merger agreement or similar agreement (an "Alternative Acquisition Agreement")
constituting or relating to any Acquisition Proposal other than a
confidentiality agreement referred to in Section 6.1(a) entered into in the
circumstances referred to in such Section 6.1(a); or
(iii) adopt, approve or recommend, or propose to adopt, approve or
recommend, any Acquisition Proposal.
Notwithstanding the foregoing, the Company Board may (x) withdraw or
knowingly modify in any material adverse manner the approval or recommendation
by the Company Board or any committee thereof of this Agreement and the Merger,
if the Company Board determines in good faith (after consultation with outside
counsel and its financial advisors) that an Acquisition Proposal constitutes a
Superior Proposal as to which it intends to enter into a binding written
agreement as provided in Section 8.1(i) and (y) adopt, approve or recommend, or
propose to adopt, approve or recommend, any Superior Proposal subject to
compliance with Section 8.1(i) hereof.
(c) NOTICES TO THE BUYER; ADDITIONAL NEGOTIATIONS. The Company shall
promptly advise the Buyer orally, with written confirmation to follow within 24
hours of the occurrence, of any Acquisition Proposal or any request for
nonpublic information in connection with any Acquisition Proposal, by any person
that the Company has knowledge may be considering making, or has made, an
Acquisition Proposal, the material terms and conditions of any such Acquisition
Proposal or request and the identity of the person making any such Acquisition
Proposal or request. The Company shall keep the Buyer informed, on a prompt
basis, of the status and material terms (including all changes to the status and
material terms) of any such Acquisition Proposal or request.
(d) CERTAIN PERMITTED DISCLOSURE. Nothing contained in this Section 6.1
or elsewhere in this Agreement shall be deemed to prohibit the Company from
taking and disclosing to its stockholders a position with respect to a tender
offer contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from
making any other disclosure to its stockholders if, in the good faith judgment
of the Company Board, based on the advice of outside counsel, failure to so
disclose would be inconsistent with its obligations under applicable law.
(e) CESSATION OF ONGOING DISCUSSIONS. The Company shall, and shall cause
its Subsidiaries and its and their Representatives to, cease immediately all
discussions and negotiations commenced on or prior to the date of this Agreement
regarding any proposal that constitutes, or could reasonably be expected to lead
to, an Acquisition Proposal. The Company shall use commercially reasonable
efforts to have all copies of all nonpublic information it or its Subsidiaries
and its and their Representatives have distributed since January 1, 2001, to
persons who have executed a confidentiality agreement in connection with such
person's consideration of an Acquisition Proposal, destroyed or returned to the
Company as soon as possible.
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(f) DEFINITIONS. For purposes of this Agreement:
"Acquisition Proposal" means (i) any proposal or offer for a
merger, consolidation, dissolution, sale of substantial assets, tender offer,
recapitalization, share exchange or other business combination involving the
Company and its Subsidiaries, taken as a whole, (ii) any proposal for the
issuance by the Company or any of its Subsidiaries of over 20% of its equity
securities or (iii) any proposal or offer to acquire in any manner, directly or
indirectly, over 20% of the equity securities or consolidated total assets of
the Company, in each case other than the Merger contemplated by this Agreement.
"Superior Proposal" means any unsolicited, bona fide written
proposal made by a third party to acquire substantially all the equity
securities or assets of the Company pursuant to a tender or exchange offer, a
merger, a consolidation or a sale of its assets, (i) on terms which the Company
Board determines in its good faith judgment to be more favorable from a
financial point of view to the holders of Company Common Stock than the
transactions contemplated by this Agreement (based on the advice of a nationally
recognized independent financial advisor), taking into account all the terms and
conditions of such proposal and this Agreement (including any proposal by the
Buyer to amend the terms of this Agreement) and (ii) that is reasonably capable
of being completed on the terms proposed, taking into account all financial,
regulatory, legal and other aspects of such proposal; provided, however, that no
Acquisition Proposal shall be deemed to be a Superior Proposal if any financing
required to consummate the Acquisition Proposal is not committed; provided,
further, however, that a proposal to acquire less than substantially all of the
equity securities of the Company may constitute a Superior Proposal if it
satisfies the other provisions of this definition and provides for the
acquisition of at least a majority of the Company's equity securities so long as
in the evaluation of the proposal the Company Board determines in its good faith
judgment (X) that the value of the proposal of the third party, together with
the fair market value of the equity securities to be retained by the holders of
the Company Common Stock is more favorable from a financial point of view to the
holders of the Company Common Stock than the transactions contemplated by this
Agreement (based on the advice of a nationally recognized independent financial
advisor) taking into account all the terms and conditions of such proposal and
this Agreement and (Y) that the proposal is reasonably capable of being
completed on the terms proposed, taking into account all financial, regulatory,
legal and other aspects of such proposal.
6.2 JOINT PROXY STATEMENT/PROSPECTUS; REGISTRATION STATEMENT.
(a) As promptly as practicable after the execution of this Agreement,
the Buyer and the Company shall prepare and the Company shall file with the SEC
the Joint Proxy Statement/Prospectus, and the Buyer, in cooperation with the
Company, shall prepare and file with the SEC the Registration Statement, in
which the Joint Proxy Statement/Prospectus shall be included as a prospectus.
Each of the Buyer and the Company shall respond to any comments of the SEC and
shall use its respective reasonable best efforts to have the Joint Proxy
Statement/Prospectus cleared by the SEC and the Registration Statement declared
effective under the Securities Act as promptly as practicable after such
filings, and the Company shall cause the Joint Proxy Statement/Prospectus to be
mailed to its stockholders at the earliest
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practicable time after both the Joint Proxy Statement/Prospectus is cleared by
the SEC and the Registration Statement is declared effective under the
Securities Act. Each of the Buyer and the Company shall notify the other
promptly upon the receipt of any comments from the SEC or its staff or any other
government officials and of any request by the SEC or its staff or any other
government officials for amendments or supplements to the Registration
Statement, the Joint Proxy Statement/Prospectus or any filing pursuant to
Section 6.2(b) or for additional information and shall supply the other with
copies of all correspondence between such party or any of its representatives,
on the one hand, and the SEC, or its staff or any other government officials, on
the other hand, with respect to the Registration Statement, the Joint Proxy
Statement/Prospectus, the Merger or any filing pursuant to Section 6.2(b). Each
of the Buyer and the Company shall use its reasonable best efforts to cause all
documents that it is responsible for filing with the SEC or other regulatory
authorities under this Section 6.2 to comply in all material respects with all
applicable requirements of law and the rules and regulations promulgated
thereunder. Whenever any event occurs which is required to be set forth in an
amendment or supplement to the Joint Proxy Statement/Prospectus, the
Registration Statement or any filing pursuant to Section 6.2(b), the Buyer or
the Company, as the case may be, shall promptly inform the other of such
occurrence and cooperate in filing with the SEC or its staff or any other
government officials, and/or mailing to stockholders of the Company, of such
amendment or supplement.
(b) The Buyer and the Company shall promptly make all necessary filings
with respect to the Merger under the Securities Act, the Exchange Act,
applicable state blue sky laws and the rules and regulations thereunder.
6.3 NASDAQ QUOTATION. The Company agrees to use its reasonable best efforts
to continue the quotation of the Company Common Stock on the Nasdaq National
Market during the term of this Agreement.
6.4 ACCESS TO INFORMATION.
(a) The Company shall (and shall cause each of its Subsidiaries to)
afford to the Buyer's officers, employees, accountants, counsel and other
representatives, reasonable access, upon reasonable advance notice, during
normal business hours during the period prior to the Effective Time, to all its
properties, books, contracts, commitments, personnel and records and, during
such period, the Company shall (and shall cause each of its Subsidiaries to)
furnish promptly to the Buyer (a) a copy of each report, schedule, registration
statement and other document filed or received by it during such period pursuant
to the requirements of federal or state securities laws and (b) all other
information concerning its business, properties, assets and personnel as the
Buyer may reasonably request. The Buyer will hold any such information which is
nonpublic in confidence in accordance with the Confidentiality Agreement. No
information or knowledge obtained in any investigation pursuant to this Section
or otherwise shall affect or be deemed to modify any representation or warranty
contained in this Agreement or the conditions to the obligations of the parties
to consummate the Merger.
(b) In the event that the Company reasonably believes that the Buyer or
the Transitory Subsidiary has materially breached one or more of their
respective representations or
- 40 -
warranties under this Agreement, the Buyer shall (and shall cause each of its
Subsidiaries to) afford the Company's officers, employees, accountants, counsel
and other representatives reasonable access, upon reasonable advance notice,
during normal business hours during the period prior to the Effective Time, to
all its properties, books, contracts, commitments, personnel and records;
provided that such access shall be afforded solely to the extent that such
access is necessary to determine the existence of such a breach of one or more
representations or warranties of the Buyer or the Transitory Subsidiary under
this Agreement. The Company will hold any such information which is nonpublic in
confidence in accordance with the Confidentiality Agreement. No information or
knowledge obtained in any investigation pursuant to this Section or otherwise
shall affect or be deemed to modify any representation or warranty contained in
this Agreement or the conditions to the obligations of the parties to consummate
the Merger.
(c) Notwithstanding anything to the contrary in this Section 6.4(c),
neither party hereto nor any of their Subsidiaries shall be required to provide
access to or to disclose information where such access or disclosure would
contravene any law, rule, regulation, order, judgment or decree, or, in the
event of any litigation or threatened litigation between the parties over the
terms of this Agreement, where such access to information may be adverse to the
interests of such party.
6.5 STOCKHOLDERS MEETINGS.
(a) The Company, acting through the Company Board, shall take all
actions in accordance with applicable law (including all applicable requirements
of the Code and ERISA with respect to the shares of Company Common Stock held by
any Company Employee Plan) and its Certificate of Incorporation and By-laws to
promptly and duly call, give notice of, convene and hold as promptly as
practicable, and in any event within 45 days after the declaration of
effectiveness of the Registration Statement, the Company Stockholders Meeting
for the purpose of considering and voting upon the Company Voting Proposal.
Subject to Section 6.1(b), to the fullest extent permitted by applicable law,
(i) the Company Board shall recommend approval and adoption of the Company
Voting Proposal by the stockholders of the Company and include in the Joint
Proxy Statement/Prospectus such recommendation, and (ii) neither the Company
Board nor any committee thereof shall withdraw or modify, or propose or resolve
to withdraw or modify in a manner adverse to the Buyer, the recommendation of
the Company Board that the Company's stockholders vote in favor of the Company
Voting Proposal. The Company shall take all action that is both reasonable and
lawful to solicit from its stockholders proxies in favor of the Company Voting
Proposal and shall take all other action necessary or advisable to secure the
vote or consent of the Company Stockholders required by the rules of the Nasdaq
Stock Market or the DGCL to obtain such approvals. Notwithstanding anything to
the contrary contained in this Agreement, after consultation with the Buyer, the
Company may adjourn or postpone the Company Stockholders Meeting to the extent
necessary to ensure that any required supplement or amendment to the Joint Proxy
Statement/Prospectus is provided to the Company's stockholders or, if as of the
time for which the Company Stockholders Meeting is originally scheduled (as set
forth in the Joint Proxy Statement/Prospectus) there are insufficient shares of
Company Common Stock represented
- 41 -
(either in person or by proxy) to constitute a quorum necessary to conduct the
business of the Company Stockholders Meeting.
(b) The Buyer, acting through the Buyer Board, shall take all actions in
accordance with applicable law (including all applicable requirements of the
Code and ERISA) and its Articles of Organization and By-laws to promptly and
duly call, give notice of, convene and hold as promptly as practicable, and in
any event within 45 days after the declaration of effectiveness of the
Registration Statement, the Buyer Stockholders Meeting for the purpose of voting
to approve the issuance of the shares of Buyer Common Stock to be issued in the
Merger (the "Buyer Voting Proposal"). The Buyer Board shall (i) recommend
approval of the Buyer Voting Proposal and include in the Joint Proxy
Statement/Prospectus such recommendation and (ii) take all reasonable and lawful
action to solicit and obtain such approval, provided that the Buyer may withdraw
such recommendation if the Buyer Board in good faith (after consultation with
outside counsel) determines that it is required to do so to comply with its
fiduciary duties. Notwithstanding anything to the contrary contained in this
Agreement, after consultation with the Company, the Buyer may adjourn or
postpone the Buyer Stockholders Meeting to the extent necessary to ensure that
any required supplement or amendment to the Joint Proxy Statement/Prospectus is
provided to the Buyer's stockholders or, if as of the time for which the Buyer
Stockholders Meeting is originally scheduled (as set forth in the Joint Proxy
Statement/Prospectus) there are insufficient shares of Buyer Common Stock
represented (either in person or by proxy) to constitute a quorum necessary to
conduct the business of the Buyer Stockholders Meeting. The Buyer, as the sole
stockholder of the Transitory Subsidiary, shall approve this Agreement.
6.6 [Intentionally Omitted]
6.7 LEGAL CONDITIONS TO THE MERGER.
(a) Subject to the terms hereof, including Section 6.7(b) and Section
6.7(c), the Company and the Buyer shall each use its commercially reasonable
best efforts to take, or cause to be taken, all actions, and do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective the Merger and
the other transactions contemplated hereby as promptly as practicable, but in
any event before the Outside Date, including to: (i) obtain from any
Governmental Entity or any other third party any consents, licenses, permits,
waivers, approvals, authorizations, or orders required to be obtained or made by
the Company or the Buyer or any of their Subsidiaries in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, (ii) make all necessary filings, and
thereafter make any other required submissions, with respect to this Agreement
and the Merger required under (A) the Securities Act and the Exchange Act, and
any other applicable federal or state securities laws, (B) the HSR Act and any
related governmental request thereunder, and (C) any other applicable law
(domestic or foreign), (iii) use commercially reasonable best efforts in the
defense of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the Merger or
the other transactions contemplated by this Agreement, including seeking to have
any stay or temporary restraining
- 42 -
order entered by any court or other Governmental Entity vacated or reversed, and
(iv) execute or deliver any additional instruments necessary to consummate the
transactions contemplated by, and to fully carry out the purposes of, this
Agreement. The Company and the Buyer shall cooperate with each other in
connection with the making of all such filings, including providing copies of
all such documents to the non-filing party and its advisors prior to filing and,
if requested, to accept all reasonable additions, deletions or changes suggested
in connection therewith. The Company and the Buyer shall use their respective
commercially reasonable best efforts to furnish to each other all information
required for any application or other filing to be made pursuant to the rules
and regulations of any applicable law (including all information required to be
included in the Joint Proxy Statement/Prospectus and the Registration Statement)
in connection with the transactions contemplated by this Agreement. For the
avoidance of doubt, the Buyer and the Company agree that nothing contained in
this Section 6.7(a) shall modify or affect their respective rights and
responsibilities under Section 6.7(b) or Section 6.7(c).
(b) Subject to the terms hereof, the Buyer and the Company agree, and
shall cause each of their respective Subsidiaries, to cooperate and to use their
respective commercially reasonable best efforts to obtain any government
clearances or approvals required for Closing under the HSR Act, the Xxxxxxx Act,
as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as
amended, and any other federal, state or foreign law or, regulation or decree
designed to prohibit, restrict or regulate actions for the purpose or effect of
monopolization or restraint of trade (collectively "Antitrust Laws"), to respond
to any government requests for information under any Antitrust Law, and to
contest and resist any action, including any legislative, administrative or
judicial action, and to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order (whether temporary, preliminary or
permanent) (an "Antitrust Order") that restricts, prevents or prohibits the
consummation of the Merger or any other transactions contemplated by this
Agreement under any Antitrust Law. The parties hereto will consult and cooperate
with one another, and consider in good faith the views of one another, in
connection with any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on behalf of any party
hereto in connection with proceedings under or relating to any Antitrust Law.
The Buyer shall be entitled to direct any proceedings or negotiations with any
Governmental Entity relating to any of the foregoing, provided that it shall
afford the Company an opportunity to fully participate therein as contemplated
by this Section 6.7. Notwithstanding anything in this Agreement to the contrary,
except as expressly provided in Section 6.7(c), neither the Buyer nor any of its
Affiliates shall be under any obligation to make proposals, execute or carry out
agreements or submit to orders providing for the sale or other disposition or
holding separate (through the establishment of a trust or otherwise) of any
assets or categories of assets of the Buyer, any of its Affiliates or the
Company or any of its Subsidiaries or the holding separate of the shares of
Company Common Stock (or shares of stock of the Surviving Corporation) or
imposing or seeking to impose any material limitation on the ability of the
Buyer or any of its Subsidiaries or Affiliates to conduct their business or own
such assets or to acquire, hold or exercise full rights of ownership of the
shares of Company Common Stock (or shares of stock of the Surviving
Corporation). In furtherance and not in limitation of the foregoing, each of the
Buyer and the Company agrees to make an appropriate filing of a Notification and
Report Form pursuant to the HSR Act (and to make such other filings as are
required under the Antitrust
- 43 -
Laws) with respect to the Merger as promptly as reasonably practicable (but not
later than 15 business days) after the date hereof and to supply as promptly as
reasonably practicable any additional information and documentary material that
may be requested pursuant to the HSR Act (or pursuant to other Antitrust Laws).
Each party will consult with counsel for the other party as to, and will permit
such counsel to participate fully in, any litigation referred to in this Section
6.7(b) and in Section 6.7(a)(iii) above. Each party will (x) promptly notify the
other party of any written communication to that party from any Governmental
Entity located in the U.S. and, to the extent practicable, outside of the U.S.
and, subject to applicable law, if practicable, permit the other party to review
in advance any proposed written communication to any such Governmental Entity
and incorporate the other party's reasonable comments, (y) not agree to
participate in any substantive meeting or discussion with any such Governmental
Entity in respect of any filing, investigation or inquiry concerning this
Agreement or the Merger unless, to the extent reasonably practicable, it
consults with the other party in advance and, to the extent permitted by such
Governmental Entity, gives the other party the opportunity to attend and (z)
furnish the other party with copies of all correspondence, filings and written
communications between them and their Affiliates and their respective
Representatives on one hand, and any such Governmental Entity or its respective
staff on the other hand, with respect to this Agreement and the Merger, except
that any materials concerning the Buyer's valuation of the Company or the
Company's valuation of the transaction may be redacted and internal financial
information of the Buyer may be provided to the Company's counsel on an outside
counsel basis only.
(c) If required to obtain clearances or approvals of the Merger under
Antitrust Laws, the Buyer and its Subsidiaries shall agree to: (i) a sale,
transfer, license, separate holding, divestiture or other disposition of or (ii)
a prohibition of, or a limitation on, the acquisition, ownership, operation,
effective control or exercise of full rights of ownership of (the matters
specified in clauses (i) and (ii) a "Divestiture"), any asset or assets of the
Buyer, the Company or any of their respective Subsidiaries that individually or
in the aggregate would not be material in relation to the continuing operations
of the combined U.S. businesses of the Company and the Buyer and their
consolidated Subsidiaries, but shall not be required to agree to any Divestiture
that is so material. Solely for purposes of this Section 6.7(c), a Divestiture
will be deemed material in relation to the continuing operations of the combined
U.S. businesses of the Company and the Buyer and their consolidated Subsidiaries
if the Divestiture relates to assets that generated in excess of $30 million of
the total consolidated sales of the Buyer and the Company in fiscal year 2000,
but will be deemed not to be material if the Divestiture relates to assets that
generated $30 million or less of the total consolidated sales of the Buyer and
the Company in fiscal year 2000.
(d) Each of the Company and the Buyer shall give (or shall cause their
respective Subsidiaries to give) any notices to third parties, and use, and
cause their respective Subsidiaries to use, their commercially reasonable best
efforts to obtain any third party consents related to or required in connection
with the Merger that are (A) necessary to consummate the transactions
contemplated hereby, (B) disclosed or required to be disclosed in the Company
Disclosure Schedule or the Buyer Disclosure Schedule, as the case may be, or (C)
required to prevent a Company Material Adverse Effect or a Buyer Material
Adverse Effect from occurring prior to or after the Effective Time, it being
understood that neither the Company nor the Buyer (or any of
- 44 -
their respective Subsidiaries) shall be required to make any cash payments or
grant any concessions to third parties in connection with the fulfillment of its
obligations under this Section 6.7 (except as otherwise expressly set forth in
this Section 6.7). The actions of each of the Buyer and the Company with respect
to the foregoing shall be reasonably calculated to facilitate consummation of
the Merger by the Outside Date.
6.8 PUBLIC DISCLOSURE. Except as may be required by law or stock market
regulations, (i) the press release announcing the execution of this Agreement
shall be issued only in such form as shall be mutually agreed upon by the
Company and the Buyer and (ii) the Buyer and the Company shall each use its
commercially reasonable efforts to consult with the other party before issuing
any other press release or otherwise making any public statement with respect to
the Merger or this Agreement and shall not issue any such press release or make
any such public statement prior to using such efforts.
6.9 REORGANIZATION. The Buyer and the Company shall each use its
commercially reasonable best efforts to cause the Merger to be treated as a
reorganization within the meaning of Section 368(a) of the Code. The parties
hereto hereby adopt this Agreement as a plan of reorganization.
6.10 AFFILIATE AGREEMENTS. Schedule 6.10 of the Company Disclosure Schedule
sets forth a list of those persons who are, in the Company's reasonable
judgment, Rule 145 Affiliates of the Company. The Company shall notify the Buyer
in writing regarding any change in the identity of its Rule 145 Affiliates prior
to the Closing Date. The Company shall use its commercially reasonable efforts
to deliver or cause to be delivered to the Buyer as soon as practicable after
the date of this Agreement (and in any case prior to the mailing of the Joint
Proxy Statement/Prospectus Company Stockholder Meeting) from each of its Rule
145 Affiliates, an executed Affiliate Agreement, in substantially the form
appended hereto as EXHIBIT D (the "Affiliate Agreement"). The Buyer shall be
entitled to place appropriate legends on the certificates evidencing any shares
of Buyer Common Stock to be received by Rule 145 Affiliates of the Company
pursuant to the terms of this Agreement and, subject to the terms of the
Stockholder's Agreement, to issue appropriate stop transfer instructions to the
transfer agent for the Buyer Common Stock (provided that such legends or stop
transfer instructions shall be removed, one year after the Effective Time, upon
the request of any holder of shares of Buyer Common Stock issued in the Merger
that is not then a Rule 145 Affiliate of the Buyer).
6.11 NYSE LISTING. The Buyer shall use its commercially reasonable best
efforts to cause the shares of Buyer Common Stock to be issued in the Merger to
be listed on the NYSE, subject to official notice of issuance, on or prior to
the Closing Date.
6.12 EMPLOYEE MATTERS.
(a) At the Effective Time, each outstanding Company Stock Option
under Company Stock Plans (other than the Company's Employee Stock Purchase Plan
(the "ESPP")), whether vested or unvested, and the Company Stock Plans (other
than the ESPP), insofar as they relate to outstanding Company Stock Options,
shall be assumed by the Buyer and shall be
- 45 -
deemed to constitute an option to acquire, on the same terms and conditions as
were applicable under the Company Stock Option immediately prior to the
Effective Time, such number of shares of Buyer Common Stock as is determined by
multiplying the number of shares of Company Common Stock subject to such Company
Stock Option immediately prior to the Effective Time by the Exchange Ratio and
rounded up to the nearest whole number, at a price per share and rounded down to
the nearest whole cent equal to (y) the exercise price per share of Company
Common Stock at which such Company Stock Option was exercisable immediately
prior to the Effective Time divided by (z) the Exchange Ratio.
(b) As soon as practicable after the Effective Time, the Buyer shall
deliver to the participants in the Company Stock Plans (other than the ESPP)
appropriate notice setting forth such participants' rights pursuant thereto. All
grants made pursuant to the Company Stock Plans (other than the ESPP) shall
continue in effect on the same terms and conditions (subject to the adjustments
required by this Section 6.12 after giving effect to the Merger).
(c) The Buyer shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Buyer Common Stock for delivery upon
exercise of the Company Stock Plans (other than the ESPP) assumed in accordance
with this Section. As soon as practicable after the Effective Time, the Buyer
shall file a registration statement on Form S-8 (or any successor form) or
another appropriate form with respect to the shares of Buyer Common Stock
subject to such options and shall use its commercially reasonable efforts to
maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such options remain outstanding.
(d) From and after the Effective Time, the Surviving Corporation shall
honor all Company Employee Plans (other than the ESPP) in accordance with their
terms as in effect on the date of this Agreement, subject to any amendment or
termination thereof that may be permitted by such terms. The Surviving
Corporation shall provide, or shall cause to be provided, to persons who are,
immediately before the Effective Time, employees of the Company and its
Subsidiaries (the "Company Employees") (i) in the case of Company Employees
employed in the United States, compensation and employee benefits that are, in
the aggregate, not materially less favorable than those provided by the Buyer to
its similarly situated employees and (ii) in the case of the Company Employees
employed outside the United States, compensation and any employee benefits that
are, in the aggregate, not materially less favorable than, at the option of the
Buyer, either (A) those provided by the Buyer to its similarly situated
employees or (B) those provided by the Company to such non-U.S. Company
Employees immediately prior to the Effective Time. The foregoing shall not be
construed to prevent (X) the termination of employment of any Company Employee
at any time after the Effective Time, (Y) the amendment or termination of any
Company Employee Plan at any time after the Effective Time or (Z) during the
period beginning immediately after the Effective Time and ending on December 31,
2001, the provision of benefits, other than 401(k) benefits, under Company
Employee Plans as in existence immediately before the Effective Time.
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(e) For all purposes under the employee benefit plans of the Buyer and
its Affiliates providing benefits to any Company Employees after the Effective
Time (the "New Plans"), each Company Employee shall be credited with his or her
years of service with the Company and its Affiliates before the Effective Time
for purposes of participation, vesting and benefit levels where length of
services is relevant to benefit levels, but not for benefit accrual under any
defined benefit plan or any accrual that would result in any duplication of
benefits, to the same extent as such Company Employee was entitled, before the
Effective Time, to credit for such service under any similar Company Employee
Plans, except to the extent such credit would result in a duplication of
benefits. In addition, and without limiting the generality of the foregoing: (i)
each Company Employee shall be immediately eligible to participate, without any
waiting time, in any and all New Plans (other than the Buyer's 401(k) plan) to
the extent coverage under such New Plan replaces coverage under a comparable
Company Employee Plan in which such Company Employee participated immediately
before the Effective Time (such plans, collectively, the "Old Plans"); and (ii)
for purposes of each New Plan providing medical, dental, pharmaceutical and/or
vision benefits to any Company Employee, the Buyer shall cause all pre-existing
condition exclusions and actively-at-work requirements of such New Plan to be
waived for such employee and his or her covered dependents, and the Buyer shall
use commercially reasonable efforts to cause any eligible expenses incurred by
such employee and his or her covered dependents during the portion of the plan
year of the Old Plan ending on the date such employee's participation in the
corresponding New Plan begins to be taken into account under such New Plan for
purposes of satisfying all deductible, coinsurance and maximum out-of-pocket
requirements applicable to such employee and his or her covered dependents for
the applicable plan year as if such amounts had been paid in accordance with
such New Plan. Company Employees who are participants in the Company's 401(k)
Plan immediately prior to the earlier of (i) the termination of such Plan
pursuant to Section 6.18 hereof or (ii) the Closing, shall be eligible to
participate in Buyer's 401(k) Plan as soon as reasonably feasible after the
Closing. Notwithstanding the preceding sentence, such participation shall occur
no later than 10 days after the Closing, provided that the Company has given the
Buyer such access to the appropriate Company Employees as is reasonably needed
substantially to complete the enrollment process in the Buyer's 401(k) Plan
prior to the Closing.
(f) The Buyer acknowledges and agrees that immediately following the
Effective Time, each of the individuals listed in Section 6.12(f) of the Company
Disclosure Schedule will have experienced "Good Reason" within the meaning of
the employment agreement listed next to such individual's name in Section
6.12(f) of the Company Disclosure Schedule; provided, that the foregoing shall
not be deemed to be an admission by the Company or the Buyer for any other
purpose. Notwithstanding any other provision of this Agreement, each such
individual shall be considered a third-party beneficiary of this Section 6.12(f)
with the right to enforce this Section 6.12(f) against the Buyer.
(g) The Company shall terminate the ESPP in accordance with its terms
immediately prior to the Effective Time and the participants in the ESPP shall
be permitted to exercise any then outstanding options thereunder at such time.
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6.13 STOCKHOLDER LITIGATION. Until the earlier of the termination of this
Agreement in accordance with its terms or the Effective Time, the Company shall
afford the Buyer the opportunity to participate, at its expense and with
separate counsel, in the defense or settlement of any stockholder litigation
against the Company or the Company Board relating to this Agreement or any of
the transactions contemplated by this Agreement, and shall not settle any such
litigation without the Buyer's prior written consent, which will not be
unreasonably withheld or delayed.
6.14 REPRESENTATION ON BUYER BOARD. The Buyer shall take any and all
actions necessary or appropriate to cause the number of directors comprising the
Buyer's board of directors at the Effective Time to be sufficient to permit
Xxxxxx X. Xxxxxx to serve thereon (the "Stockholder Designee"), and to cause the
Stockholder Designee to be elected to serve on the Buyer's board of directors as
provided in the Stockholder's Agreement.
6.15 INDEMNIFICATION.
(a) From and after the Effective Time, the Buyer shall, to the fullest
extent permitted by law for a period of six years from the Effective Time,
indemnify, hold harmless and provide advancement of expense to, each present and
former director and officer of the Company (the "Indemnified Parties"), against
any costs or expenses (including attorneys' fees), judgments, fines, losses,
claims, damages, liabilities or amounts paid in settlement incurred in
connection with any claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative, arising out of or pertaining
to matters existing or occurring at or prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the extent that
such obligations to indemnify, hold harmless and advance expenses exist under
the DGCL, the Company's Certificate of Incorporation or By-laws or any contract
binding the Company and listed on Section 6.15(a) of the Company Disclosure
Schedule on the date of this Agreement.
(b) For a period of six years after the Effective Time, the Buyer shall
cause the Surviving Corporation to maintain (to the extent available in the
market) in effect a directors' and officers' liability insurance policy covering
those persons who are currently covered by the Company's directors' and
officers' liability insurance policy (a complete and accurate copy of which has
been made available to the Buyer prior to the date of this Agreement) with
coverage in amount and scope at least as favorable to such persons as the
Company's existing coverage; provided, that in no event shall the Buyer or the
Surviving Corporation be required to expend in excess of 200% of the annual
premium currently paid by the Company for such coverage, which current annual
premium is set forth on Schedule 6.15(b) to this Agreement.
(c) Notwithstanding any other provision of this Agreement, each of the
Indemnified Parties and the persons referred to in clause (b) above shall be
considered a third-party beneficiary of this Section 6.15 with the right to
enforce this Section 6.15 against the Buyer.
6.16 NOTIFICATION OF CERTAIN MATTERS. The Buyer shall use commercially
reasonable best efforts to give reasonably prompt notice to the Company, and the
Company shall use
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commercially reasonable best efforts to give reasonably prompt notice to the
Buyer, of the occurrence, or failure to occur, of any event, which occurrence or
failure to occur would be reasonably likely to result in (a) a breach of any
representation or warranty of such party contained in this Agreement or (b) the
failure of any covenant, condition or agreement to be complied with or satisfied
by such party under this Agreement. Notwithstanding the above, the delivery of
any notice pursuant to this Section will not limit or otherwise affect the
remedies available hereunder to the party receiving such notice or the
conditions to such party's obligation to consummate the Merger.
6.17 EXEMPTION FROM LIABILITY UNDER SECTION 16(b).
(a) The board of directors of the Buyer, or a committee thereof
consisting solely of non-employee directors (as such term is defined for
purposes of Rule 16b-3(d) under the Exchange Act), shall adopt a resolution in
advance of the Effective Time providing that the receipt by the Company Insiders
of Buyer Common Stock in exchange for shares of Company Common Stock, and of
options to purchase Buyer Common Stock upon assumption and conversion of Company
Stock Options, in each case pursuant to the transactions contemplated hereby and
to the extent such securities are listed in the Section 16 Information, is
intended to be exempt pursuant to Rule 16b-3 under the Exchange Act.
(b) For purposes of Section 6.17(a), "Section 16 Information" shall
mean information regarding the Company Insiders and the number of shares of
Company Common Stock or other Company equity securities deemed to be
beneficially owned by each such Company Insider and expected to be exchanged for
Buyer Common Stock, and options to purchase Buyer Common Stock, in each case, in
connection with the Merger, which shall be provided by the Company to the Buyer
within 10 business days after the date of this Agreement.
(c) For purposes of Section 6.17(a), "Company Insiders" shall mean
those officers and directors of the Company who are subject to the reporting
requirements of Section 16(a) of the Exchange Act as listed in the Section 16
Information.
6.18 TERMINATION OF 401(k) PLAN. At the request of the Buyer, the Company
shall terminate its 401(k) Plan no later than one day prior to the Closing Date.
Buyer shall cause the Buyer's 401(k) Plan to permit the Company Employees to
roll over their account balances from the Company's 401(k) Plan into the Buyer's
401(k) Plan after the Company has received a favorable determination letter from
the Internal Revenue Service with respect to the termination of Company's 401(k)
Plan.
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ARTICLE VII
CONDITIONS TO MERGER
7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction or waiver on or prior to the Closing Date
of the following conditions:
(a) STOCKHOLDER APPROVAL. The Company Voting Proposal shall have been
approved and adopted at the Company Stockholders Meeting, at which a quorum is
present, by the requisite vote of the stockholders of the Company under
applicable law and the Company's Certificate of Incorporation and By-laws. The
Buyer Voting Proposal shall have been approved at the Buyer Stockholders
Meeting, at which a quorum is present, by the requisite vote of the
stockholders of the Buyer under applicable law and the Buyer's Articles of
Organization and By-laws.
(b) HSR ACT. The waiting period applicable to the consummation of the
Merger under the HSR Act shall have expired or been terminated.
(c) GOVERNMENTAL APPROVALS. Other than the filing of the Certificate of
Merger, all authorizations, consents, orders or approvals of, or declarations or
filings with, or expirations of waiting periods imposed by, any Governmental
Entity in connection with the Merger and the consummation of the other
transactions contemplated by this Agreement, the failure of which to file,
obtain or occur would reasonably be expected to result in a Buyer Material
Adverse Effect or a Company Material Adverse Effect, shall have been filed, been
obtained or occurred.
(d) REGISTRATION STATEMENT; JOINT PROXY STATEMENT/PROSPECTUS. The
Registration Statement shall have become effective under the Securities Act and
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose, and no similar proceeding
with respect to the Joint Proxy Statement/Prospectus, shall have been initiated
or threatened in writing by the SEC or its staff.
(e) NO INJUNCTIONS. No Governmental Entity of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any order,
executive order, stay, decree, judgment or injunction (preliminary or permanent)
or statute, rule or regulation which is in effect and which has the effect of
making the Merger illegal or otherwise prohibiting consummation of the Merger
and the other transactions contemplated by this Agreement.
(f) NYSE. The shares of Buyer Common Stock to be issued in the Merger
shall have been approved for listing on the NYSE, subject only to official
notice of issuance (in the case of the Buyer, provided it has fully complied
with the provisions of Section 6.11 hereof).
7.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE BUYER AND THE TRANSITORY
SUBSIDIARY. The obligations of the Buyer and the Transitory Subsidiary to effect
the Merger are subject to the
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satisfaction on or prior to the Closing Date of each of the following additional
conditions, any of which may be waived in writing exclusively by the Buyer and
the Transitory Subsidiary:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company set forth in this Agreement shall be true and correct (X) as of
the date of this Agreement and (Y) (except to the extent such representations
and warranties speak as of an earlier date) as of the Closing Date as though
made on and as of the Closing Date, except (i) in the case of clause (Y), for
changes expressly contemplated by this Agreement and (ii) in the case of both
clauses (X) and (Y) (other than with respect to (A) the first four sentences of
Section 3.2(a); clause (i) of the first sentence and the second sentence of
Section 3.2(b); clause (A) of the fourth sentence of Section 3.2(b); clause (x)
of the fifth sentence of Section 3.2(b); the first sentence of Section 3.2(c);
clause (A) of the second sentence of 3.2(c); the second sentence of Section
3.2(d); and Section 3.2(e) and (B) as to any representation or warranty that to
the Company's knowledge was false when made (giving effect to, for purposes of
this clause (B), qualifications as to materiality and Company Material Adverse
Effect in such representations and warranties)) where the failures to be true
and correct, individually or in the aggregate and without regard to any
qualifications as to materiality or Company Material Adverse Effect contained in
such representations and warranties, have not resulted in and would not
reasonably be expected to result in, a Company Material Adverse Effect; and the
Buyer shall have received a certificate signed on behalf of the Company by the
chief executive officer and the chief financial officer of the Company to such
effect.
(b) PERFORMANCE OF OBLIGATIONS OF THE COMPANY. The Company shall have
performed in all material respects all obligations required to be performed by
it under this Agreement on or prior to the Closing Date; and the Buyer shall
have received a certificate signed on behalf of the Company by the chief
executive officer and the chief financial officer of the Company to such effect.
(c) TAX OPINION. The Buyer shall have received a written opinion from
Xxxx and Xxxx LLP, counsel to the Buyer, to the effect that the Merger will be
treated for federal income tax purposes as a reorganization within the meaning
of Section 368(a) of the Code (it being agreed that the Buyer and the Company
shall each provide reasonable cooperation, including making reasonable
representations, to Xxxx and Xxxx LLP to enable them to render such opinion).
(d) THIRD PARTY CONSENTS. The Company shall have obtained (i) all consents
and approvals of third parties listed on Schedule 7.2(d) hereof and (ii) any
other consent or approval of any third party (other than a Governmental Entity),
required in connection with this Agreement and the transactions contemplated
hereby, other than (in the case of clause (ii)) consents or approvals which if
not obtained would not, individually or in the aggregate, reasonably be expected
to result in a Company Material Adverse Effect.
(e) NO RESTRAINTS. Except as would not, individually or in the aggregate,
reasonably be expected to result in a Company Material Adverse Effect or a Buyer
Material Adverse Effect (which includes for this purpose any Divestiture that is
material as defined in
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Section 6.7(c) but which does not include for this purpose any Divestiture that
is not material as defined in Section 6.7(c)), there shall not be instituted or
pending any action or proceeding by any Governmental Entity (i) seeking to
restrain, prohibit or otherwise interfere with the ownership or operation by the
Buyer or any of its Subsidiaries of all or any portion of the business of the
Company or any of its Subsidiaries or of the Buyer or any of its Subsidiaries or
to compel the Buyer or any of its Subsidiaries to dispose of or hold separate
all or any portion of the business or assets of the Company or any of its
Subsidiaries or of the Buyer or any of its Subsidiaries, (ii) seeking to impose
or confirm limitations on the ability of the Buyer or any of its Subsidiaries
effectively to exercise full rights of ownership of the shares of Company Common
Stock (or shares of stock of the Surviving Corporation) including the right to
vote any such shares on any matters properly presented to stockholders or (iii)
seeking to require divestiture by the Buyer or any of its Subsidiaries of any
such shares. Nothing contained in this Section 7.2(e) is intended to modify the
provisions of Section 6.7(c).
7.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligation of
the Company to effect the Merger is subject to the satisfaction on or prior to
the Closing Date of each of the following additional conditions, any of which
may be waived, in writing, exclusively by the Company:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Buyer and the Transitory Subsidiary set forth in this Agreement shall be
true and correct (X) as of the date of this Agreement and (Y) (except to the
extent such representations speak as of an earlier date) as of the Closing Date
as though made on and as of the Closing Date, except (i) in the case of clause
(Y), for changes expressly contemplated by this Agreement and (ii) in the case
of both clauses (X) and (Y) (other than with respect to (A) Section 4.2(a); the
first sentence of Section 4.2(b); clause (A) of the second sentence of Section
4.2(b); and Section 4.2(c) and (B) as to any representation or warranty that to
the Buyer's knowledge was false when made (giving effect to, for purposes of
this clause (B), qualification as to materiality and Company Material Adverse
Effect in such representations and warranties)) where the failures to be true
and correct, individually or in the aggregate and without regard to any
qualifications as to materiality or Buyer Material Adverse Effect contained in
such representations and warranties, have not resulted in, and would not
reasonably be expected to result in, a Buyer Material Adverse Effect; and the
Company shall have received a certificate signed on behalf of the Buyer by the
chief executive officer or the chief financial officer of the Buyer to such
effect.
(b) PERFORMANCE OF OBLIGATIONS OF THE BUYER AND THE TRANSITORY
SUBSIDIARY. The Buyer and the Transitory Subsidiary shall have performed in all
material respects all obligations required to be performed by them under this
Agreement on or prior to the Closing Date; and the Company shall have received a
certificate signed on behalf of the Buyer by the chief executive officer or the
chief financial officer of the Buyer to such effect.
(c) TAX OPINION. The Company shall have received the opinion of Wachtell,
Lipton, Xxxxx & Xxxx, counsel to the Company, to the effect that the Merger will
be treated for federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Code (it being agreed that the Buyer and the
Company shall each provide reasonable
- 52 -
cooperation, including making reasonable representations, to Wachtell, Lipton,
Xxxxx & Xxxx to enable them to render such opinion).
(d) REPRESENTATION ON BUYER BOARD. The Stockholder Designee shall have
been elected to serve on the Buyer's board of directors in accordance with
Section 6.14 of this Agreement.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 TERMINATION. This Agreement may be terminated at any time prior to the
Effective Time (with respect to Sections 8.1(b) through 8.1(k), by written
notice by the terminating party to the other party) as follows:
(a) by mutual written consent of the Buyer and the Company; or
(b) by either the Buyer or the Company, if the Merger shall not have
been consummated by December 31, 2001 (the "Outside Date"); provided, however,
that the Outside Date shall be extended to and be deemed to be February 15, 2002
(plus an additional calendar day for each calendar day beyond five business days
after the date of this Agreement that passes until the Buyer files its
Notification and Report Form pursuant to the HSR Act) if on December 31, 2001
the condition specified in Section 7.1(b) shall not have been satisfied, the
condition specified in Section 7.1(c) shall not have been satisfied with respect
to one or more Antitrust Laws or the condition specified in Section 7.2(e) shall
not have been satisfied as a result of an action or proceeding by any
Governmental Entity instituted or pending relating to Antitrust Laws (provided
that the right to terminate this Agreement under this Section 8.1(b) shall not
be available to any party whose failure to fulfill any obligation under this
Agreement has been a principal cause of or resulted in the failure of the Merger
to occur on or before the Outside Date); or
(c) by either the Buyer or the Company, if a Governmental Entity of
competent jurisdiction shall have issued a nonappealable final order, decree or
ruling or taken any other nonappealable final action, in each case having the
effect of permanently restraining, enjoining or otherwise prohibiting the Merger
(provided that the right to terminate this Agreement under this Section 8.1(c)
shall not be available to any party whose material failure to fulfill any
obligation under this Agreement, including Section 6.7, has been the principal
cause of or resulted in such order, decree ruling or action); or
(d) by the Buyer, if any person or group (as defined in Section
13(d)(3) under the Exchange Act) (other than the Buyer, Transitory Subsidiary or
any of their respective Affiliates) shall have become the beneficial owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of at least a majority
of the outstanding shares of Company Common Stock; or
(e) by either the Buyer or the Company, if at the Company Stockholders
Meeting (including any adjournment or postponement thereof permitted by this
Agreement) at which a
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vote on the Company Voting Proposal is taken, the requisite vote of the
stockholders of the Company in favor of the Company Voting Proposal shall not
have been obtained (provided that the right to terminate this Agreement under
this Section 8.1(e) shall not be available to the Company if (x) at such time
the Company is in breach of or has failed to fulfill its obligations under this
Agreement, (y) the Company Board (or any committee thereof) shall have withdrawn
or proposed to withdraw or knowingly modified in a material adverse manner or
proposed to knowingly modify in a material adverse manner its recommendation of
the Company Voting Proposal or (z) the failure to obtain the requisite vote has
been caused by a breach of the Stockholder's Agreement or any Voting Agreement
by any party thereto other than the Buyer); or
(f) by either the Buyer or the Company, if at the Buyer Stockholders
Meeting (including any adjournment or postponement thereof permitted by this
Agreement) at which a vote on the Buyer Voting Proposal is taken, the requisite
vote of the stockholders of the Buyer in favor of the Buyer Voting Proposal
shall not have been obtained (provided the right to terminate this Agreement
shall not be available to the Buyer if, at such time, the Buyer is in breach of
or has failed to fulfill its obligations under this Agreement); or
(g) by the Buyer, if: (i) the Company Board (or any committee thereof)
shall have withdrawn or knowingly modified in a material adverse manner its
recommendation of the Company Voting Proposal or (ii) the Company Board (or any
committee thereof) fails to reconfirm its recommendation of the Company Voting
Proposal within five days after the Buyer so requests in writing (which five day
period will be extended for an additional five days if the Company certifies to
the Buyer prior to the expiration of the initial five day period that the
Company Board is in good faith seeking to obtain additional information
regarding its decision to reconfirm its recommendation of the Company Voting
Proposal); or
(h) by the Company, if: (i) the Buyer Board (or any committee thereof)
shall have withdrawn or knowingly modified in a material adverse manner its
recommendation of the Buyer Voting Proposal or (ii) the Buyer Board (or any
committee thereof) fails to reconfirm its recommendation of the Buyer Voting
Proposal within five days after the Company so requests in writing (which five
day period will be extended for an additional five days if the Buyer certifies
to the Company prior to the expiration of the initial five day period that the
Buyer Board is in good faith seeking to obtain additional information regarding
its decision to reconfirm its recommendation of the Buyer Voting Proposal);
(i) by the Company, if, prior to the Company Stockholders Meeting, the
Company Board (or such committee) has provided written notice to the Buyer of
its bona fide intention to enter into a binding written agreement for a Superior
Proposal; provided that:
(i) the Company shall have complied with Section 6.1 hereof in all
material respects;
(ii) the Company shall have (1) notified the Buyer in writing of
the Company's receipt of such Superior Proposal, (2) further notified the Buyer
in writing that the
- 54 -
Company intends to enter into a binding written agreement with respect to such
Superior Proposal subject to clause (iii) below, and (3) provided to the Buyer,
together with the notice set forth in clause (2), a copy of the current written
version of such Superior Proposal (or a summary containing all material terms
and conditions of such Superior Proposal);
(iii) the Buyer does not make, within two business days after receipt
of the Company's written notice pursuant to clause (ii)(2) above, an offer that
the Company Board shall have concluded in good faith (following consultation
with its financial adviser and outside counsel) is as favorable to the
stockholders of the Company as such Superior Proposal; and
(iv) the Company shall, concurrently with such termination, pay the
Buyer the termination fee required by Section 8.3(c)(ii).
(j) by the Buyer, if there has been a breach of or failure to perform any
representation, warranty, covenant or agreement on the part of the Company set
forth in this Agreement, which breach or failure to perform (i) would cause the
conditions set forth in Section 7.2(a) or 7.2(b) not to be satisfied, and (ii)
shall not have been cured within 30 days following receipt by the Company of
written notice of such breach from the Buyer; or
(k) by the Company, if there has been a breach of or failure to perform
any representation, warranty, covenant or agreement on the part of the Buyer or
the Transitory Subsidiary set forth in this Agreement, which breach or failure
to perform (i) would cause the conditions set forth in Section 7.3(a) or 7.3(b)
not to be satisfied, and (ii) shall not have been cured within 30 days following
receipt by the Buyer of written notice of such breach from the Company.
8.2 EFFECT OF TERMINATION. In the event of termination of this Agreement as
provided in Section 8.1, this Agreement shall immediately become void and there
shall be no liability or obligation on the part of the Buyer, the Company, the
Transitory Subsidiary or their respective officers, directors, stockholders or
Affiliates; provided that (i) any such termination shall not relieve any party
from liability for any willful breach of this Agreement (which includes the
making of any representation or warranty by a party in this Agreement that the
party knew was not true and accurate when made) and (ii) the provisions of
Sections 5.3 and 6.8, this Section 8.2, Section 8.3 and Article IX of this
Agreement and the Confidentiality Agreement shall remain in full force and
effect and survive any termination of this Agreement.
8.3 FEES AND EXPENSES.
(a) Except as set forth in this Section 8.3, all fees and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such fees and expenses, whether or
not the Merger is consummated; provided however, that the Company and the Buyer
shall share equally (i) the filing fee of the Buyer's pre-merger notification
report under the HSR Act and (ii) all fees and expenses, other than accountants'
and attorneys' fees, incurred with respect to the printing, filing and mailing
of the Joint Proxy Statement/Prospectus (including any related preliminary
materials) and the Registration Statement and any amendments or supplements
thereto.
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(b) (i) The Company shall pay the Buyer up to $1.5 million as
reimbursement for expenses of the Buyer actually incurred relating to the
transactions contemplated by this Agreement prior to termination (including, but
not limited to, fees and expenses of the Buyer's counsel, accountants and
financial advisors, but excluding any discretionary fees paid to such financial
advisors), upon the termination of this Agreement:
(A) pursuant to Section 8.1(e); or
(B) pursuant to Section 8.1(b) (without the Company Stockholders
Meeting having occurred) if at any time after the date of this Agreement and
before such termination an Acquisition Proposal shall have been publicly
announced and remain outstanding.
(ii) The expenses payable pursuant to Section 8.3(b)(i) shall
be paid within 10 business days after demand therefor following the occurrence
of the termination event giving rise to the payment obligation described in this
Section 8.3(b).
(c) The Company shall pay the Buyer a termination fee of $23.5 million
if:
(i) this Agreement is terminated pursuant to Section 8.1(b)
(without the Company Stockholders Meeting having occurred) or 8.1(e) if at any
time after the date of this Agreement and before such termination an Acquisition
Proposal shall have been publicly announced and remains outstanding and within
twelve months of such termination the Company enters into any definitive
agreement with respect to an Acquisition Proposal or an Acquisition Proposal
relating to the Company is consummated (provided that for purposes of this
Section 8.3(c)(i), all references to "20%" in the definition of "Acquisition
Proposal" shall be deemed to be references to "25%"); or
(ii) this Agreement is terminated pursuant to Section 8.1(d),
8.1(g) or 8.1(i); or
(iii) this Agreement is terminated pursuant to Section 8.1(j)
(x) resulting from a failure to satisfy the condition set forth in Section
7.2(a) based upon a breach of a representation or warranty by the Company, which
representation or warranty was known by the Company to be false when made, or
(y) resulting from a failure to satisfy the condition set forth in Section
7.2(b) based upon a material and knowing breach by the Company of its
obligations under this Agreement required to be performed by it on or prior to
the Closing Date;
provided, however, that if a termination fee is payable by the Company pursuant
to Section 8.3(c)(i), then the Company may reduce the amount to be paid by it
pursuant to this Section 8.3(c) by the amount of any expense reimbursement
previously paid by the Company to the Buyer pursuant to Section 8.3(b)(i)(A) or
(B).
(d) Any fee due under Section 8.3(c) shall be paid by the Company by
wire transfer of same-day funds:
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(i) in the case of Section 8.3(c)(i), on the earlier to occur of the
date on which the Company (A) enters into the definitive agreement or (B)
consummates the Acquisition Proposal referred to therein;
(ii) in the case of Section 8.3(c)(ii) (other than as a result of a
termination pursuant to Section 8.1(i)) or Section 8.3(c)(iii), within one
business day after the date of termination of this Agreement; and
(iii) in the case of Section 8.3(c)(ii), in the event of a termination
pursuant to Section 8.1(i), concurrently with such termination.
(e) The Buyer shall pay the Company up to $1.5 million as reimbursement for
expenses of the Company actually incurred relating to the transactions
contemplated by this Agreement prior to termination (including, but not limited
to, fees and expenses of the Company's counsel, accountants and financial
advisors, but excluding any discretionary fees paid to such financial advisors),
upon the termination of this Agreement pursuant to Section 8.1(f). The expenses
payable pursuant to this Section 8.3(e) shall be paid within 10 business days
after demand therefor following the occurrence of the termination event giving
rise to the payment obligation described in this Section 8.3(e).
(f) The Buyer shall pay the Company a termination fee of $23.5 million upon
the termination of this Agreement:
(i) pursuant to Section 8.1(k) (x) resulting from a failure to satisfy
the condition set forth in Section 7.3(a) based upon a breach of a
representation or warranty by the Buyer that was known by the Buyer to be false
when made, or (y) resulting from a failure to satisfy the condition set forth in
Section 7.3(b) based upon a material and knowing breach by the Buyer of its
obligations under this Agreement required to be performed by it on or prior to
the Closing Date; or
(ii) pursuant to Section 8.1(h).
(g) Any fee due under Section 8.3(f) shall be paid by the Buyer by wire
transfer of same-day funds within one business day after the date of termination
of this Agreement.
(h) The parties acknowledge that the agreements contained in this
Section 8.3 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, the parties would not enter into
this Agreement. If one party fails to promptly pay to the other any expense
reimbursement or fee due under this Section 8.3, the defaulting party shall pay
the costs and expenses (including reasonable legal fees and expenses) in
connection with any action, including the filing of any lawsuit or other legal
action, taken to collect payment, together with interest on the amount of any
unpaid fee at the publicly announced prime rate of Fleet Bank, N.A. plus five
percent per annum, compounded quarterly, from the date such expense
reimbursement or fee was required to be paid.
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8.4 AMENDMENT. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective boards of directors, at any time
before or after approval of the matters presented in connection with the Merger
by the stockholders of the Company or the Transitory Subsidiary, PROVIDED,
HOWEVER, that, after any such approval, no amendment shall be made which by law
requires further approval by such stockholders without such further approval.
This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
8.5 EXTENSION; WAIVER. At any time prior to the Effective Time, the parties
hereto, by action taken or authorized by their respective boards of directors,
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party. The failure of any party to
this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
ARTICLE IX
MISCELLANEOUS
9.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of the Company, the Buyer and the Transitory
Subsidiary contained in this Agreement or in any instrument delivered pursuant
to this Agreement shall expire with, and be terminated and extinguished upon,
the Effective Time. This Section 9.1 shall have no effect upon any other
obligations of the parties hereto, whether to be performed before or after the
consummation of the Merger.
9.2 NOTICES. All notices, requests, claims and demands and other
communications hereunder shall be in writing and shall be deemed duly delivered
(i) four business days after being sent by registered or certified mail, return
receipt requested, postage prepaid, or (ii) one business day after being sent
for next business day delivery, fees prepaid, via a reputable nationwide
overnight courier service, in each case to the intended recipient as set forth
below:
(a) if to the Buyer or the Transitory Subsidiary, to
PerkinElmer, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Telecopy: (000) 000-0000
with a copy to:
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Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to the Company, to
Packard BioScience Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Any party to this Agreement may give any notice or other communication hereunder
using any other means (including personal delivery, messenger service, telecopy
or ordinary mail), but no such notice or other communication shall be deemed to
have been duly given unless and until it actually is received by the party for
whom it is intended. Any party to this Agreement may change the address to which
notices and other communications hereunder are to be delivered by giving the
other parties to this Agreement notice in the manner herein set forth.
9.3 ENTIRE AGREEMENT. This Agreement (including the Schedules and Exhibits
hereto and the documents and instruments referred to herein that are to be
delivered at the Closing) constitutes the entire agreement among the parties
hereto and supersedes any prior understandings, agreements or representations by
or among the parties hereto, or any of them, written or oral, with respect to
the subject matter hereof; provided that the Confidentiality Agreement shall
remain in effect in accordance with its terms.
9.4 NO THIRD PARTY BENEFICIARIES. Except as provided in Section 6.12(f) and
Section 6.15(c), this Agreement is not intended, and shall not be deemed, to
confer any rights or remedies upon any person other than the parties hereto and
their respective successors and permitted assigns, to create any agreement of
employment with any person or to otherwise create any third-party beneficiary
hereto.
9.5 ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties hereto without the
prior written consent of the other parties, and any such assignment without such
prior written consent shall be null and void, except that the
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Buyer may substitute any direct or indirect wholly owned Subsidiary of the Buyer
for the Transitory Subsidiary without consent of the Company, provided that the
Buyer and/or the Transitory Subsidiary, as the case may be, shall remain liable
for all of its obligations under this Agreement; and provided further that such
substitution does not prevent or impede the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code. Subject to
the preceding sentence, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns.
9.6 SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such court does
not exercise the power granted to it in the prior sentence, the parties hereto
agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision that shall achieve, to the extent possible,
the economic, business and other purposes of such invalid or unenforceable term.
9.7 COUNTERPARTS AND SIGNATURE. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties hereto and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart. This Agreement may be executed and delivered by
facsimile transmission.
9.8 INTERPRETATION. When reference is made in this Agreement to an Article
or a Section, such reference shall be to an Article or Section of this
Agreement, unless otherwise indicated. The table of contents, table of defined
terms and headings contained in this Agreement are for convenience of reference
only and shall not affect in any way the meaning or interpretation of this
Agreement. The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any party. Whenever the
context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa. Any reference to
any federal, state, local or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation". The mere inclusion of an item in the relevant Disclosure
Schedule as an exception to a representation, warranty or covenant shall not be
deemed an admission by a party that such item represents a material exception or
material fact, event or circumstance or that such item has resulted or would
reasonably be expected to result in
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a Company Material Adverse Effect or a Buyer Material Adverse Effect, as the
case may be. No summary of this Agreement prepared by any party shall affect the
meaning or interpretation of this Agreement. Notwithstanding any other
provisions in this Agreement to the contrary, it is the explicit intent of the
parties hereto that no party is making any representations or warranties
whatsoever, express or implied, beyond those expressly given in this Agreement
(including the Schedules and Exhibits to this Agreement and instruments
contemplated hereby to be delivered to the other party), including any implied
warranty or representation as to condition, merchantability or suitability as to
any of the parties' properties or assets. To the extent that any representation
or warranty is made to the knowledge of the Company (or words of similar
import), such knowledge shall refer to the actual knowledge of the Company's
employees set forth on Section 9.8 of the Company Disclosure Schedule. To the
extent that any representation or warranty is made to the knowledge of the Buyer
(or words of similar import), such knowledge shall refer to the actual knowledge
of the Buyer's employees set forth on Section 9.8 of the Buyer Disclosure
Schedule.
9.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of laws of
any jurisdictions other than those of the State of Delaware.
9.10 SUBMISSION TO JURISDICTION. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby shall be brought
exclusively in any federal or state court located in the State of Delaware, and
each of the parties hereby consents to the jurisdiction of such courts (and of
the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
form. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party as provided in Section 9.2 as to giving notice hereunder shall be
deemed effective service of process on such party.
9.11 REMEDIES. Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party shall be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such
party, and the exercise by a party of any one remedy shall not preclude the
exercise of any other remedy. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which the parties are entitled at law or in equity.
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9.12 WAIVER OF JURY TRIAL. EACH OF THE BUYER, THE TRANSITORY SUBSIDIARY AND
THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF THE BUYER, THE TRANSITORY SUBSIDIARY OR THE COMPANY IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Buyer, the Transitory Subsidiary and the Company
have caused this Agreement to be signed by their respective officers thereunto
duly authorized as of the date first written above.
PERKINELMER, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Title: Chairman and CEO
PABLO ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Title: Chairman and CEO
PACKARD BIOSCIENCE COMPANY
By: /s/ Xxxxx X. Olcolt
---------------------------
Title: CEO
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EXHIBIT B
PERSON SUBJECT TO VOTING AGREEMENTS
Name:
----
Xxxxxxx X. XxXxxxxx
Xxxxxxxx X. XxXxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
The Xxxxxxx X. Xxxxxx Trust
Xxxxxxx X. Xxxxx, Xx.
Xxxxxxxx X. Xxxxxx
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