AGREEMENT AND PLAN OF SHARE EXCHANGE dated as of February 28, 2010, among MERCK KGaA, CONCORD INVESTMENTS CORP. and MILLIPORE CORPORATION
Exhibit 2.1
EXECUTION COPY
|
AGREEMENT
AND PLAN OF SHARE EXCHANGE
dated
as of February 28, 2010,
among
MERCK
KGaA,
CONCORD
INVESTMENTS CORP.
and
MILLIPORE
CORPORATION
|
Page
AGREEMENT
AND PLAN OF SHARE EXCHANGE (this “Agreement”) dated as
of February 28, 2010, among MERCK KGaA, a German corporation with general
partners (“Parent”), Concord
Investments Corp., a Massachusetts corporation and a wholly owned Subsidiary of
Parent (“Sub”),
and MILLIPORE CORPORATION, a Massachusetts corporation (the “Company”).
WHEREAS, the Board of Directors of each
of the Company and Sub has adopted and declared advisable, and in the best
interests of the Company and Sub, as applicable, and the Executive Board of
Parent has approved, this Agreement and the acquisition by Sub of each issued
and outstanding share of common stock, par value $1.00 per share, of the Company
(“Company Common
Stock”), other than the Appraisal Shares, in exchange for the right to
receive $107.00 in cash, upon the terms and subject to the conditions set forth
in this Agreement and in accordance with the provisions of the Massachusetts
Business Corporation Act (the “MBCA”), as a result
of which exchange (the “Share Exchange”) the
Company will become a wholly owned Subsidiary of Sub; and
WHEREAS, Parent, Sub and the Company
desire to make certain representations, warranties, covenants and agreements in
connection with the Share Exchange and also to prescribe various conditions to
the Share Exchange.
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained in this
Agreement, and subject to the conditions set forth herein, the parties hereto
agree as follows:
The
Share Exchange
SECTION 1.01. The
Share Exchange. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the MBCA, at the
Effective Time, (i) Sub and the Company shall effect the Share Exchange and (ii)
the Company shall continue its corporate existence under the laws of the
Commonwealth of Massachusetts as a wholly owned Subsidiary of Sub. The Company
following the Effective Time is sometimes hereinafter referred to as the “Acquired
Corporation.”
SECTION 1.02. Closing. The closing of the Share
Exchange (the “Closing”) will take
place at 10:00 a.m., New York City time, on the fifth business day after
satisfaction or (to the extent permitted by Law) waiver of the conditions set
forth in Article VI (other than those conditions that by their terms are to
be satisfied at the Closing, but subject to the satisfaction or (to the extent
permitted by Law) waiver of those conditions), at the offices of Cravath, Swaine
& Xxxxx LLP, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, unless another time, date or place is agreed to in writing by Parent
and the Company. The date on which the Closing occurs is referred to
in this Agreement as the “Closing
Date”.
SECTION 1.03. Effective Time. Subject to the
provisions of this Agreement, as promptly as practicable on the Closing Date,
the parties shall file articles of share exchange (the “Articles of Share
Exchange”) with the Secretary of the Commonwealth of Massachusetts in
such form as is required by, and executed and acknowledged in accordance with,
the relevant provisions of the MBCA. The Share Exchange shall become
effective upon the filing of the Articles of Share Exchange with the Secretary
of the Commonwealth of Massachusetts or at such subsequent date and time as
Parent and the Company shall agree and specify in the Articles of Share
Exchange. The date and time at which the Share Exchange becomes
effective is referred to in this Agreement as the “Effective
Time”.
SECTION 1.04. Effects of the Share
Exchange. The Share Exchange shall have the effects set
forth herein and in the applicable provisions of the MBCA.
SECTION 1.05. Articles of Organization and
Bylaws. (a) The Restated Articles of
Organization of the Company (the “Company Articles of
Organization”) as in effect immediately prior to the Effective Time shall
continue to be the articles of organization of the Acquired Corporation from and
after the Effective Time until thereafter changed or amended as provided therein
or by applicable Law.
(b) The Amended and Restated
Bylaws of the Company (the “Company Bylaws”) as
in effect immediately prior to the Effective Time shall continue to be the
Bylaws of the Acquired Corporation from and after the Effective Time until
thereafter changed or amended as provided therein or by applicable
Law.
SECTION 1.06. Directors. The Company shall take all
actions necessary to cause all of the directors of the Company as of immediately
prior to the Effective Time to resign effective as of the Effective Time and to
have the persons nominated by Parent before the Effective Time appointed to the
vacancies created thereby in accordance with the Company Articles of
Organization and the Company Bylaws.
SECTION 1.07. Officers. The officers of the
Company immediately
prior to the Effective Time shall be the officers of the Acquired Corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
Effect
of the Share Exchange on the Capital Stock of the
Exchanging
Corporations; Exchange Fund;
Company
Equity Awards
SECTION 2.01. Effect
on Capital Stock. At the Effective Time, by virtue of the
Share Exchange and without any action on the part of the holder of any shares of
Company Common Stock or any shares of capital stock of Parent or
Sub:
(a) Capital Stock of
Sub. Each share of capital stock of Sub issued and outstanding
immediately prior to the Effective Time shall be unaffected by the Share
Exchange and shall remain the issued and outstanding shares of common stock of
Sub following the Effective Time.
(b) Exchange of Company Common
Stock. Each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time (other than the Appraisal
Shares) shall be exchanged for the right to receive $107.00 in cash, without
interest (the “Share
Exchange Consideration”). At the Effective Time, Sub shall
acquire and become the sole holder and owner of each issued and outstanding
share of Company Common Stock so exchanged, and each holder of a certificate (or
evidence of shares in book-entry form) that immediately prior to the Effective
Time represented any such shares of Company Common Stock (each, a “Certificate”) shall
cease to have any rights with respect thereto, except the right to receive the
Share Exchange Consideration.
(c) Appraisal
Rights. In the event the Share Exchange entitles holders of
Company Common Stock to appraisal rights under Part 13 of the MBCA and
notwithstanding anything in this Agreement to the contrary, shares of Company
Common Stock that are issued and outstanding immediately prior to the Effective
Time and which are held by a shareholder who did not vote in favor of the Share
Exchange (or consent thereto in writing) and who is entitled to demand and
properly demands appraisal of such shares (the “Appraisal Shares”)
pursuant to, and who complies in all respects with, the provisions of Part 13 of
the MBCA (the “Dissenting
Shareholders”), shall not be exchanged or be exchangeable for the right
to receive the Share Exchange Consideration as provided in Section 2.01(b), but
instead such holder shall be entitled to payment of the fair value of such
shares in accordance with the provisions of Part 13 of the MBCA (and at the
Effective Time, such holders shall cease to have any rights with respect to any
shares of Company Common Stock held by such holders, except the right to receive
the fair value of such Appraisal Shares in accordance with the provisions of
Part 13 of the MBCA), unless and until such holder shall have failed to perfect
or shall have withdrawn or lost rights to appraisal under the MBCA. If any
Dissenting Shareholder shall have failed to perfect or shall have withdrawn or
lost such right, such holder’s shares of Company Common Stock shall thereupon be
treated as if they had been exchanged for the right to receive, as of the
Effective Time, the Share Exchange Consideration for each such share of Company
Common Stock, in accordance with Section 2.01, without any interest thereon. The
Company shall give Parent (i) prompt notice of any notices of intent to seek
appraisal and written demands for appraisal of any shares of Company Common
Stock, withdrawals of such demands and any other instruments served pursuant to
the MBCA and received by the Company relating to shareholders’ rights of
appraisal and (ii) the opportunity to participate in and direct all negotiations
and proceedings with respect to demands for appraisal under the
MBCA.
SECTION 2.02. Exchange Fund. (a) Paying
Agent. Prior to the Closing Date, Parent shall appoint a bank
or trust company reasonably acceptable to the Company to act as paying agent
(the “Paying
Agent”) for the payment of the Share Exchange Consideration, the Equity
Award Amounts and the Director Stock Equivalent Amounts in accordance with this
Article II and, in connection therewith, shall enter into an agreement with
the Paying Agent in the form reasonably acceptable to the Company (the “Paying Agency
Agreement”). On the Closing Date and prior to the Effective Time, Parent
shall deposit with the Paying Agent cash in an amount sufficient to pay the sum
of (A) the aggregate Share Exchange Consideration, (B) the Equity Award Amounts
and (C) the Director Stock Equivalent Amounts, in each case as required to be
paid pursuant to this Agreement (such cash being hereinafter referred to as the
“Exchange
Fund”).
(b) Certificate Exchange
Procedures. As promptly as practicable after the Effective
Time, but in any event within two business days thereafter, Parent shall cause
the Paying Agent to mail to each holder of record of a Certificate (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 proper delivery
of the Certificates to the Paying Agent and which shall otherwise be in
customary form (including customary provisions with respect to delivery of an
“agent’s message” with respect to shares held in book-entry form)) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Share Exchange Consideration. Each holder of record
of a Certificate shall, upon surrender to the Paying Agent of such Certificate,
together with such letter of transmittal, duly executed, and such other
documents as may reasonably be required by the Paying Agent, be entitled to
receive in exchange therefor the amount of cash which the number of shares of
Company Common Stock previously represented by such Certificate shall have been
converted into the right to receive pursuant to Section 2.01(b), and the
Certificate so surrendered shall forthwith be canceled. In the event
of a transfer of ownership of Company Common Stock which is not registered in
the transfer records of the Company, payment of the Share Exchange Consideration
may be made to a person other than the person in whose name the Certificate so
surrendered is registered if such Certificate shall be properly endorsed or
otherwise be in proper form for transfer and the person requesting such payment
shall pay any fiduciary or surety bonds or any transfer or other similar taxes
required by reason of the payment of the Share Exchange Consideration to a
person other than the registered holder of such Certificate or establish to the
reasonable satisfaction of Parent that such tax has been paid or is not
applicable. Until surrendered as contemplated by this
Section 2.02(b), each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender the
Share Exchange Consideration which the holder thereof has the right to receive
in respect of such Certificate pursuant to this Article II. No
interest shall be paid or will accrue on any cash payable to holders of
Certificates pursuant to the provisions of this Article II.
(c) No Further Ownership Rights
in Company Common Stock. All cash paid upon the surrender of
Certificates in accordance with the terms of this Article II shall be
deemed to have been paid in full satisfaction of all rights pertaining to the
shares of Company Common Stock formerly represented by such
Certificates. At the close of business on the day on which the
Effective Time occurs, there shall be no further registration of transfers on
the stock transfer books of the Acquired Corporation of the shares of Company
Common Stock that were outstanding immediately prior to the Effective Time
(other than any registration in respect of the Share Exchange or any subsequent
transfer of Company Common Stock by Parent or its affiliates). If,
after the Effective Time, any Certificate is presented to the Acquired
Corporation for transfer, it shall be canceled against delivery of cash to the
holder thereof as provided in this Article II.
(d) Termination of the Exchange
Fund. Any portion of the Exchange Fund that remains
undistributed to the holders of the Certificates for nine months after the
Effective Time shall be delivered to Parent, upon demand, and any holders of the
Certificates who have not theretofore complied with this Article II shall
thereafter look only to Parent for, and Parent shall remain liable for, payment
of their claims for the Share Exchange Consideration pursuant to the provisions
of this Article II.
(e) No
Liability. None of Parent, Sub, the Company, the Acquired
Corporation or the Paying Agent shall be liable to any person in respect of any
cash from the Exchange Fund delivered to a public official in compliance with
any applicable state, Federal or other abandoned property, escheat or similar
Law. If any Certificate shall not have been surrendered prior to the
date on which the related Share Exchange Consideration would escheat to or
become the property of any Governmental Entity, any such Share Exchange
Consideration shall, to the extent permitted by applicable Law, immediately
prior to such time become the property of Parent, free and clear of all claims
or interest of any person previously entitled thereto.
(f) Investment of Exchange
Fund. The Paying Agent shall invest the cash in the Exchange
Fund as directed by Parent; provided, however, that such
investments shall be in obligations of or guaranteed by the United States of
America or any agency or instrumentality thereof and backed by the full faith
and credit of the United States of America, in commercial paper obligations
rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard
& Poor’s Corporation, respectively, or in certificates of deposit, bank
repurchase agreements or banker’s acceptances of commercial banks with capital
exceeding $1.0 billion (based on the most recent financial statements of
such bank that are then publicly available). Any interest and other
income resulting from such investments shall be paid solely to
Parent. Nothing contained herein and no investment losses resulting
from investment of the Exchange Fund shall diminish the rights of any holder of
Certificates to receive the Share Exchange Consideration, any holder of a
Company Equity Award to receive the holder’s Equity Award Amount or any holder
of a Director Stock Equivalent to receive the holder’s Director Stock Equivalent
Amount, in each case as provided herein.
(g) 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
Parent, the posting by such person of a bond or surety in such reasonable amount
as Parent may direct as indemnity against any claim that may be made against it
with respect to such Certificate, the Paying Agent shall deliver in exchange for
such lost, stolen or destroyed Certificate the applicable Share Exchange
Consideration with respect thereto.
(h) Withholding
Rights. Parent, the Acquired Corporation or the Paying Agent
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, any holder of a Company Equity Award or any holder of a Director Stock
Equivalent such amounts as Parent, the Acquired Corporation or the Paying Agent
are required to deduct and withhold with respect to the making of such payment
under the Internal Revenue Code of 1986, as amended (the “Code”), or any
provision of state, local or foreign tax Law. To the extent that
amounts are so withheld and paid over to the appropriate taxing authority by
Parent, the Acquired Corporation or the Paying Agent, 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, the holder of the Company Equity
Award or the holder of the Director Stock Equivalent, as the case may be, in
respect of which such deduction and withholding was made by Parent, the Acquired
Corporation or the Paying Agent.
SECTION 2.03. Company
Equity Awards. (a) As soon as reasonably
practicable following the date of this Agreement, and in any event prior to the
Effective Time, the Board of Directors of the Company (or, if appropriate, any
committee administering the Company Stock Plan or a Specified Deferred
Compensation Plan) shall adopt such resolutions and take such other actions
(including, with respect to Company Stock Options, providing the holder of each
such Company Stock Option with advance notice of the cancellation of such
Company Stock Option and an opportunity to exercise such Company Stock Option
prior to the Effective Time, in each case to the extent required by the terms of
the applicable Company Stock Plan), as may be required to provide
that:
(i) at
the Effective Time, each unexercised Company Stock Option, whether vested or
unvested, that is outstanding immediately prior to the Effective Time shall be
canceled, with the holder thereof becoming entitled to receive an amount in cash
equal to (A) the excess, if any, of (1) the Share Exchange
Consideration over (2) the exercise price per share of Company Common Stock
subject to such Company Stock Option multiplied by (B) the
number of shares of Company Common Stock subject to such Company Stock Option
(such amount, the “Option
Amount”);
(ii)
immediately prior to the Effective Time, each Company Performance RSU Award that
is outstanding immediately prior to the Effective Time and is held by any
individual who has not entered into an Executive Termination Agreement with the
Company shall vest as to the number of shares of Company Common Stock issuable
pursuant to such Company Performance RSU Award upon attainment of the target
level of performance applicable to such Company Performance RSU Award (the
“Non-Executive Vested
Performance RSU Shares”), and, at the Effective Time, the Non-Executive
Vested Performance RSU Shares shall be shares of Company Common Stock for
purposes of Section 2.01(b), with the holder of such Company Performance RSU
Award becoming entitled to receive an amount in cash equal to (A) the Share
Exchange Consideration multiplied by (B) the number of
Non-Executive Vested Performance RSU Shares attributable to such Company
Performance RSU Award (such amount, the “Non-Executive Performance
RSU Amount”); and
(iii)
immediately prior to the Effective Time, each Company Performance RSU Award that
is outstanding immediately prior to the Effective Time and is held by any
individual who has entered into an Executive Termination Agreement with the
Company shall vest as to the number of shares of Company Common Stock specified
as vesting upon a “Change of Control” in the applicable agreement for such
Company Performance RSU Award (the “Executive Vested Performance
RSU Shares”), and any remaining portion of such Company Performance RSU
Award shall be cancelled at such time and without consideration therefor, and,
at the Effective Time, the Executive Vested Performance RSU Shares shall be
shares of Company Common Stock for purposes of Section 2.01(b), with the holder
of such Company Performance RSU Award becoming entitled to receive an amount in
cash equal to (A) the Share Exchange Consideration multiplied by (B) the number of
Executive Vested Performance RSU Shares attributable to such Company Performance
RSU Award (such amount, the “Executive Performance RSU
Amount”);
(iv)
immediately prior to the Effective Time, each Company RSU Award that is
outstanding immediately prior to the Effective Time shall be fully vested, and,
at the Effective Time, the vested shares of Company Common Stock subject to such
Company RSU Award shall be shares of Company Common Stock for purposes of
Section 2.01(b), with the holder of a
Company RSU Award becoming entitled to receive an amount in cash equal to (A)
the Share Exchange Consideration multiplied by (B) the number of
shares of Company Common Stock subject to such Company RSU Award at the
Effective Time (such amount, the “RSU
Amount”).
The term
“Equity Award
Amounts” means the sum of the aggregate Option Amounts, aggregate
Non-Executive Performance RSU Amounts, aggregate Executive Performance RSU
Amounts and aggregate RSU Amounts, and the term “Equity Award Amount”
means the portion of the aggregate Option Amounts, Non-Executive Performance RSU
Amounts, Executive Performance RSU Amounts or RSU Amounts (as applicable)
payable to any holder of a Company Equity Award. Except as otherwise
required under the terms of the applicable award or as necessary to avoid the
imposition of any additional taxes or penalties on any Equity Award Amount
pursuant to Section 409A of the Code, all amounts payable pursuant to this
Section 2.03(a) shall be paid as promptly as practicable following the
Effective Time, without interest.
(b) The Company shall take
all actions necessary to ensure that from and after the Effective Time neither
Parent nor the Acquired Corporation will be required to deliver Company Common
Stock or other capital stock of the Company to any person pursuant to or in
settlement of Company Equity Awards, the Convertible Notes or
otherwise. As of the Effective Time, each Company Stock Equivalent
issued under a Specified Deferred Compensation Plan that is outstanding
immediately prior to the Effective Time shall cease to represent the right to
the equivalent in value and rate of return to a share of Company Common Stock
and shall instead be converted into the right to receive an amount in cash equal
to the Share Exchange Consideration (such amount, the “Stock Equivalent
Amount”). Stock Equivalent Amounts payable in respect of
Company Stock Equivalents outstanding under (i) the Director Deferral Agreements
(such stock equivalents, the “Director Stock
Equivalents” and, the amounts in cash payable in respect thereof, the
“Director Stock
Equivalent Amounts”) shall be paid as soon as practicable following the
Effective Time, without interest (except as otherwise required under the terms
of the applicable Director Stock Equivalent) and (ii) the Supplemental Plan
(such stock equivalents, the “Supplemental Plan Stock
Equivalents” and, the amounts in cash payable in respect thereof, the
“Supplemental Plan
Stock Equivalent Amounts”) shall be reinvested in accordance with the
terms of the Supplemental Plan and payments in respect thereof shall be paid
after the Effective Time in accordance with the terms of the Supplemental
Plan. Unless otherwise directed in writing by Parent, the Board of
Directors of the Company or any duly authorized persons shall authorize the
termination of and the Company shall terminate the Company’s Ireland employee
share participation scheme (the “Irish Share Scheme”),
effective no later than the Effective Time. The Company shall provide
Parent evidence of such authorization to terminate the Irish Share
Scheme.
Representations
and Warranties
SECTION 3.01. Representations and Warranties of the
Company. Except as disclosed in any report, schedule,
form, statement or other document filed with, or furnished to, the Securities
and Exchange Commission (the “SEC”) by the Company
after January 1, 2007 and publicly available prior to the date of this Agreement
(collectively, the “Filed SEC Documents”)
or as set forth in the Company Disclosure Letter (it being understood that any
information set forth in one section or subsection of the Company Disclosure
Letter shall be deemed to apply to and qualify the Section or subsection of this
Agreement to which it corresponds in number and each other Section or subsection
of this Agreement to the extent that it is reasonably apparent that such
information is relevant to such other Section or subsection), the Company
represents and warrants to Parent and Sub as follows:
(a) Organization, Standing and
Corporate Power. Each of the Company and its Subsidiaries is
duly organized and validly existing under the Laws of its jurisdiction of
organization and has all requisite corporate, company or partnership power and
authority to carry on its business as presently conducted. Each of
the Company and its Subsidiaries is duly qualified or licensed to do business
and is in good standing (where such concept is recognized under applicable Law)
in each jurisdiction where the nature of its business or the ownership, leasing
or operation of its properties makes such qualification or licensing necessary,
other than where the failure to be so qualified, licensed or in good standing
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. A true and complete copy of the Company
Articles of Organization and the Company Bylaws, in each case as in effect on
the date of this Agreement, are included in the Filed SEC
Documents.
(b) Subsidiaries. Section
3.01(b) of the Company Disclosure Letter lists, as of the date of this
Agreement, each Subsidiary of the Company and the jurisdiction of organization
thereof and its place of management and control to the extent such place differs
from the jurisdiction of organization. All the outstanding shares of
capital stock of, or other equity interests in, each Subsidiary of the Company
have been validly issued and are fully paid and nonassessable and are owned,
directly or indirectly, by the Company free and clear of all pledges, liens,
charges, mortgages, encumbrances or security interests of any kind or nature
whatsoever (collectively, “Liens”), other than
Liens described in clause (ii) of the definition of Permitted
Liens. Except for its interests in its Subsidiaries, the Company does
not own, directly or indirectly, any capital stock of, or other equity interests
in, any corporation, partnership, joint venture, association or other
entity.
(c) Capital
Structure. The authorized capital stock of the Company
consists of 120,000,000 shares of Company Common Stock. At the
close of business on February 25, 2010, (i) 56,070,028 shares of Company
Common Stock were issued and outstanding (which number includes no shares of
Company Common Stock subject to vesting or other forfeiture conditions or
repurchase by the Company), (ii) 7,660,238 shares of Company Common Stock
were reserved and available for issuance pursuant to the Company’s 2008 Stock
Incentive Plan (the “Company Stock Plan”),
of which (A) 2,750,730 shares of Company Common Stock were subject to
outstanding options to acquire shares of Company Common Stock from the Company
with a weighted-average exercise price of $59.39 (such options, together with
any similar options granted after February 25, 2010, the “Company Stock
Options”), (B) 203,209 shares of Company Common Stock were subject
to restricted stock unit awards that were subject to performance-based vesting
or delivery requirements, assuming settlement of such awards based on the
attainment of performance goals at maximum levels (such restricted stock unit
awards, together with any similar restricted stock unit awards granted after
February 25, 2010, the “Company Performance RSU
Awards”) and (C) 754,230 shares of Company Common Stock were subject to a
restricted stock unit awards granted by the Company that were subject to
service-based vesting or delivery requirements (such restricted stock unit
awards, together with any similar restricted stock unit awards granted after
February 25, 2010, the “Company RSU Awards”
and, together with the Company Stock Options and Company Performance RSU Awards,
the “Company Equity
Awards”), (iii) 30,394 stock equivalents with respect to a share of
Company Common Stock were outstanding under the Company’s Supplemental Savings
and Retirement Plan for Key Salaried Employees (“Supplemental Plan”)
and agreements between the Company and its directors to defer certain director
fees (“Director
Deferral Agreements”) (such plans, collectively, the “Specified Deferred
Compensation Plans”, and such stock equivalents, together with similar
stock equivalents issued after February 25, 2010, the “Company Stock
Equivalents”) and (iv) $565,000,000 aggregate principal amount of 3.75%
convertible senior notes due 2026, issued pursuant to the Indenture
between the Company and Wilmington Trust Company dated as of June 13, 2006 (the
“Convertible
Notes”), were outstanding. Except as set forth above, at the
close of business on February 25, 2010, no shares of capital stock or other
voting securities of the Company were issued, reserved for issuance or
outstanding. Since February 25, 2010 to the date of this Agreement,
(x) there have been no issuances by the Company of shares of capital stock or
other voting securities of the Company, other than issuances of shares of
Company Common Stock pursuant to the Company Stock Plan and (y) there have been
no issuances by the Company of options, warrants, other rights to acquire shares
of capital stock of the Company or other rights that give the holder thereof any
economic interest of a nature accruing to the holders of Company Common Stock,
except for rights under the Company Stock Plan, the Specified Deferred
Compensation Plans, the Company Employees’ Participation and Savings Plan (the
“Company 401(k)
Plan”) and the Irish Share Scheme; notwithstanding anything to the
contrary in this Section 3.01(c), between February 25, 2010 and the date of this
Agreement, (i) the Company has not purchased, redeemed or otherwise acquired,
directly or indirectly, any Company Common Stock or any rights, warrants or
options with respect to the Company Common Stock (in particular Company Equity
Awards and Company Stock Equivalents) other than as would be permitted without
consent of Parent after the date of this Agreement pursuant to Section
4.01(a)(iii) or (ii) issued, delivered, transferred or sold any shares of
Company Common Stock, any other voting securities or any securities convertible
into, or any rights, warrants or options to acquire, any such Company Common
stock, voting securities or convertible securities, or any “phantom” stock,
“phantom” stock rights, stock appreciation rights or stock based performance
units (in particular Company Equity Awards and Company Stock Equivalents) other
than as would be permitted without consent of Parent after the date of this
Agreement pursuant to Section 4.01(a)(iv). All outstanding shares of
Company Common Stock are, and all such shares that may be issued prior to the
Effective Time will be, when issued, duly authorized, validly issued, fully paid
and nonassessable and not subject to preemptive rights. 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 holders of Company Common Stock may vote
(“Voting Company
Debt”), except for the Convertible Notes. Except for any
obligations pursuant to this Agreement, the Company Stock Plan, the Specified
Deferred Compensation Plans, the Company 401(k) Plan, the Irish Share Scheme or
as otherwise set forth above, as of February 25, 2010, there are no shares of
Company Common Stock, any other shares of capital stock, voting securities,
options, warrants, rights, convertible or exchangeable securities, “phantom”
stock, “phantom” stock rights, stock appreciation rights or stock-based
performance units with respect to the Company, Contracts or undertakings of any
kind to which the Company or any of its Subsidiaries is a party or by which any
of them is bound (1) obligating the Company or any such Subsidiary to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity interests in, or any security
convertible or exchangeable for any capital stock of or other equity interest
in, the Company or of any of its Subsidiaries or any Voting Company Debt,
(2) obligating the Company or any such Subsidiary to issue, grant or enter
into any such option, warrant, right, security, unit, Contract or undertaking or
(3) that give any person the right to receive any economic interest of a
nature accruing to the holders of Company Common Stock. As of the
date of this Agreement, there are no outstanding contractual obligations of the
Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire
any shares of capital stock or options, warrants or other rights to acquire
shares of capital stock of the Company or any such Subsidiary, other than
pursuant to the Company Stock Plan, the Company 401(k) Plan, the Irish Share
Scheme and the Specified Deferred Compensation
Plans. Section 3.01(c) of the Company Disclosure Letter sets
forth a true and complete list, as of the date of this Agreement, of all
Indebtedness for borrowed money of the Company and its Subsidiaries (other than
any such Indebtedness owed to the Company or any of its Subsidiaries, letters of
credit issued in the ordinary course of business and any other such Indebtedness
with an aggregate principal amount not in excess of $10.0 million
individually outstanding on the date of this Agreement. From and
after the Effective Time, neither Parent nor the Company will be required to
deliver Company Common Stock or other capital stock of the Company to any person
pursuant to or in settlement of any Company Equity Awards, the Convertible
Notes, the Irish Share Scheme or otherwise.
(d) Authority;
Noncontravention. The Company has all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement, subject, in the case of the Share
Exchange, to receipt of the Stockholder Approval. The execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Company, subject, in the case of
the Share Exchange, to receipt of the Stockholder Approval. This
Agreement has been duly executed and delivered by the Company and, assuming the
due authorization, execution and delivery by each of the other parties hereto,
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency and other Laws of general applicability relating to or
affecting creditors’ rights and to general equity principles. The
Board of Directors of the Company, at a meeting duly called and held at which
all directors of the Company (other than one) were present, duly adopted
resolutions (i) adopting and declaring advisable this Agreement, the Share
Exchange and the other transactions contemplated by this Agreement,
(ii) declaring that it is in the best interests of the stockholders of the
Company that the Company enter into this Agreement and consummate the Share
Exchange and the other transactions contemplated by this Agreement on the terms
and subject to the conditions set forth herein, (iii) directing that the
approval of this Agreement be submitted to a vote at a meeting of the
stockholders of the Company and (iv) recommending that the stockholders of
the Company approve this Agreement, which resolutions, as of the date of this
Agreement, have not been rescinded, modified or withdrawn in any
way. The execution and delivery by the Company of this Agreement do
not, and the consummation of the Share Exchange and the other transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under, create or affect any
rights under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a benefit under, any
requirement to provide notice to, or require consent or approval from, the other
party thereto, or result in the creation of any Lien upon any of the properties
or assets of the Company or any of its Subsidiaries under (other than any such
Lien created in connection with the Financing or otherwise from any action taken
by Parent or Sub), any provision of (A) the Company Articles of
Organization, the Company Bylaws or the comparable organizational documents of
any of its Subsidiaries or (B) subject to the filings and other matters
involving Governmental Entities referred to in the immediately following
sentence, (1) any contract, lease, license, indenture, note, bond or other
agreement that is in force and effect (a “Contract”) to which
the Company or any of its Subsidiaries is a party or by which any of their
respective properties or assets are bound and that is material for the Company
and its Subsidiaries taken as a whole, or (2) any statute, law, ordinance,
rule or regulation of any Governmental Entity (“Law”) or any
judgment, order, award, injunction or decree of any Governmental Entity or any
arbitral tribunal (“Judgment”) or related
settlement, in each case applicable to the Company or any of its Subsidiaries or
their respective properties or assets and that is material for the Company and
its Subsidiaries taken as a whole. No consent, approval, order or
authorization of, or registration, declaration or filing with, or notice to, any
Federal, state, local or foreign government, any court of competent jurisdiction
or any administrative, regulatory (including any stock exchange) or other
governmental agency, commission or authority (each, a “Governmental Entity”)
is required to be obtained or made 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 Share Exchange or the
other transactions contemplated by this Agreement, except for (I) the
filing of a premerger notification and report form by the Company under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and the
filings and receipt, termination or expiration, as applicable, of such other
approvals or waiting periods as may be required under any other applicable
competition, merger control, antitrust or similar Law of any jurisdiction
(“Merger Control
Laws”), (II) the filing with the SEC of (x) a proxy statement
relating to the approval by the stockholders of the Company of this Agreement
(as amended or supplemented from time to time, the “Proxy Statement”) and
(y) such reports under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), as may be required in connection with this Agreement and the
transactions contemplated by this Agreement, (III) the filing of the
Articles of Share Exchange with the Secretary of the Commonwealth of
Massachusetts and of appropriate documents with the relevant authorities of
other jurisdictions in which the Company or any of its Subsidiaries is qualified
to do business, (IV) any filings required under the rules and regulations
of the New York Stock Exchange and (V) such other consents, approvals,
orders, authorizations, registrations, declarations, filings and notices the
failure of which to be obtained or made would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
Immediately before the Effective Time,
there will be no event of default (however defined) under any Contract of the
Company or any of its Subsidiaries with respect to (A) Indebtedness or (B) any
other indebtedness for or in respect of (i) any obligation or financial
liability pursuant to a debt instrument, (ii) any guarantee or
(counter-)indemnity in respect of any financial liability or loss of another
person, (iii) any agreement treated as a finance or capital lease, (iv) any
receivable sold or discounted on a recourse basis, (v) any treasury transaction
(including derivative transactions) or (vi) any finance bills, except, in the
case of clause (A) and (B) above, for events of default that, individually or in
the aggregate, are in respect of obligations described in clauses (A) and (B)
above in an aggregate amount not in excess of $20.0 million.
(e) SEC
Documents. The Company has filed all reports, schedules,
forms, statements and other documents with the SEC required to be filed by the
Company since January 1, 2007 (the “SEC
Documents”). As of their respective dates of filing, the SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the “Securities Act”), the
Exchange Act or the Sarbanes Oxley Act of 2002, as the case may be, and in each
case the rules and regulations promulgated thereunder applicable thereto, and as
of their respective dates (or if amended by a subsequent filing with the SEC
prior to the date hereof, as of the date of such amendment) none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited consolidated financial statements and the
unaudited quarterly financial statements (including, in each case, the notes
thereto) of the Company included in the SEC Documents when filed complied in all
material respects with the published rules and regulations of the SEC with
respect thereto, have been prepared in all material respects in accordance with
generally accepted accounting principles (“GAAP”) (except, in
the case of unaudited quarterly statements, as permitted by Form 10-Q of
the SEC or other rules and regulations of the SEC) applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto)
and fairly present in all material respects the consolidated financial position
of the Company and its consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited quarterly statements, to normal
year-end audit adjustments). Except for matters reflected or reserved
against in the consolidated balance sheet of the Company as of December 31, 2009
(or the notes thereto) included in the Filed SEC Documents, neither the Company
nor any of its Subsidiaries has any liabilities or obligations (whether
absolute, accrued, contingent, fixed or otherwise) of any nature that would
be required under GAAP, as in effect on the date of this Agreement, to be
reflected on a consolidated balance sheet of the Company (including the notes
thereto), except liabilities and obligations that (i) were incurred since
December 31, 2009 in the ordinary course of business in accordance with past
practice, (ii) are incurred in connection with the transactions
contemplated by this Agreement, or (iii) would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(f) The Company maintains
disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the
Exchange Act. Such disclosure controls and procedures are effective
to ensure that information required to be disclosed by the Company in filings
with the SEC is recorded and reported on a timely basis to the individuals
responsible for the preparation of the Company’s filings with the
SEC. The Company maintains internal control over financial reporting
(as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange
Act). Such internal control over financial reporting is effective in
providing reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with GAAP and includes policies and procedures that (i) pertain to the
maintenance of records that in reasonable detail accurately and fairly reflect
the transactions and dispositions of the assets of the Company, (ii) provide
reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP, and that receipts
and expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company, and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that could have a
material effect on its financial statements. The Company has
disclosed, based on the most recent evaluation of its chief executive officer
and its chief financial officer prior to the date of this Agreement, to the
Company’s auditors and the audit committee of the Company’s board of directors
(A) any significant deficiencies in the design or operation of its internal
controls over financial reporting that are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial
information and has identified for the Company’s auditors and audit committee of
the Company’s Board of Directors any material weaknesses in internal control
over financial reporting and (B) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company’s internal control over financial reporting.
(g) Information
Supplied. The Proxy Statement will not, at the date it is
first mailed to the stockholders of the Company and at the time of the
Stockholders’ Meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading, except that no representation or warranty is made by
the Company with respect to statements made or incorporated by reference therein
based on information supplied by Parent or Sub for inclusion or incorporation by
reference in the Proxy Statement.
(h) Absence of Certain Changes
or Events. (A) Since December 31, 2009, there has not been any
change, effect, event, occurrence or state of facts that, individually or in the
aggregate, has had or would reasonably be expected to have a Material Adverse
Effect or prevent or materially impair the consummation of the transactions
contemplated by this Agreement, and (B) from such date through the date of this
Agreement, the Company and its Subsidiaries have conducted their businesses only
in the ordinary course of business. During such period there has not
been:
(i) any
declaration, setting aside or payment of any dividend on, or making of any other
distribution (whether in cash, stock or property) with respect to, any capital
stock of the Company;
(ii) any
split, combination or reclassification of any capital stock of the Company or
any issuance or the authorization of any issuance of any other securities in
lieu of or in substitution for shares of capital stock of the
Company;
(iii) any
purchase, redemption or other acquisition by the Company or any of its
Subsidiaries of any shares of capital stock of the Company or any of its
Subsidiaries or any rights, warrants or options to acquire any such shares,
other than (A) the acquisition by the Company of shares of Company Common
Stock in connection with the surrender of shares of Company Common Stock by
holders of options to acquire such stock in order to pay the exercise price
thereof, (B) the withholding of shares of Company Common Stock to satisfy
tax obligations with respect to awards granted pursuant to the Company Stock
Plan, (C) the acquisition by the Company of Company Stock Options, Company
Performance RSU Awards and Company RSU Awards in connection with the forfeiture
of such awards, (D) the acquisition by the trustee of the Company 401(k) Plan of
shares of Company Common Stock in order to satisfy participant investment
elections under the Company 401(k) Plan, (E) the acquisition by the
administrator of the Irish Share Scheme of shares of Company Common Stock in
order to satisfy participant elections under the Irish Share Scheme and (F) the
extinguishment of rights pursuant to Company Stock Equivalents in connection
with the change in a participant’s investment election under a Specified
Deferred Compensation Plan;
(iv)
except (A) in the ordinary course of business consistent with past
practice, (B) as required pursuant to the terms of any Company Benefit Plan
or other written agreement, in each case, in effect as of December 31, 2009, or
(C) as set forth in Section 3.01(h)(iv) of the Company Disclosure Letter,
(1) any granting to any director or executive officer of the Company of any
material increase in compensation, (2) any granting to any director or
executive officer of the Company of any new or increase in severance or
termination pay or (3) any entry by the Company into any employment,
consulting, severance or termination agreement with any director or executive
officer of the Company pursuant to which the total annual compensation or the
aggregate severance benefits or any benefits resulting from the execution of
this Agreement or the consummation of the transactions contemplated hereby
exceed $250,000 for the respective director or officer;
(v) any
material change in accounting methods, principles or practices by the Company or
any of its Subsidiaries affecting the consolidated assets, liabilities or
results of operations of the Company, except as required (A) by GAAP (or any
interpretation thereof), including pursuant to standards, guidelines and
interpretations of the Financial Accounting Standards Board or any similar
organization, or (B) by Law, including Regulation S-X under the
Securities Act;
(vi) any
material tax election, any amendment to a tax return with respect to any
material tax, any settlement of any controversy with respect to any material
tax, any material change in any tax accounting period, any surrender of any
claim for a material refund of taxes, in each case, by the Company or any of its
Subsidiaries, other than in the ordinary course of business;
(vii) any
transfer, sale, exclusive licensing or abandonment of any Intellectual Property
used in the conduct of the business of the Company or any of its Subsidiaries
and that is material to the Company and its Subsidiaries taken as a whole
(“Material
Intellectual Property”); or
(viii)
any agreement to do any of the foregoing.
(i) Litigation. There
is no suit, action or claim, dispute, litigation, hearing, arbitration,
mediation or other proceeding (including proceedings brought before a
governmental agency, tribunal or authority) (each, an “Action”) pending or,
to the Knowledge of the Company, threatened against the Company or any of its
Subsidiaries that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect. There is no Judgment
outstanding against the Company or any of its Subsidiaries that, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect
or prevent or materially impair the consummation of the transactions
contemplated by this Agreement, nor is the Company or any of its Subsidiaries
subject to any settlement to this effect. This Section 3.01(i) does
not relate to environmental matters, which are the subject of Section 3.01(p),
and tax matters, which are the subject of Section 3.01(n).
(j) Contracts. Except
for this Agreement and for the Contracts filed as exhibits to the Filed SEC
Documents, Section 3.01(j) of the Company Disclosure Letter sets forth a true
and complete list, as of the date of this Agreement, and the Company has made
available to Parent true and complete copies, of:
(i) each Contract that would be
required to be filed by the Company as a “material contract” pursuant to Item
601(b)(10) of Regulation S-K under the Securities Act;
(ii) each loan and credit agreement,
note, debenture, bond, indenture and other similar Contract pursuant to which
any Indebtedness of the Company or any of its Subsidiaries, in each case in
excess of $20.0 million, is outstanding or may be incurred, other than any
such Contract between or among any of the Company and any of its Subsidiaries
and any letters of credit entered in the ordinary course of business, as well
any Contract relating to any Lien (other than Permitted Liens) on any of the
assets of the Company or its Subsidiaries, restricting the payment of dividends
or other distributions of assets by any of the Company or its Subsidiaries or
providing for the guaranty (including letters of credit) of Indebtedness of any
Person (including the Company and its Subsidiaries) in excess of $20.0
million;
(iii) each Contract to which the
Company or any of its Subsidiaries is a party that by its terms calls for
aggregate payments by the Company or any of its Subsidiaries of more
than $20.0 million over the remaining term of such Contract, except
for any such Contract entered into in the ordinary course of business or that
may be canceled by the Company or any of its Subsidiaries, without any material
penalty or other liability to the Company or any of its Subsidiaries, upon
notice of 90 days or less; and
(iv) each Contract to which the Company
or any of its Subsidiaries is a party for the direct or indirect acquisition or
disposition by the Company or any of its Subsidiaries of properties, assets,
capital stock or businesses (including by way of a put, call, right of first
refusal or similar right pursuant to which the Company could be required to
purchase or sell) for, in each case, aggregate consideration of more than $20.0
million, which has not yet been consummated or pursuant to which the Company or
any of its Subsidiaries has continuing material warranty, indemnity or
“earn-out” obligations (or other current, future or contingent material
obligations), except in each case for acquisitions and dispositions of
properties and assets in the ordinary course of business (including acquisitions
of supplies and acquisitions and dispositions of inventory).
Each such
Contract described in clauses (i) through (iv) above is referred to
herein as a “Specified
Contract”. Each of the Specified Contracts is valid and
binding on the Company or the Subsidiary of the Company party thereto and, to
the Knowledge of the Company, each other party thereto, and is in full force and
effect, except for such failures to be valid and binding or to be in full force
and effect that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. There is no default under
any Specified Contract by the Company or any of its Subsidiaries or, to the
Knowledge of the Company, by any other party thereto, and no event has occurred
that with the lapse of time or the giving of notice or both would constitute a
default thereunder by the Company or any of its Subsidiaries, or would give rise
to a right of termination by any other party thereto or would otherwise result
in the acceleration or creation of rights to any such other party, or, to the
Knowledge of the Company, would constitute a default by any other party thereto,
in each case except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(k) Compliance with
Laws. Each of
the Company and its Subsidiaries is in compliance in all material respects with
all Laws applicable to its business or operations and that are material to the
Company and its Subsidiaries taken as a whole, including any such Laws enforced
by the United States Food and Drug Administration and comparable foreign
Governmental Entities and by the United States Department of Agriculture and any
such Laws relating to Company Employees and Union Employees. Each of
the Company and its Subsidiaries has in effect all material approvals,
authorizations, registrations, licenses, exemptions, permits and consents of
Governmental Entities (collectively, “Authorizations”)
necessary for it to conduct its business as presently conducted and that are
material to the Company and its Subsidiaries taken as a whole, and all such
Authorizations are in full force and effect. This
Section 3.01(k) does not relate to environmental matters, which are the
subject of Section 3.01(p) (except to the extent that Section 3.01(p)
employs the term “Authorizations” as defined in this Section 3.01(k), employee
benefit matters, which are the subject of Section 3.01(m), and taxes, which
are the subject of Section 3.01(n).
(l) Labor and Employment
Matters. Neither the Company nor any of its Subsidiaries is a
party to any material collective bargaining agreement or any other material
contract or agreement with any labor organization (other than any such agreement
with a works council or other employee organization that applies on a regional,
nationwide or industry-wide basis by virtue of applicable Law or by virtue of
the membership of the Company in any employer federation or comparable
organization) (collectively, the “Company Labor
Agreements”), nor is any such contract or agreement, as of the date
hereof, being negotiated. To the Knowledge of the Company, as of the
date of this Agreement, there are not any pending or threatened union organizing
activities concerning any employees of the Company or any of its Subsidiaries
that, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. As of the date of this Agreement, there are
no labor strikes, slowdowns, work stoppages, lockouts, material grievances or
material arbitrations pending or, to the Knowledge of the Company, threatened,
against the Company or any of its Subsidiaries that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect.
(m) Employee Benefit
Matters. (i) Section 3.01(m)(i) of the Company
Disclosure Letter contains a true and complete list, as of the date of this
Agreement, of (A) each material Company Benefit Plan that is an “employee
pension benefit plan” (as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)) (a “Company Pension
Plan”), (B) each material Company Benefit Plan that is an “employee
welfare benefit plan” (as defined in Section 3(1) of ERISA), (C) each
material Company Benefit Plan maintained primarily for the benefit of
individuals regularly employed outside the United States (“Company Foreign Benefit
Plan”), and (D) all other material Company Benefit Plans and all
material Company Benefit Agreements. Each Company Benefit Plan,
Company Foreign Benefit Plan and Company Benefit Agreement has been administered
in compliance with its terms and with applicable Law (including ERISA and the
Code), other than instances of noncompliance that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(ii) The Company has made
available to Parent true and complete copies of (to the extent applicable)
(A) each material Company Benefit Plan and each material Company Benefit
Agreement or, at the Company’s option in the case of a material Company Foreign
Benefit Plan, a summary thereof (or, in either case, with respect to any
unwritten material Company Benefit Plan or material Company Benefit Agreement, a
written description thereof), other than any Company Benefit Plan or Company
Benefit Agreement that the Company or any of its Subsidiaries is prohibited from
making available to Parent as the result of applicable Law relating to the
safeguarding of data privacy, (B) the most recent annual report on
Form 5500 filed with the Internal Revenue Service or similar report
required to be filed with any Government Entity, in each case with respect to
each material Company Benefit Plan (if any such report was required by
applicable Law), and (C) each trust agreement and group annuity contract
relating to any material Company Benefit Plan.
(iii) Each Company Benefit
Plan intended to be “qualified” or registered within the meaning of
Section 401(a) of the Code (or any comparable provision under applicable
non-U.S. laws) has received a favorable determination letter as to such
qualification or registration from the Internal Revenue Service (or any
comparable Governmental Entity), and no event has occurred, either by reason of
any action or failure to act, that would reasonably be expected to cause the
loss of any such qualification, registration or tax-exempt status, except where
such loss of qualification, registration or tax-exempt status, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(iv) Except as individually
or in the aggregate would not reasonably be expected to have a Material Adverse
Effect, none of the Company, any of its Subsidiaries, any officer of the Company
or any such Subsidiary or any Company Benefit Plan that is subject to ERISA,
including any Company Pension Plan, or, to the Knowledge of the Company, any
trust created thereunder or any trustee or administrator thereof, has engaged in
a “prohibited transaction” (as such term is defined in Section 406 of ERISA
or Section 4975 of the Code) or any other breach of fiduciary
responsibility that would reasonably be expected to subject the Company, any of
its Subsidiaries or any officer of the Company or any such Subsidiary to the tax
or penalty on prohibited transactions imposed by such Section 4975 of the
Code or to any liability under Section 502(i) or 502(1) of
ERISA.
(v) Section 3.01(m)(v) of
the Company Disclosure Letter sets forth, as of the date of this Agreement, each
Company Benefit Plan that provides health benefits (whether or not insured) with
respect to employees or former employees (or any of their beneficiaries) of the
Company or any of its Subsidiaries after retirement or other termination of
service (other than coverage or benefits (A) required to be provided under
Part 6 of Title I of ERISA or any other applicable Law or (B) the
full cost of which is borne by the employee or former employee (or any of their
beneficiaries)).
(vi) During the immediately
preceding six years, no liability under Title IV or Section 302 of ERISA has
been incurred by the Company or any trade or business, whether or not
incorporated, that together with the Company would be deemed a “single employer”
within the meaning of Section 4001(b) of ERISA (“ERISA Affiliate”)
that has not been satisfied in full, and no condition exists that presents a
material risk to the Company or any ERISA Affiliate of incurring any such
liability, other than liability for premiums due the Pension Benefit Guaranty
Corporation (“PBGC”) (which
premiums have been paid when due). No Company Benefit Plan subject to
Title IV of ERISA (“Title IV Plan”) or
any trust established thereunder has incurred any “accumulated funding
deficiency” (as defined in section 302 of ERISA and section 412 of the Code),
whether or not waived, as of the last day of the most recent fiscal year of each
Title IV Plan ended prior to the date hereof. The PBGC has not
instituted proceedings pursuant to Section 4042 of ERISA to terminate any of the
Title IV Plans and no condition exists that presents a material risk that such
proceedings will be instituted by the PBGC.
(vii) At no time during the
immediately preceding six years has the Company, any Subsidiary thereof or any
ERISA Affiliate maintained, sponsored or contributed to a “multiemployer plan”
(as defined in Section 4001(a)(3) of ERISA).
(viii) Except as expressly
provided in this Agreement, neither the execution of this Agreement, shareholder
approval of this Agreement, nor the consummation of the transactions
contemplated hereby will, either alone or in combination with another event, (A)
entitle any current or former employee, officer or director of the Company or
any ERISA Affiliate to any material severance pay, unemployment compensation or
any other material payment or (B) accelerate the time of payment or vesting, or
materially increase the amount, of compensation due any such employee, officer
or director. Neither the Company nor any ERISA Affiliate is party to
any contract or arrangement that could result, separately or in the aggregate,
in the payment of any “excess parachute payments” within the meaning of section
280G of the Code.
(ix) The term “Company Benefit
Agreement” means each employment, consulting, indemnification, severance
or termination agreement or arrangement between the Company or any of its
Subsidiaries, on the one hand, and any current or former employee, officer or
director of the Company or any of its Subsidiaries, on the other hand (but
excluding any Company Benefit Plans), other than any agreement or arrangement
mandated by applicable Law. The term “Company Benefit Plan”
means each bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock or
other equity-based compensation, retirement, vacation, severance, disability,
death benefit, hospitalization, medical or other employee benefits plan, policy,
program, arrangement or understanding, (but excluding any Company Benefit
Agreement), in each case sponsored, maintained or contributed to, or required to
be sponsored, maintained or contributed to, by the Company or any of its
Subsidiaries or any ERISA Affiliate, in each case for the benefit of any current
or former employee, officer or director of the Company or any of its
Subsidiaries, other than (A) any “multiemployer plan” (within the meaning
of Section 3(37) of ERISA) or (B) any plan, policy, program, arrangement or
understanding mandated by applicable Law.
(n) Taxes. (i) Each
of the Company and its Subsidiaries has filed or has caused to be filed all
material tax returns required to be filed by it (or requests for extensions,
which requests have been granted and have not expired), and all such returns are
complete and accurate in all material respects. Each of the Company
and its Subsidiaries has either paid or caused to be paid all material taxes due
and owing by the Company and its Subsidiaries to any Governmental Entity, or the
most recent financial statements contained in the Filed SEC Documents reflect an
adequate reserve (excluding any reserves for deferred taxes), if such a reserve
is required by GAAP, for all material taxes payable by the Company and its
Subsidiaries, for all taxable periods and portions thereof ending on or before
the date of such financial statements.
(ii) No deficiencies, audit
examinations, refund litigation, proposed adjustments or matters in controversy
for any material taxes (other than taxes that are not yet due and payable or for
amounts being contested in good faith and for which adequate reserves have been
established in the financial statements contained in the Filed SEC Documents)
have been proposed, asserted or assessed in writing against the Company or any
of its Subsidiaries which have not been settled and paid. All
assessments for material taxes due and owing by the Company or any of its
Subsidiaries with respect to completed and settled examinations or concluded
litigation have been paid. There is no currently effective agreement
or other document with respect to the Company or any of its Subsidiaries
extending the period of assessment or collection of any material
taxes. There are no Liens for material taxes upon the assets of the
Company or any of its Subsidiaries, other than Permitted Liens.
(iii) Neither the Company
nor any of its Subsidiaries (1) has any liability for material taxes of any
Person (other than the Company and its Subsidiaries) under Treasury Regulation
Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a
transferee or successor by contract or otherwise, (2) is a party to or bound by
any material tax sharing agreement or tax indemnity agreement, arrangement or
practice (other than such an agreement, arrangement or practice exclusively
among the Company and its Subsidiaries) or (3) has participated in any “tax
amnesty” or similar program offered by any taxing authority to avoid the
assessment of penalties or other additions to tax.
(iv) Within the last five
years, no written claim has been made by any authority in a jurisdiction where
any of the Company or any of its Subsidiaries does not file a tax return that
the Company or any of its Subsidiaries is, or may be, subject to a material
amount of tax by that jurisdiction.
(v) None of the Company or
any of its Subsidiaries will be required to include in income after the
Effective Time a material amount of taxable income attributable to gain or
income that was realized before the Effective Time as a result of any provision
of federal, state, local or foreign tax law or by agreement with any taxing
authority.
(vi) No “ownership change”
(as described in Section 382(g) of the Code) has occurred, or is expected to
occur prior to the Effective Time, that would have the effect of limiting the
use of “pre-change losses”, “excess credit”, foreign tax credit carryovers or
net capital losses, in each case, of the Company and its Subsidiaries, following
the Effective Time.
(vii) The Convertible Notes
were not treated as “corporate acquisition indebtedness” described in Section
279(b) of the Code at the time they were issued. To the Company’s
Knowledge, the comparable yield of 6.94% on the Convertible Notes is
correct. No material adjustments have been made or shall be made for
any differences between payments that were projected to have been made and
payments that were actually made or shall be made by the Company.
(viii) The term “taxes” means all
income, profits, capital gains, goods and services, branch, payroll,
unemployment, customs duties, premium, compensation, windfall profits,
franchise, gross receipts, capital, net worth, sales, use, withholding,
turnover, value added, ad valorem, registration, general business, employment,
social security, disability, occupation, real property, personal property
(tangible and intangible), stamp, transfer (including real property transfer or
gains), conveyance, severance, production, excise, duties, levies, imposts,
license, registration and other taxes (including any and all fines, penalties
and additions attributable to or otherwise imposed on or with respect to any
such taxes and interest thereon) imposed by or on behalf of any Governmental
Entity. The term “tax return” means any
return, statement, report, form, filing, customs entry, customs reconciliation
and any other entry or reconciliation, including in each case any amendments,
schedules or attachments thereto, required to be filed with any Governmental
Entity or with respect to taxes of the Company or its Subsidiaries.
(o) Intellectual
Property. (i) Section 3.01(o) of the Company
Disclosure Letter sets forth a complete and correct list, as of the date of this
Agreement, of all registered Intellectual Property owned by or licensed to the
Company or its Subsidiaries and necessary to conduct any material portion of its
business. Section 3.01(o) of the Company Disclosure Letter sets
forth a list, as of the date of this Agreement, of all jurisdictions in which
such registered Intellectual Property is registered or registrations have been
applied for and all registration and application numbers. The Company
or one of its Subsidiaries is (and will be immediately after Closing) the sole
and exclusive owner of, or has (and will have immediately after Closing) the
right to use, all Intellectual Property used in the business of the Company and
its Subsidiaries, except for such failures to own or to have the right to use
that, individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect.
(ii) Except as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, no claims are pending or, to the Knowledge of the Company,
threatened, nor are there any outstanding judgments, injunctions, orders or
decrees as of the date of this Agreement, against the Company or one of its
Subsidiaries by any person with respect to the ownership, validity or
enforceability of any Intellectual Property and, since January 1, 2008 (or
its date of formation, if later) through (and including) the date of this
Agreement, none of the Company or any of its Subsidiaries has received any
written communication alleging that the Company or one of its Subsidiaries has
violated, infringed upon, or misappropriated in any material respect any rights
relating to Intellectual Property of any person. Neither the Company nor any of
its Subsidiaries is violating, infringing or misappropriating, or has violated,
infringed or misappropriated in the past, in any material respect any material
rights relating to Intellectual Property of any person, except for any such
violation, infringement or misappropriation that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Company, no other person has
violated, infringed upon or misappropriated any Intellectual Property rights of
the Company or any of its Subsidiaries, except for any such violation,
infringement or misappropriation that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect.
(iii) In each case in which
an employee of the Company or any of its Subsidiaries has developed or created
Intellectual Property for the Company or any of its Subsidiaries, the Company
and its Subsidiaries have obtained a valid and enforceable assignment sufficient
to irrevocably transfer all such Intellectual Property to the Company or any of
its Subsidiaries, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(iv) The term “Intellectual
Property” means all intellectual property and other similar proprietary
rights in any jurisdiction, whether registered or unregistered, including such
rights in and to: any patent (including all reissues, divisions, continuations,
continuations-in-part and extensions thereof), patent application, patent right;
any trademark, trademark registration, trademark application, servicemark, trade
name, business name, brand name; any copyright, copyright registration, design,
design registration, database rights; any software; Technology; any internet
domain names; or any right to any of the foregoing.
(v) The term “Technology” means all
trade secrets, confidential information, inventions whether patentable or not,
formulae, processes, procedures, research records, records of inventions, test
information, data, technology and know-how; data exclusivity; product and
regulatory files; and market surveys and marketing information.
(p) Environmental
Matters. (i) Except for those matters that would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (A) each of the Company and its Subsidiaries is in
compliance with all applicable Environmental Laws, and neither the Company nor
any of its Subsidiaries has received any written communication alleging that the
Company is in violation of, or has any liability under, any Environmental Law,
(B) each of the Company and its Subsidiaries possesses and is in compliance
with all Authorizations required under applicable Environmental Laws to conduct
its business as presently conducted, (C) there are no Environmental Claims
pending or, to the Knowledge of the Company, threatened against the Company or
any of its Subsidiaries and there is no Judgment with respect to Environmental
Claims outstanding against the Company or any of its Subsidiaries and
(D) there is no presence of any Hazardous Materials at, and there has been
no Release or threatened Release of any Hazardous Materials at, on, under or
from, any of the real property owned or leased by the Company or any of its
Subsidiaries or any other property in a manner that would reasonably be expected
to result in an Environmental Claim against the Company or any of its
Subsidiaries, or against any person or entity whose liability for any
Environmental Claim the Company or any of its Subsidiaries may have retained or
assumed either contractually or by operation of law.
(ii) The term “Environmental Claims”
means any administrative or judicial actions, suits, orders, claims, proceedings
or written notices of noncompliance by or from any Governmental Entity or any
other person alleging liability arising out of the Release, threatened Release,
or presence of any Hazardous Material or the failure to comply with any
Environmental Law or any Authorization issued thereunder. The term
“Environmental
Law” means any Law relating to pollution or protection of the environment
or natural resources or human exposure to Hazardous Materials. The
term “Hazardous
Materials” means any materials or wastes that are listed or defined in
relevant form, quantity, concentration or condition as hazardous substances,
hazardous wastes, hazardous materials, extremely hazardous substances, toxic
substances, pollutants, contaminants or terms of similar import under any
applicable Environmental Law. The term “Release” means any
release, spill, emission, leaking, pumping, emitting, discharging, injecting,
escaping, leaching, dumping, disposing or migrating into or through the
environment.
(q) Insurance. Except
as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (i) the Company and its Subsidiaries maintain
insurance in such amounts and against such risks as is sufficient to comply with
applicable Law, (ii) all insurance policies of the Company and its
Subsidiaries are in full force and effect, except for any expiration thereof in
accordance with the terms thereof, (iii) neither the Company nor any of its
Subsidiaries is in breach of, or default under, any such insurance policy and
(iv) no written notice of cancellation or termination has been received
with respect to any such insurance policy, other than in connection with
ordinary renewals.
(r) Voting
Requirements. Assuming the accuracy of the representations and
warranties set forth in Section 3.02(f), the affirmative vote of holders of
two-thirds of all the outstanding shares of Company Common Stock entitled to
vote thereon at the Stockholders’ Meeting or any adjournment or postponement
thereof to approve this Agreement (the “Stockholder
Approval”) is the only vote of the holders of any class or series of
capital stock of the Company necessary for the Company to adopt this Agreement
and approve the transactions contemplated hereby.
(s) State Takeover
Statutes. Assuming the accuracy of the representations and
warranties set forth in Section 3.02(f), the provisions of Chapters 110C,
110D and 110F of the General Laws of Massachusetts are inapplicable to this
Agreement, the Share Exchange and the Transactions, and no other state takeover
statute applies to this Agreement, the Share Exchange or the other transactions
contemplated by this Agreement.
(t) Brokers and Other
Advisors. No broker, investment banker, financial advisor or
other person, other than Xxxxxxx, Xxxxx & Co., the fees and expenses of
which will be paid by the Company, is entitled to any broker’s, finder’s or
financial advisor’s fee or commission in connection with the Share Exchange and
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of the Company.
(u) Opinions of Financial
Advisors. The Board of Directors of the Company has received
the opinion of Xxxxxxx, Sachs & Co. dated the date of this Agreement, to the
effect that, as of such date, the Share Exchange Consideration is fair, from a
financial point of view, to the holders of shares of Company Common
Stock. A copy of the written opinion of Xxxxxxx, Xxxxx & Co. will
be delivered to Parent promptly following receipt by the Company.
(v) No Other Representations or
Warranties. Except for the representations and warranties
contained in this Section 3.01, Parent and Sub acknowledge that neither the
Company nor any person on behalf of the Company makes any other express or
implied representation or warranty with respect to the Company or any of its
Subsidiaries or with respect to any other information provided to Parent or Sub
in connection with the transactions contemplated by this
Agreement. Neither the Company nor any other person will have or be
subject to any liability or indemnification obligation to Parent, Sub or any
other person resulting from the distribution to Parent or Sub, or Parent’s or
Sub’s use of, any such information, including any information, documents,
projections, forecasts or other material made available to Parent or Sub in
certain “data rooms” or management presentations in expectation of the
transactions contemplated by this Agreement, unless and then only to the extent
that any such information is expressly included in a representation or warranty
contained in this Section 3.01.
SECTION 3.02. Representations and Warranties of Parent and
Sub. Parent and Sub represent and warrant to the Company
as follows:
(a) Organization, Standing and
Corporate Power. Each of Parent and Sub is duly organized,
validly existing and in good standing (where such concept is recognized under
applicable Law) under the Laws of its jurisdiction of organization and has all
requisite corporate power and authority to carry on its business as presently
conducted.
(b) Authority;
Noncontravention. Each of Parent and Sub has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the Transactions. The execution and delivery of this
Agreement and the consummation of the Transactions, have been duly authorized by
all necessary corporate action on the part of Parent and Sub, and no other
corporate proceedings (including any shareholder action) on the part of Parent
or Sub are necessary to authorize this Agreement or to consummate the
Transactions. This Agreement has been duly executed and delivered by
Parent and Sub and, assuming the due authorization, execution and delivery by
the Company, constitutes a legal, valid and binding obligation of Parent and
Sub, enforceable against Parent and Sub in accordance with its terms, subject,
as to enforceability, to bankruptcy, insolvency and other Laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles. The execution and delivery of this Agreement do not, and
the consummation of the Transactions, and compliance with the provisions of this
Agreement will not, conflict with, or result in any violation or breach of, or
default (with or without notice or lapse of time, or both) under, create or
affect any rights under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a benefit under, any
requirement to provide notice to, or require consent or approval from, the other
party thereto, or result in the creation of any Lien upon any of the properties
or assets of Parent or Sub under, any provision of (A) the certificate of
incorporation or bylaws of Parent or the articles of organization or bylaws of
Sub or (B) subject to the filings and other matters involving Governmental
Entities referred to in the immediately following sentence, (i) any
Contract to which Parent or Sub or any of their respective Subsidiaries is a
party or by which any of their respective properties or assets are bound and
that is material for Parent, Sub and their Subsidiaries taken as a whole, or
(ii) any Law or Judgment or related settlement, in each case applicable to
Parent or Sub or any of their respective Subsidiaries or any of their respective
properties or assets, and that is material for Parent, Sub and their
Subsidiaries taken as a whole. No consent, approval, order or
authorization of, registration, declaration or filing with, or notice to, any
Governmental Entity is required to be obtained or made by or with respect to
Parent or Sub or any of their respective Subsidiaries in connection with the
execution and delivery of this Agreement by Parent and Sub or the consummation
by Parent and Sub of the Transactions, except for (I) the filing of a
premerger notification and report form by Parent and Sub under the HSR Act and
the filings and receipt, termination or expiration, as applicable, of such other
approvals or waiting periods as may be required under any Merger Control Law,
(II) the filing of the Articles of Share Exchange with the Secretary of the
Commonwealth of Massachusetts and (III) such other consents, approvals, orders,
authorizations, registrations, declarations, filings and notices, the failure of
which to be obtained or made would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect.
(c) Information
Supplied. None of the information supplied or to be supplied
by Parent or Sub for inclusion or incorporation by reference in the Proxy
Statement will, at the date it is first mailed to the stockholders of the
Company and at the time of the Stockholders’ Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
(d) Capital
Resources. Parent has cash on hand and committed financing
that, together, will at the Effective Time be sufficient to effect the
Transactions, including to pay the Share Exchange Consideration, the Equity
Award Amounts, the Stock Equivalent Amounts and all associated costs and
expenses. Parent has made available to the Company a copy of the
Syndicated Dual-Currency Term Loan Facility Agreement dated 28 February 2010, by
and among Parent, Merck Financial Services GmbH, a limited liability company
incorporated under the laws of Germany, Commerzbank Aktiengesellschaft, Filiale
Luxemburg, BNP Paribas, Commerzbank Aktiengesellschaft, Xxxxxxx Xxxxx
International and the other financial institutions party thereto (the “Credit Agreement”
and, the financing contemplated thereby, the “Financing”), which
Credit Agreement is in full force and effect and is a legal, valid and binding
obligation of Parent and the other parties thereto. No event has
occurred that, with or without notice, lapse of time or both, would constitute a
default or breach on the part of Parent or any of its Subsidiaries under any
term or condition of the Credit Agreement, and Parent has no reason to believe
that any portion of the Financing to be made thereunder will not be available to
Parent or Sub on a timely basis to consummate the Transactions.
(e) Operation and Ownership of
Sub. Sub has been formed solely for the purpose of engaging in
the Transactions and, prior to the Effective Time, will not have engaged in any
business activities, other than activities pursuant to this
Agreement. Parent owns, beneficially and of record, all of the
outstanding shares of capital stock of Sub, free and clear of all Liens (other
than any Liens created pursuant to the Financing, if any).
(f) Ownership of Company Common
Stock. None of Parent, Sub or any of their Subsidiaries
beneficially owns (within the meaning of Section 13 of the Exchange Act and the
rules and regulations promulgated thereunder), or will prior to the Closing Date
beneficially own, any shares of Company Common Stock, or is a party, or will
prior to the Closing Date become a party, to any Contract, arrangement or
understanding (other than this Agreement) for the purpose of acquiring, holding,
voting or disposing of any shares of Company Common Stock.
(g) Litigation. There
is no suit, action or proceeding pending or, to the Knowledge of Parent or Sub,
threatened against Parent or Sub or any of their respective Subsidiaries that,
individually or in the aggregate, would reasonably be expected to have a Parent
Material Adverse Effect. There is no Judgment outstanding against
Parent or Sub or any of their respective Subsidiaries that, individually or in
the aggregate, would reasonably be expected to have a Parent Material Adverse
Effect.
(h) Brokers and Other
Advisors. No broker, investment banker, financial advisor or
other person, other than Guggenheim Partners, LLC and Xxxxxxx Xxxxxxxx Partners
LP, the fees and expenses of which will be paid by Parent, is entitled to any
broker’s, finder’s or financial advisor’s fee or commission in connection with
the Share Exchange and the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of Parent or Sub.
(i) No Other Representations or
Warranties. Except for the representations and warranties
contained in this Section 3.02, the Company acknowledges that none of
Parent, Sub or any other person on behalf of Parent or Sub makes any other
express or implied representation or warranty with respect to Parent or Sub or
with respect to any other information provided to the Company in connection with
the transactions contemplated hereby. Neither Parent, Sub nor any other person
will have or be subject to any liability or indemnification obligation to the
Company, its Subsidiaries or any other person resulting from the distribution to
the Company, or the Company’s use of, any such information, unless and then only
to the extent that any such information is expressly included in a
representation or warranty contained in this Section 3.02.
Covenants
Relating to Conduct of Business
SECTION 4.01. Conduct
of Business. (a) Except as set forth in
Section 4.01 of the Company Disclosure Letter, contemplated, required or
permitted by this Agreement, required by Law or consented to in writing by
Parent (such consent not to be unreasonably withheld or delayed to the extent
not otherwise stated below), during the period from the date of this Agreement
to the Effective Time, the Company shall, and shall cause each of its
Subsidiaries to, carry on its business in the ordinary
course. Without limiting the generality of the foregoing, except as
set forth in Section 4.01 of the Company Disclosure Letter, contemplated,
required or permitted by this Agreement, required by Law (including, as
applicable, Section 409A of the Code) or consented to in writing by Parent
(such consent not to be unreasonably withheld or delayed for any item other than
those referred to below in clauses (i) – (iv), (v)(A), (vi), (vii), (xii) and
(xvii) and, to the extent pertaining to any item covered by such clauses, clause
(xviii)), during the period from the date of this Agreement to the Effective
Time, the Company shall not, and shall not permit any of its Subsidiaries
to:
(i) declare, set aside or pay any
dividends on, or make any other distributions (whether in cash, stock or
property) in respect of, any of its capital stock, other than dividends or
distributions by a direct or indirect wholly owned Subsidiary of the Company to
its parent;
(ii) split, combine or reclassify any
of its capital stock or issue or authorize the issuance of any other securities
in lieu of or in substitution for shares of its capital stock;
(iii) purchase, redeem or otherwise
acquire, directly or indirectly, any shares of its capital stock or any rights,
warrants or options to acquire any such shares, other than (A) the
acquisition by the Company of shares of Company Common Stock in connection with
the surrender of shares of Company Common Stock by holders of Company Stock
Options in order to pay the exercise price of the Company Stock Options, (B) the
withholding of shares of Company Common Stock to satisfy tax obligations with
respect to awards granted pursuant to the Company Stock Plan, (C) the
acquisition by the Company of Company Stock Options, Company Performance RSU
Awards and Company RSU Awards in connection with the forfeiture of such awards,
(D) the acquisition by the trustee of the Company 401(k) Plan of shares of
Company Common Stock in order to satisfy participant elections under the Company
401(k) Plan, (E) the acquisition by the administrator of the Irish Share Scheme
of shares of Company Common Stock in order to satisfy participant elections
under the Irish Share Scheme, (F) the extinguishment of rights pursuant to
Supplemental Plan Stock Equivalents in connection with the change in a
participant’s investment election under the Supplemental Plan and (G) the
extinguishment of rights pursuant to Company Stock Equivalents outstanding under
the Specified Deferred Compensation Plans in connection with the cash settlement
thereof;
(iv) issue, deliver, transfer or sell
any shares of its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any such
shares, voting securities or convertible securities, or any “phantom” stock,
“phantom” stock rights, stock appreciation rights or stock based performance
units, other than (A) upon the exercise of Company Stock Options outstanding on
the date of this Agreement, in accordance with their present terms, (B) upon the
vesting of Company RSU Awards and Performance RSU Awards outstanding on the date
of this Agreement, in accordance with their present terms, (C) as required to
comply with any Company Benefit Plan, Company Benefit Agreement or other written
agreement as in effect on the date of this Agreement, (D) as set forth in
Section 4.01(a)(iv) of the Company Disclosure Letter, (E) upon the conversion of
the Convertible Notes outstanding on the date of this Agreement, in accordance
with their present terms, (F) the issuance of Company Stock Equivalents pursuant
to the Specified Deferred Compensation Plans and (G) the issuance of shares of
Company Common Stock and rights to acquire such shares under the Irish Share
Scheme;
(v) amend or propose any change in (A)
the Company Articles of Organization or the Company Bylaws or (B) the comparable
organizational documents of any Subsidiary of the Company;
(vi) merge or consolidate with, or
purchase, directly or indirectly, whether by purchase, Share Exchange,
consolidation or acquisition of stock or assets or otherwise, an equity interest
in or a substantial portion of the assets of, any person or any division or
business thereof, or purchase any other properties or assets, or make any
investment, if the aggregate amount of the consideration paid or transferred (in
each case, including the value of any assumed liabilities) by the Company and
its Subsidiaries in connection with all such transactions would exceed $20.0
million, other than any such action (A) solely between or among the Company and
its Subsidiaries or (B) in the ordinary course of business consistent with past
practice (it being understood that any Share Exchange or consolidation, or the
purchase of an equity interest in or a substantial portion of the assets of, any
person or any division or business thereof is not in the ordinary course of
business);
(vii) sell, lease, license or otherwise
dispose of any of its properties or assets (including capital stock of any
Subsidiary of the Company) with a value in excess of $20.0 million
(including the value of any assumed liabilities), other than (A) sales or other
dispositions of inventory and other assets in the ordinary course of business
consistent with past practice and (B) the licensing or sublicensing of
Intellectual Property in the ordinary course of business consistent with past
practice;
(viii) pledge, encumber or otherwise
subject to a Lien (other than a Permitted Lien) any of its properties or assets,
other than, except with respect to capital stock of any Subsidiary of the
Company, in the ordinary course of business so long as the value of such
property or asset does not exceed $10.0 million individually or $20.0 million in
the aggregate;
(ix) (A) incur any indebtedness
for borrowed money, issue or sell any debt securities or warrants or other
rights to acquire any debt securities of the Company or any of its Subsidiaries,
guarantee any such indebtedness or any debt securities of another person or
enter into any “keep well” or other agreement to maintain any financial
statement condition of another person (collectively, “Indebtedness”) or
materially alter, amend or modify any Contract in respect of Indebtedness, other
than (1) Indebtedness incurred, assumed or otherwise entered into in the
ordinary course of business (including any borrowings under the Company’s
existing credit facilities and in respect of letters of credit, in each case in
the ordinary course of business) and (2) Indebtedness incurred in
connection with the refinancing of Indebtedness existing on the date of this
Agreement (or incurred hereafter in accordance with clause (1) above) in
connection with the scheduled expiration or maturity of the Company’s two
short-term revolving credit facilities in Japan or (B) make or forgive any
loans, guarantees or advances or make capital contributions to, or investments
in, any other person, other than (1) to any of the Subsidiaries of the
Company, (2) pursuant to clause (vi) above or (3) with respect to an amount
not in excess of $20.0 million (in the case of capital contributions and
investments) or $5.0 million (in the case of loans, guarantees and
advances);
(x) enter into or assume any swap, cap,
floor, collar, futures contract, forward contract, option and any other
derivative financial instrument, contract or arrangement, based on any
commodity, security, instrument, asset, rate or index of any kind or nature
whatsoever, whether tangible or intangible, (including for interest rate and
foreign exchange rate hedging), except foreign exchange hedging on customary
commercial terms in compliance with the Company’s hedging policies in effect on
the date of this Agreement;
(xi) except (A) as required pursuant to
the terms of any Company Benefit Plan or Company Benefit Agreement or other
written agreement in effect on the date of this Agreement, (B) as otherwise
expressly permitted by this Agreement, (C) as may be required to avoid adverse
treatment under Section 409A of the Code or (D) as set forth in Section
4.01(a)(xi) of the Company Disclosure Letter, (1) grant to any executive officer
or director of the Company any increase in compensation, (2) grant to any
officer, director or employee of the Company or any of its Subsidiaries any
increase in severance or termination pay, (3) enter into any (x) employment,
consulting or severance agreement with any officer, director or employee of the
Company or any of its Subsidiaries pursuant to which the total annual
compensation or the aggregate severance benefits exceed $250,000 per officer,
director or employee or (y) any termination agreement or other agreement
containing change of control provisions with any officer, director or employee
of the Company or any of its Subsidiaries, (4) establish, adopt, enter into or
amend in any material respect any Company Labor Agreement to which the Company
or any of its Subsidiaries is a party, or other employee organization, or
Company Benefit Plan or Company Benefit Agreement, (5) take any action to
accelerate any rights or benefits under any Company Benefit Plan or Company
Benefit Agreement, (6) materially change any actuarial or other assumptions used
to calculate funding obligations with respect to any Company Benefit Plan or
change the manner in which contributions to such plans are made or the basis on
which such contributions are determined, except as may be required by GAAP or
(7) forgive any loans to directors, officers or employees of the Company or any
of its Subsidiaries; provided, however, that the
foregoing clauses (1), (2), (3), (4) and (5) shall not restrict the Company or
any of its Subsidiaries from entering into or making available to newly hired
employees or to employees in the context of promotions based on job performance
or workplace requirements, in each case in the ordinary course of business,
plans, agreements, benefits and compensation arrangements (including incentive
grants) that have a value that is consistent with the past practice of making
compensation and benefits available to newly hired or promoted employees in
similar positions;
(xii) make any material change in
accounting methods, principles or practices affecting the consolidated assets,
liabilities or results of operations of the Company, other than as required (A)
by GAAP (or any interpretation thereof), including pursuant to standards,
guidelines and interpretations of the Financial Accounting Standards Board or
any similar organization, or (B) by Law, including Regulation S-X
under the Securities Act;
(xiii) make, change or revoke any
material tax election, file any amended tax return with respect to any material
tax, settle or finally resolve any controversy with respect to any material tax,
surrender any claim for a material refund of taxes or change any annual tax
accounting period, in each case, other than in the ordinary course of business
consistent with past practice;
(xiv) make any capital expenditures,
other than (A) in accordance with the Company’s capital expenditure plan
previously provided to Parent, and (B) otherwise in an aggregate amount for all
such capital expenditures made pursuant to this clause (B) not to exceed $10.0
million;
(xv) (A) abandon, voluntarily permit to
lapse before expiration or otherwise dispose of any Material Intellectual
Property, (B) xxxxx x Xxxx (other than Permitted Liens) over, or permit any such
Lien to encumber, any Material Intellectual Property, or (C) sell, transfer or
license to any person or otherwise extend any Material Intellectual Property,
other than non-exclusive licenses of Intellectual Property rights granted by the
Company or any of its Subsidiaries in the ordinary course of business consistent
with past practice that do not involve, individually, payments or other
obligations of the Company and its Subsidiaries or of any other person with an
aggregate value reasonably estimated by the Company to be in excess of $7.0
million in any calendar year;
(xvi) settle any Action before a
Governmental Entity for an amount in excess of $10.0 million or for any
obligation or liability of the Company or any of its Subsidiaries in excess of
such amount or agree to any material limitation or restriction on any aspect of
the conduct of the Company’s or its Subsidiaries’ business (or, after giving
effect to the Share Exchange, Parent’s or its Subsidiaries’
business);
(xvii) enter into any Contract that
would, after giving effect to the Share Exchange, limit or purport to limit in
any material respect the type of business in which Parent and its Subsidiaries
(other than the Company and its Subsidiaries) may engage, the type of goods or
services that Parent and its Subsidiaries (other than the Company and its
Subsidiaries) may purchase, manufacture, produce, import, export, offer for
sale, sell or distribute or the manner or location in which any of them may so
engage in any business; or
(xviii) authorize any of, or commit or
agree to take any of, the foregoing actions.
(b) Advice of
Changes. The Company shall promptly give Parent written notice
upon becoming aware of any material event, development or occurrence that would
reasonably be expected to give rise to a failure of any condition precedent set
forth in Sections 6.01 or 6.02. Parent shall promptly give the
Company written notice upon becoming aware of any material event, development or
occurrence that would reasonably be expected to give rise to a failure of any
condition precedent set forth in Sections 6.01 or 6.03. Delivery of notification
pursuant to this Section 4.01(b) shall not limit or otherwise affect the
remedies available hereunder to any party receiving such notice.
SECTION 4.02. No
Solicitation. (a) The Company shall not and
shall cause its Subsidiaries and Representatives not to, directly or indirectly,
solicit, initiate or knowingly encourage (including by way of providing
information) the submission of any inquiries, proposals or offers that
constitute or may reasonably be expected to lead to any Takeover Proposal, or
engage in, or continue, any discussions or negotiations with respect thereto, or
otherwise cooperate with or assist or participate in, or facilitate any such
inquiries, proposals, offers, discussions or negotiations with respect thereto
(including, in each case, with respect to any Person that has previously been
invited into a process to make, or participate in any discussions regarding, a
Takeover Proposal and signed a confidentiality agreement (any such person, a
“Bidder”)).
(b) The Company shall (i)
promptly request each Person that has executed a confidentiality agreement prior
to the date of this Agreement in connection with such Person’s consideration of
a transaction involving the Company or any of its Subsidiaries (or any portion
thereof) to return or destroy all confidential information heretofore furnished
to such Person or its Representatives by or on behalf of the Company or any of
its Subsidiaries and (ii) not amend or waive, and shall enforce, the provisions
of each such confidentiality agreement, including any standstill provision
contained therein.
(c) Notwithstanding anything
to the contrary contained in Section 4.02(a), if at any time prior to obtaining
the Stockholder Approval, (i) the Company has received a written Takeover
Proposal from a third party that was not solicited after the date hereof, (ii)
the Board of Directors of the Company determines in good faith, after
consultation with its financial advisor and outside legal counsel, that such
Takeover Proposal constitutes or would reasonably be expected to result in a
Superior Proposal and (iii) such Takeover Proposal is not a result of the
Company’s or its Subsidiaries’ or Representative’s breach of this Section 4.02,
then the Company may (A) furnish information with respect to the Company and its
Subsidiaries to the person making such Takeover Proposal, and (B) engage in
discussions or negotiations with the person making such Takeover Proposal
regarding such Takeover Proposal; provided that the
Company (x) will not, and will not allow its Subsidiaries or its or their
Representatives to, disclose any non-public information to such person without
first entering into a customary confidentiality agreement with such person
containing confidentiality provisions on terms not more favorable to such other
person than those contained in the Confidentiality Agreement, and (y) will
provide, in accordance with the terms of the Confidentiality Agreement and on a
contemporaneous basis, to Parent any material non-public information concerning
the Company or its Subsidiaries provided to such other person which was not
previously provided to Parent.
The term “Takeover Proposal”
means any bona fide inquiry, proposal or offer from any person or group relating
to (a) any direct or indirect acquisition or purchase, in a single
transaction or a series of transactions, of (1) 15% or more (based on the
fair market value thereof, as determined by the Board of Directors of the
Company in good faith) of assets (including capital stock of the Subsidiaries of
the Company, and by means of any tender offer for the capital stock of, or any
merger, consolidation, business combination, recapitalization, liquidation,
dissolution, binding share exchange or similar transaction involving, any
Subsidiary of the Company) of the Company and its Subsidiaries, taken as a
whole, or (2) 15% or more of the outstanding shares of Company Common
Stock, (b) any tender offer or exchange offer that, if consummated, would
result in any person or group owning, directly or
indirectly, 15% or more of the outstanding shares of Company
Common Stock or (c) any merger, consolidation, business combination,
recapitalization, liquidation, dissolution, binding share exchange or similar
transaction involving the Company pursuant to which any person or group (or the
shareholders of any person) would own, directly or indirectly, 15% or more of
the equity securities of the Company or of the surviving entity in a merger
involving the Company or the resulting direct or indirect parent of the Company
or such surviving entity, other than, in each case, the transactions
contemplated by this Agreement.
The term “Superior Proposal”
means any bona fide Takeover Proposal that if consummated would result in a
person or group (or the shareholders of any person) owning, directly or
indirectly, (a) 50% or more of any class of equity securities of the
Company or of the surviving entity in a merger involving the Company or the
resulting direct or indirect parent of the Company or such surviving entity or
(b) 50% or more (based on the fair market value thereof, as determined by
the Board of Directors of the Company in good faith) of the assets of the
Company and its Subsidiaries (including capital stock of the Subsidiaries of the
Company, and by means of any tender offer for the capital stock of, or any
merger, consolidation, business combination, recapitalization, liquidation,
dissolution, binding share exchange or similar transaction involving, any
Subsidiary of the Company), taken as a whole, which the Board of Directors of
the Company determines in good faith (after consultation with its financial
advisor and outside counsel) would be more favorable to the stockholders of the
Company from a financial point of view than the Share Exchange, taking into
account all financial, legal, regulatory and other aspects of such proposal and
of this Agreement (including the relative risks of non-consummation and any
changes to the terms of this Agreement proposed by Parent to the Company, prior
to the expiration of the Notice Period referred to below in response to such
proposal or otherwise).
(d) From and after the date
hereof, in the event that the Company or any of its Subsidiaries or
Representatives receives (i) any Takeover Proposal or an expression of interest
to make a Takeover Proposal or (ii) a request or attempt to initiate or continue
any discussions with respect to a Takeover Proposal or an expression of interest
to make a Takeover Proposal, the Company shall promptly (and in any event within
24 hours) after receipt thereof notify Parent of the material terms and
conditions of any such Takeover Proposal, such expression of interest or any
such request or attempt, and the identity of the person making, seeking or
contemplating such Takeover Proposal or such expression of interest or any such
request or attempt. The Company shall keep Parent reasonably
informed, on a current basis, of the status and terms of any such Takeover
Proposal or such expression of interest (including any material amendments or
changes thereto) and the status of any related discussions or negotiations,
including any change in the Company’s intentions as previously
notified.
(e) Neither the Board of
Directors of the Company nor any committee thereof shall (i)(A) directly or
indirectly withhold or withdraw (or qualify or modify in a manner adverse to
Parent), or publicly propose to withhold, withdraw (or qualify or modify in a
manner adverse to Parent), the adoption, recommendation or declaration of
advisability by such Board of Directors or any such committee of this Agreement
or the Share Exchange or (B) recommend the approval or adoption of, or approve
or adopt, or publicly propose to recommend, approve or adopt, any Takeover
Proposal (any action described in this clause (i) being referred to as an
“Adverse
Recommendation Change”) or (ii) approve, adopt or recommend, or publicly
propose to approve, adopt or recommend, or cause or permit the Company or any of
its Subsidiaries to execute or enter into (and none of the Company or any of its
Subsidiaries shall execute or enter into), any letter of intent, memorandum of
understanding, agreement in principle, merger agreement, share exchange
agreement, acquisition agreement, agreement which requires the Company to
abandon or terminate this Agreement or the Share Exchange, or other agreement
related to any Takeover Proposal, other than any confidentiality agreement
referred to in Section 4.02(c) (an “Acquisition
Agreement”). Notwithstanding the foregoing or anything else in
this Agreement to the contrary, at any time prior to obtaining the Stockholder
Approval and subject to compliance with Section 5.06(b), the Board of
Directors of the Company may: (x) if and to the extent the Board of
Directors of the Company determines in good faith (after consultation with its
financial advisor and outside legal counsel) that the failure to take such
action would be inconsistent with its fiduciary duties under applicable Law,
make an Adverse Recommendation Change and (y) in response to a Superior
Proposal that did not result from a breach of this Section 4.02, cause the
Company to terminate this Agreement and, concurrently with or after such
termination, cause the Company to enter into an Acquisition Agreement; provided, however, that
(1) no Adverse Recommendation Change may be made, (2) no termination
of this Agreement pursuant to this Section 4.02(e) may be made and (3) no
Acquisition Agreement may be executed or entered into by the Company, until
after the fifth business day (or such subsequent business days as provided for
by clause (ii) of this sentence) (the period inclusive of all such days, the
“Notice
Period”) following Parent’s receipt of written notice from the Company
advising Parent that the Board of Directors of the Company intends to (x) in the
case of clause (1) above, make an Adverse Recommendation Change (a “Notice of Adverse
Recommendation”) or (y) in the case of clauses (2) and (3) above,
terminate this Agreement and simultaneously enter into an Acquisition Agreement
pursuant to this Section 4.02(e) (a “Notice of Superior
Proposal”) and specifying the reasons therefor, including, if the basis
of the proposed action by the Board of Directors is a Superior Proposal, the
material terms and conditions of any such Superior Proposal (it being understood
and agreed that (i) during the Notice Period the Company shall, and shall cause
its financial advisors and outside legal counsel to, negotiate with Parent in
good faith (to the extent Parent desires to negotiate) and (ii) any amendment to
the terms of such Superior Proposal shall require a new Notice of Adverse
Recommendation or Notice of Superior Proposal and a two-business day extension
of the Notice Period then applicable). In determining whether to make
an Adverse Recommendation Change or to cause the Company to so terminate this
Agreement pursuant to the terms of this Section 4.02(e), the Board of Directors
of the Company shall take into account any changes to the terms of this
Agreement proposed by Parent to the Company in response to a Notice of Adverse
Recommendation, a Notice of Superior Proposal or otherwise.
(f) Nothing contained in
this Section 4.02 or elsewhere in this Agreement shall prohibit the Company
from (i) taking and disclosing to its stockholders a position contemplated by
Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or
(ii) making any disclosure to its stockholders if the Board of Directors of
the Company determines in good faith (after consultation with its outside
counsel) that failure to do so would be inconsistent with its fiduciary duties
under applicable Law, it being understood, however, that this clause (ii) shall
not be deemed to permit the Board of Directors of the Company to make an Adverse
Recommendation Change or take any of the actions referred to in clause (ii) of
Section 4.02(e) except, in each case, to the extent permitted by Section
4.02(e).
Additional
Agreements
SECTION 5.01. Preparation of the Proxy Statement; Stockholders’
Meeting. (a) As promptly as reasonably
practicable following the date of this Agreement, the Company shall prepare the
Proxy Statement and, as promptly as reasonably practicable after the date
hereof, but in any event within twenty (20) business days after the date of this
Agreement, file the Proxy Statement with the SEC. Parent shall
provide to the Company all information concerning Parent and Sub as may be
reasonably requested by the Company in connection with the Proxy Statement and
shall otherwise assist and cooperate with the Company in the preparation of the
Proxy Statement and resolution of comments referred to below. The
Company shall promptly notify Parent upon the receipt of any comments from the
SEC or the staff of the SEC or any request from the SEC or the staff of the SEC
for amendments or supplements to the Proxy Statement, and shall promptly provide
Parent with copies of all correspondence between the Company and its
Representatives, on the one hand, and the SEC or the staff of the SEC, on the
other hand. The Company shall use its reasonable best efforts to
respond as promptly as practicable to any comments of the SEC or the staff of
the SEC with respect to the Proxy Statement and to cause the Proxy Statement to
be mailed to the stockholders of the Company as promptly as
practicable. Prior to filing or mailing the Proxy Statement (or any
amendment or supplement thereto) or responding to any comments of the SEC or the
staff of the SEC with respect thereto, the Company shall provide Parent a
reasonable opportunity to review and to propose comments on such document or
response.
(b) The Company shall, as
promptly as reasonably practicable after the SEC confirms that it has no further
comments on the Proxy Statement or advises the Company that it is not reviewing
the Proxy Statement, establish a record date for, duly call, give notice of,
convene and hold a meeting of its stockholders (the “Stockholders’
Meeting”) for the purpose of obtaining the Stockholder Approval, and
shall not postpone or adjourn such meeting except to the extent required by
Law. Subject to the ability of the Board of Directors
of the Company to make an Adverse Recommendation Change pursuant to
Section 4.02(e), the Company shall, through its Board of Directors,
recommend to its stockholders that they approve of this Agreement and shall
include such recommendation in the Proxy Statement.
SECTION 5.02. Access
to Information; Confidentiality. The Company shall afford
to Parent, and to Parent’s officers, employees, accountants, counsel,
consultants, financial advisors and other Representatives, reasonable access
during normal business hours during the period prior to the earlier of the
Effective Time and the termination of this Agreement to all of its and its
Subsidiaries’ properties, books and records and to those employees of the
Company to whom Parent reasonably requests access, and, during such period, the
Company shall furnish, as promptly as practicable, to Parent all information
concerning its and its Subsidiaries’ business, properties and personnel as
Parent may reasonably request (including the right to conduct Phase I
Environmental Site Assessments, it being agreed, however, that the foregoing
shall not permit Parent or any such Representatives to conduct any environmental
testing or sampling). Notwithstanding the foregoing, neither the
Company nor any of its Subsidiaries shall be required to provide access to or
disclose information where the Company reasonably determines that such access or
disclosure would jeopardize the attorney-client privilege of the Company or any
of its Subsidiaries or contravene any Law or any Contract to which the Company
or any of its Subsidiaries is subject. The parties shall make
appropriate substitute disclosure arrangements in circumstances where the
previous sentence applies. Except for disclosures expressly permitted
by the terms of that certain confidentiality letter agreement dated as of
February 3, 2010, between Parent and the Company (as it may be amended from time
to time, the “Confidentiality
Agreement”), Parent shall hold, and shall cause their respective
officers, employees, accountants, counsel, financial advisors and other
Representatives to hold, all information received from the Company or its
Representatives, directly or indirectly, in confidence in accordance with the
Confidentiality Agreement.
SECTION 5.03. Reasonable Best
Efforts. (a) Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties hereto agrees to use
its reasonable best efforts to take, or cause to be taken, all actions, and to
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, in the most expeditious manner practicable, the Transactions,
including using reasonable best efforts to accomplish the following (provided, however, that this
Section 5.03 shall not apply to any actions related to the Financing as to which
Section 5.09 shall apply exclusively in determining Parent’s obligations with
respect thereto): (i) the taking of all acts necessary to cause
the conditions to Closing to be satisfied as promptly as practicable,
(ii) the obtaining of all necessary actions or nonactions, waivers,
consents and approvals from Governmental Entities and the making of all
necessary registrations, declarations and filings (including filings
under the HSR Act and other registrations, declarations and filings with, or
notices to, Governmental Entities, including pursuant to Merger Control Laws)
and the taking of all steps as may be necessary to obtain an approval or waiver
from, or to avoid a claim, action, suit, proceeding or investigation by, any
Governmental Entity, (iii) the obtaining of consents, approvals and waivers
from third parties reasonably requested by Parent to be obtained in connection
with the Transactions; provided, however, that in no
event shall the Company or any of its Subsidiaries be required to make any
payment to such third parties or concede anything of value in any case prior to
the Effective Time in order to obtain any such consent, approval or waiver, and
(iv) the execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the purposes
of, this Agreement. It is understood and agreed that “reasonable best
efforts” of a party with respect to actions or undertakings relating to any
person other than a Governmental Entity shall not include any actions or
undertakings which would reasonably be expected to result in material cost or
material harm to such party. In connection with and without limiting
the foregoing, the Company and its Board of Directors shall (A) take all
action necessary to ensure that no state takeover statute is or becomes
applicable to this Agreement, the Share Exchange or any of the other
transactions contemplated by this Agreement and (B) if any state takeover
statute becomes applicable to this Agreement, the Share Exchange or any of the
other transactions contemplated by this Agreement, take all action necessary to
ensure that the Share Exchange and the other transactions contemplated by this
Agreement may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise to minimize the effect of such
statute or regulation on this Agreement, the Share Exchange and the other
transactions contemplated by this Agreement. No party shall
voluntarily extend any waiting period under the HSR Act or any Merger Control
Law or enter into any agreement with any Governmental Entity to delay or not to
consummate the Transactions except with the prior written consent of the other
parties (such consent not to be unreasonably withheld or delayed and which
reasonableness shall be determined in light of each party’s obligation to use
reasonable best efforts to do all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Transactions).
(b) In
connection with and without limiting the foregoing, if any claim, action, suit,
proceeding or investigation is instituted (or threatened to be instituted) by
any Governmental Entity challenging any of the Transactions as violative of the
HSR Act or any Merger Control Law, Parent and the Company shall cooperate and
use all reasonable best efforts to vigorously contest and resist any such claim,
action, suit, proceeding or investigation, and to have vacated, lifted, reversed
or overturned any decree, judgment, injunction or other order, whether
temporary, preliminary or permanent, that is in effect and that prohibits,
prevents or restricts the consummation of the Transactions, including by
vigorously pursuing all available avenues of administrative and judicial appeal
unless, each of Parent and the Company reasonably determine that litigation is
not in their respective best interests. The parties shall take all
actions necessary to avoid or eliminate each and every impediment under the HSR
Act or any Merger Control Law so as to enable the consummation of the
Transactions to occur as soon as reasonably possible (and in any event no later
than the Outside Date), including (i) proposing, negotiating, committing to and
effecting, by consent decree, hold separate order or otherwise, the sale,
divestiture or disposition of such businesses, product lines or assets of the
Company, Parent and their respective Subsidiaries and (ii) otherwise taking or
committing to take actions that after the Closing Date would limit Parent’s or
its respective Subsidiaries’ freedom of action with respect to, or its or their
ability to retain, one or more of the businesses, product lines or assets of the
Company, Parent and their respective Subsidiaries, in each case as may be
required in order to avoid the entry of, or to effect the dissolution of, any
preliminary or permanent injunction which would otherwise have the effect of
preventing the consummation of the Transactions, and in that regard Parent and,
if requested by Parent, the Company shall agree to divest, sell, dispose of,
hold separate or otherwise take or commit to take any action that limits its
freedom of action with respect to, or Parent’s or their Subsidiaries’ ability to
retain, any of the businesses, product lines or assets of the Company, Parent or
any of their respective Subsidiaries; provided, however, that any
such action shall be conditioned upon the consummation of the Transaction; provided, however, that nothing
in this Agreement, including Section 5.03, shall require, or be construed to
require, Parent or the Company or any of their respective Subsidiaries to agree
to or take any action that would result in any Burdensome
Condition. For purposes of this Agreement, a “Burdensome Condition”
shall mean making proposals, executing or carrying out agreements (including
consent decrees) or submitting to Laws (a) providing for the license, sale or
other disposition or holding separate (through the establishment of trust or
otherwise) of any assets or categories of assets of Parent, the Company or any
of their respective Subsidiaries or the holding separate of the capital stock of
any Subsidiary of the Company or (b) imposing or seeking to impose any
limitation on the ability of Parent, the Company or any of their respective
Subsidiaries to conduct their respective businesses (including, with respect to,
market practices and structure) or to own such assets or to acquire, hold or
exercise full rights of ownership of the business of the Company or its
Subsidiaries or Parent or its Subsidiaries, that, in the case of clause (a) and
(b), individually or in the aggregate, would reasonably be expected to have a
material adverse effect on the business or results of operations of (i) the
Company and its Subsidiaries taken as a whole or (ii) Parent and its
Subsidiaries taken as a whole.
(c) Subject to the terms and
conditions set forth in this Agreement, and without limiting the generality of
the foregoing provisions of this Section 5.03, Parent and the Company agree that
(i) unless separate filings are required by applicable Law, all filings to any
Governmental Entity with jurisdiction over enforcement of any applicable
antitrust or competition Laws (“Governmental Antitrust
Authority”) shall be made by Parent on behalf of all parties involved,
(ii) the parties shall reasonably cooperate in all respects with each other in
the preparation of any filing or notification and in connection with any
submission, investigation or inquiry of any Governmental Antitrust Authority,
(iii) each party will supply to any competent Governmental Antitrust Authority
as promptly as practicable non-privileged information and documents (a)
requested by any Governmental Antitrust Authority or (b) that are necessary or
advisable (as reasonably determined by the parties) to permit consummation of
the transactions contemplated by this Agreement, (iv) the parties will promptly
provide each other with copies of any written communication (or written
summaries of any non-written communication) in connection with any proceeding
with any competent Governmental Antitrust Authority; (v) a party will initiate a
substantive discussion with any competent Governmental Antitrust Authority
concerning the merits of the antitrust or competition analysis only after
consultation with the other party; and (vi) the parties will promptly inform
each other in advance of the time and place of any substantive meetings or
conferences (including telephone calls) with any Governmental Antitrust
Authority concerning the merits of the antitrust or competition analysis and
give each other and their respective advisors, to the extent reasonably
practicable, the opportunity to participate in all such meetings or
conferences.
SECTION 5.04. Benefit
Plans. (a) From the Effective Time through
December 31, 2011 (the “Continuation
Period”), Parent shall provide, or shall cause the Acquired Corporation
(or in the case of a transfer of all or substantially all the assets and
business of the Acquired Corporation, its successors and assigns) to provide,
each individual who is employed by the Company or any of its Subsidiaries
immediately before the Effective Time and who is not covered by any Company
Labor Agreement (each, a “Company Employee”)
with (i) base compensation that is no less favorable than the base compensation
provided to such Company Employee immediately prior to the Effective Time, (ii)
bonus or incentive opportunities that are no less favorable in the aggregate
than the bonus or incentive opportunities (including the corresponding grant
date fair value in respect of any annual equity-based compensation award in
2010) provided to such Company Employee immediately prior to the Effective Time
and (iii) employee benefits that are substantially comparable in the aggregate
to those provided to such Company Employee immediately prior to the Effective
Time. Following the Continuation Period, the Company Employees shall
be entitled to participate in the plans of Parent, the Acquired Corporation or
their respective affiliates (the “Acquired Corporation
Plans”) to the same extent as other similarly situated employees of
Parent, the Acquired Corporation and their respective affiliates. In
addition, and without limiting the generality of the foregoing, each Company
Employee and Union Employee shall be immediately eligible to participate,
without any waiting time, in any and all Acquired Corporation Plans to the
extent coverage under any such plan replaces coverage under a comparable benefit
plan in which such Company Employee or Union Employee participates immediately
prior to the Effective Time. Notwithstanding anything herein to the
contrary, nothing herein shall prevent Parent or the Acquired Corporation from
amending or terminating any specific plan, program, policy, practice or
arrangement, or interfere with the Acquired Corporation’s obligation to make
such changes as are necessary to comply with applicable Law, or preclude the
Acquired Corporation from terminating the employment of any Company Employee for
any reason. The terms and conditions of employment for any employee
who is covered by a Company Labor Agreement (a “Union Employee”)
shall be governed by the applicable Company Labor Agreement and applicable
Law.
(b) Without limiting the
generality of Section 5.04(a), from and after the Effective Time, Parent
shall or shall cause the Acquired Corporation to assume, honor and continue
during the Continuation Period or, if later, until all obligations thereunder
have been satisfied, all of the Company’s employment, severance, retention,
termination and change in control plans, policies, programs, agreements and
arrangements (including any change in control severance agreement or other
Company Benefit Agreement between the Company and any Company Employee)
maintained by the Company or any of its Subsidiaries and all of the Company
Labor Agreements, in each case, as in effect at the Effective Time, including
with respect to any payments, benefits or rights arising as a result of the
transactions contemplated by this Agreement (either alone or in combination with
any other event), without any amendment or modification, other than any
amendment or modification required to comply with applicable Law.
(c) Without limiting the
generality of Sections 5.04(a) and 5.04(b), during the Continuation Period the
Company Employees shall be entitled to participate in the incentive compensation
plans maintained by Parent, the Acquired Corporation and their respective
affiliates (the “Acquired Corporation
Incentive Plans”), in each case to the same extent as similarly situated
employees of Parent, the Acquired Corporation or their respective affiliates;
provided that
in the case of any Company Employee whose employment is terminated by Parent,
the Acquired Corporation or their respective affiliates without cause during any
annual performance period under the Acquired Corporation Incentive Plans that
commences during the Continuation Period, such Company Employee shall be
entitled to a payment in cash equal to such Company Employee’s target annual
bonus in effect under the applicable Acquired Corporation Incentive Plan for the
applicable annual performance period, prorated to reflect the number of days
during such annual performance period that elapsed prior to such termination of
employment.
(d) With respect to all
Acquired Corporation Plans, including but not limited to any “employee benefit
plan”, as defined in Section 3(3) of ERISA, maintained by Parent or any of
its respective Subsidiaries (including any vacation, paid time-off and severance
plans), for all purposes, including determining eligibility to participate,
level of benefits and vesting, and, to the extent required by applicable Law or
any Company Labor Agreement, benefit accruals and early retirement subsidies,
each Company Employee’s and Union Employee’s service with the Company or any of
its Subsidiaries (as well as service with any predecessor employer of the
Company or any such Subsidiary, to the extent service with the predecessor
employer is recognized by the Company or such Subsidiary) shall be treated as
service with Parent or any of their respective Subsidiaries; provided, however, that such
service need not be recognized to the extent that such recognition would result
in any duplication of benefits for the same period of service.
(e) Without limiting the
generality of Section 5.04(a), Parent shall waive, or cause to be waived,
any pre-existing condition limitations, exclusions, actively-at-work
requirements and waiting periods under any welfare benefit plan maintained by
Parent or any of its affiliates in which Company Employees or Union Employees
(and their eligible dependents) will be eligible to participate from and after
the Effective Time, except to the extent that such pre-existing condition
limitations, exclusions, actively-at-work requirements and waiting periods would
not have been satisfied or waived under the comparable Company Benefit Plan
immediately prior to the Effective Time. Parent shall recognize, or
cause to be recognized, the dollar amount of all co-payments, deductibles and
similar expenses incurred by each Company Employee and Union Employee (and his
or her eligible dependents) during the calendar year in which the Effective Time
occurs for purposes of satisfying such year’s deductible and co-payment
limitations under the relevant welfare benefit plans in which they will be
eligible to participate from and after the Effective Time.
(f) Without limiting the
generality of Section 5.04(a), during the Continuation Period, if Parent or the
Acquired Corporation terminates the employment of any Company Employee, Parent
shall pay, or shall cause the Acquired Corporation to pay, to such Company
Employee severance in an amount equal to the greatest of (i) the severance
benefits due under the applicable severance plan, policy or guidelines of
Parent, the Acquired Corporation or their respective affiliates then in effect
for similarly situated employees of Parent, the Acquired Corporation or their
respective affiliates, (ii) the severance benefits that would have been due
under the applicable severance plan, policy or guidelines of the Company or its
Subsidiaries that was applicable to such Company Employee immediately prior to
the Effective Time and (iii) the severance benefits due under any individual
agreement between the Company and such Company Employee. Without
limiting the generality of Section 5.04(a) or Section 5.04(d), the level of
severance benefits a terminated Company Employee is entitled to receive pursuant
to clauses (i), (ii) and (iii) of the preceding sentence shall be determined by
taking into account such employee’s service with the Company and its Subsidiary
(and any predecessor to the extent the service with the predecessor is
recognized by the Company or Subsidiary) prior to the Effective Time and such
employee’s service with Parent, the Acquired Corporation or their respective
affiliates on and after the Effective Time.
SECTION 5.05. Indemnification, Exculpation and
Insurance. (a) All rights to indemnification
and exculpation from liabilities for acts or omissions occurring at or prior to
the Effective Time and rights to advancement of expenses relating thereto now
existing in favor of any person who is or prior to the Effective Time becomes,
or has been at any time prior to the date of this Agreement, a director,
officer, employee or agent (including as a fiduciary with respect to an employee
benefit plan) of the Company, any of its Subsidiaries or any of their respective
predecessors (each, an “Indemnified Party”)
as provided in the Company Articles of Organization, the Company Bylaws, the
organizational documents of any Subsidiary of the Company or any indemnification
agreement between such Indemnified Party and the Company or any of its
Subsidiaries (in each case, as in effect on the date hereof or, with respect to
any indemnification agreement entered into after the date hereof, to the extent
the terms thereof are no more favorable in any material respect to the
Indemnified Party that is the beneficiary thereof than the terms of any
indemnification agreement included as an exhibit in the Filed SEC Documents)
shall survive the Share Exchange and shall not be amended, repealed or otherwise
modified in any manner that would adversely affect any right thereunder of any
such Indemnified Party.
(b) Without limiting
Section 5.05(a) or any rights of any Indemnified Party pursuant to any
indemnification agreement, from and after the Effective Time, in the event of
any threatened or actual claim, action, suit, proceeding or investigation (a
“Claim”),
whether civil, criminal or administrative, based in whole or in part on, or
arising in whole or in part out of, or pertaining to (i) the fact that the
Indemnified Party is or was a director (including in a capacity as a member of
any board committee), officer, employee or agent of the Company, any of its
Subsidiaries or any of their respective predecessors or (ii) this Agreement
or any of the Transactions, whether in any case asserted or arising before or
after the Effective Time, Acquired Corporation shall indemnify and hold
harmless, as and to the fullest extent permitted by Law, each such Indemnified
Party against any losses, claims, damages, liabilities, costs, expenses
(including reasonable attorney’s fees and expenses in advance of the final
disposition of any claim, suit, proceeding or investigation to each Indemnified
Party to the fullest extent permitted by Law upon receipt of any undertaking
required by applicable Law), judgments, fines and amounts paid in settlement of
or in connection with any such threatened or actual Claim. Parent
hereby guarantees and shall be jointly and severally liable for any obligation
of Acquired Corporation under this Section 5.05(b) as it were its own
obligation. None of Parent or the Acquired Corporation shall settle, compromise
or consent to the entry of any judgment in any threatened or actual Claim for
which indemnification could be sought by an Indemnified Party hereunder, unless
such settlement, compromise or consent includes an unconditional release of such
Indemnified Party from all liability arising out of such Claim or such
Indemnified Party otherwise consents in writing to such settlement, compromise
or consent. Parent and the Acquired Corporation shall cooperate with
an Indemnified Party in the defense of any matter for which such Indemnified
Party could seek indemnification hereunder. Parent’s and the Acquired
Corporation’s obligations under this Section 5.05(b) shall continue in full
force and effect for a period of six years from the Effective Time; provided, however, that all
rights to indemnification in respect of any Claim asserted or made within such
period shall continue until the final disposition of such Claim.
(c) The Company may obtain,
at or prior to the Effective Time, prepaid (or “tail”) directors’ and officers’
liability insurance policies in respect of acts or omissions occurring at or
prior to the Effective Time for six years from the Effective Time, covering each
Indemnified Party on terms with respect to such coverage and amounts no less
favorable than those of such policies in effect on the date of this Agreement;
provided, however, that,
without the prior written consent of Parent, the Company may not expend therefor
in excess of 300% of the amount (the “Annual Amount”)
payable by the Company for 12 months of coverage under its existing directors’
and officers’ liability insurance policies. In the event the Company
does not obtain such “tail” insurance policies, then, for a period of
six years from the Effective Time, Parent shall maintain in effect the
Company’s current directors’ and officers’ liability insurance policies in
respect of acts or omissions occurring at or prior to the Effective Time,
covering each Indemnified Party on terms with respect to such coverage and
amounts no less favorable than those of such policies in effect on the date of
this Agreement; provided, however, that Parent
may substitute therefor policies of a reputable and financially sound insurance
company containing terms, including with respect to coverage and amounts, no
less favorable to any Indemnified Party; provided further,
however, that
in satisfying their obligation under this Section 5.05(c), Parent shall not
be obligated to pay for coverage for any 12-month period aggregate premiums for
insurance in excess of 250% of the Annual Amount, it being understood and agreed
that Parent shall nevertheless be obligated to provide such coverage as may be
obtained for the Annual Amount.
(d) In the event that Parent
or the Acquired Corporation or any of their respective successors or assigns
(i) consolidates with or merges into any other person and is not the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers or conveys all or a substantial portion of its properties
and other assets to any person, or if Parent dissolves the Acquired Corporation,
then, and in each such case, Parent shall cause proper provision to be made so
that the applicable successors and assigns or transferees expressly assume the
obligations set forth in this Section 5.05.
(e) The provisions of this
Section 5.05 are intended to be for the benefit of, and will be enforceable
by, each Indemnified Party, his or her heirs and his or her representatives, and
are in addition to, and not in substitution for, any other rights to
indemnification or contribution that any such person may have by contract or
otherwise.
SECTION 5.06. Fees
and Expenses. (a) Except as provided in
Section 5.06(b), all fees and expenses incurred in connection with this
Agreement and the Transactions, including the Financing, shall be paid by the
party incurring such fees or expenses, whether or not the Transactions are
consummated.
(b) In the event that
(i) this Agreement is terminated by the Company pursuant to
Section 7.01(f) or (ii) (A) after the date of this Agreement, a
Takeover Proposal shall have been publicly made to the Company or shall have
been made directly to the stockholders of the Company generally or shall have
otherwise become publicly known, (B) thereafter, this Agreement is
terminated by Parent pursuant to Section 7.01(e) or by Parent or the
Company pursuant to Section 7.01(b)(i) (but only if the Stockholders’ Meeting
has not been held by the Outside Date) or Section 7.01(b)(iii) and
(C) within nine months after such termination, the Company enters into a
definitive agreement to consummate or consummates the transactions contemplated
by any Takeover Proposal, then the Company shall pay Parent the Company
Termination Fee by wire transfer of same-day funds (1) in the case of a
payment required by clause (i) above, prior to or concurrently with the
date of termination of this Agreement and (2) in the case of a payment
required by clause (ii) above, prior to or concurrently with the earlier of
the date of entry into a definitive agreement or the date of consummation
referred to in clause (ii)(C). For purposes of this Section
5.06(b), the term “Takeover Proposal” shall have the meaning assigned to such
term in Section 4.02(b), except that all references to 15% therein shall be
deemed to be references to 50%.
(c) The Company acknowledges
and agrees that the agreements contained in Section 5.06(b) are an integral
part of the transactions contemplated by this Agreement, and that, without these
agreements, Parent would not have entered into this Agreement; accordingly, if
the Company fails promptly to pay the amount due pursuant to
Section 5.06(b), and, in order to obtain such payment, Parent commence a
suit that results in a judgment against the Company for the Company Termination
Fee, the Company shall pay to Parent their costs and expenses (including
attorneys’ fees and expenses) in connection with such suit, together with
interest on the amount of the Company Termination Fee from the date such payment
was required to be made until the date of payment at the prime rate of JPMorgan
Chase Bank, N.A. in effect on the date such payment was required to be
made.
SECTION 5.07. Public
Announcements. Parent and the Company shall consult with
each other before issuing, and give each other the opportunity to review and
comment upon, any press release or other public statements or filing with
respect to the Transactions and shall not issue any such press release or make
any such public statement or other disclosure prior to such consultation and,
with respect to any press release or public statement by the Company with
respect to the Financing, only after consent by Parent, except as may be
required by applicable Law, court process or the rules and regulations of any
national securities exchange or national securities quotation system and except
to the extent permitted under Section 4.02. The parties agree
that the initial press release to be issued with respect to the Transactions
shall be in the form heretofore agreed to by the parties.
SECTION 5.08. Stockholder Litigation. The Company
shall give Parent the opportunity to participate in the defense or settlement of
any stockholder litigation against the Company and/or its directors relating to
the transactions contemplated by this Agreement, and no such settlement shall be
agreed to without Parent’s prior written consent (such consent not to be
unreasonably withheld or delayed).
SECTION 5.09. Financing. (a) Parent and Sub
shall use, and shall cause their controlled Affiliates to use, their reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause to
be done, all things necessary, proper or advisable, and to execute and deliver,
or cause to be executed and delivered, such instruments and documents as may be
required, to arrange the Financing as promptly as reasonably practicable on the
terms and subject only to the conditions contained in the Credit
Agreement. For the avoidance of doubt and notwithstanding anything to
the contrary, each of Parent and Sub acknowledge and agree that its obligation
to consummate the Transactions on the terms and subject to the conditions set
forth herein is not conditioned upon the availability or consummation of the
Financing, the availability of any replacement financing or receipt of the
proceeds therefrom. Parent and Sub shall use, and cause their
controlled Affiliates to use, their reasonable best efforts (i) to enforce their
rights under the Credit Agreement and (ii) to avoid any event or circumstance
that impedes or delays Closing, including, in the event that all conditions to
the Credit Agreement have been satisfied (or upon funding will be satisfied), to
cause the lenders thereunder to fund on the Closing Date the Financing required
to consummate the Transactions. If any portion of the Financing
becomes unavailable or Parent becomes aware of any event or circumstance that
makes any portion of the Financing unavailable, in each case, on the terms and
conditions set forth in the Credit Agreement, and such portion is required to
consummate the Transactions, Parent shall, as promptly as practicable, use its
reasonable best efforts to arrange and obtain alternative financing from
alternative financial institutions in an amount sufficient to consummate the
Transactions. Parent shall give the Company prompt written notice of
any material breach by any party to the Credit Agreement or any condition to the
Financing becoming unable to be satisfied, in each case, of which Parent becomes
aware, or of any termination of the Credit Agreement. Parent shall keep the
Company informed on a reasonably current basis of the status of the
Financing.
(b) The Company shall
provide, shall cause its Subsidiaries to provide and shall request that its and
its Subsidiaries’ Representatives provide, such cooperation in connection with
the arrangement of the Financing or any alternative financing to finance in
whole or in part the Transaction (including the issue or registered offering of
any debt securities) as may be reasonably requested by Parent; provided that none of
the Company or any of its Subsidiaries shall be required to pay any fee or enter
into any definitive agreement or incur any other liability in connection with
the Financing prior to the Effective Time; and provided further that such
requested cooperation does not unreasonably interfere with the ongoing
operations of the Company and its Subsidiaries. Parent shall,
promptly upon request by the Company, reimburse the Company for all reasonable
out-of-pocket costs incurred by the Company, its Subsidiaries or any of their
respective Representatives in connection with such
cooperation. Parent shall indemnify and hold harmless the Company,
its Subsidiaries and their respective Representatives from and against any and
all losses or damages suffered or incurred by them in connection with the
arrangement of the Financing and any information utilized in connection
therewith. The Company hereby consents to the use of its and its
Subsidiaries’ logos in connection with the Financing; provided that such logos
are used solely in a manner that is not intended to nor reasonably likely to
harm or disparage the Company or any of it Subsidiaries or the reputation or
goodwill of the Company or any of its Subsidiaries and its or their
marks.
SECTION 5.10. Stock Exchange
Delisting. Prior to the Closing Date, the Company shall
cooperate with Parent and use reasonable best efforts to take, or cause to be
taken, all actions, and do or cause to be done all things, reasonably necessary,
proper or advisable on its part under applicable Laws and rules and policies of
the New York Stock Exchange to enable the delisting by the Company of the Shares
from the New York Stock Exchange and the deregistration of the Shares under the
Exchange Act as promptly as practicable after the Effective Time.
SECTION 5.11. Section 16
Matters. Prior to the Effective Time, the Company will
take all such steps as may be required to cause to be exempt under Rule 16b-3
under the Exchange Act any disposition of Company Common Stock (including
derivative securities with respect to Company Common Stock) that is treated as a
disposition under such rule and results from the Transactions by each director
or officer of the Company who is subject to the reporting requirements of
Section 16(a) of the Exchange Act with respect to the Company.
Conditions
Precedent
SECTION 6.01. Conditions to Each Party’s Obligation to Effect the Share
Exchange. The respective obligation of each party to
effect the Share Exchange is subject to the satisfaction or (to the extent
permitted by Law) waiver at or prior to the Effective Time of the following
conditions:
(a) Stockholder
Approval. The Stockholder Approval shall have been
obtained.
(b) Regulatory
Approvals. (i) The waiting period applicable to the
consummation of the Transactions under the HSR Act (or any extension thereof)
shall have expired or early termination thereof shall have been granted and (ii)
if any Merger Control Law is applicable to the Transactions, then the applicable
Governmental Entity shall have given all necessary approvals or consents, except
for those approvals or consents the failure of which to obtain would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business or results of operations of (i) the Company and
its Subsidiaries taken as a whole or (ii) Parent and its Subsidiaries taken as a
whole.
(c) No Injunctions or
Restraints. No temporary restraining order, preliminary or
permanent injunction or other judgment or order issued by any Governmental
Entity (collectively, “Restraints”) shall be
in effect enjoining or otherwise prohibiting the consummation of the
Transactions.
SECTION 6.02. Conditions to Obligations of Parent and
Sub. The obligations of Parent and Sub to effect the Share
Exchange are further subject to the satisfaction or (to the extent permitted by
Law) waiver at or prior to the Effective Time of the following
conditions:
(a) Representations and
Warranties. The representations and warranties of the Company
set forth in Section 3.01(c) (Capital Structure), in the first three sentences
of Section 3.01(d) (Authority; Noncontravention) and in Section 3.01(s) (State
Takeover Statutes), shall be true and correct in all material
respects. The representation and warranty set forth in the last
sentence of Section 3.01(d) shall be true and correct in all
respects. All other representations and warranties of the Company set
forth in Section 3.01 of this Agreement shall be true and correct (disregarding
all qualifications or limitations as to “materiality”, “Material Adverse Effect”
and words of similar import set forth therein) as of the date of this Agreement
and as of the Closing Date as though made on the Closing Date (except to the
extent such representations and warranties expressly relate to an earlier date,
in which case as of such earlier date), except where the failure of such
representations and warranties to be so true and correct would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Parent shall have received a certificate signed on behalf of
the Company by an executive officer thereof to such effects.
(b) Performance of Obligations
of the Company. The Company shall have, in all material
respects, performed or complied with all material obligations required to be
performed or complied with by it under this Agreement by the time of the
Closing, and Parent shall have received a certificate signed on behalf of the
Company by an executive officer thereof to such effect.
SECTION 6.03. Conditions to Obligation of the
Company. The obligation of the Company to effect the Share
Exchange is further subject to the satisfaction or (to the extent permitted by
Law) waiver at or prior to the Effective Time of the following
conditions:
(a) Representations and
Warranties. The representations and warranties of Parent and
Sub set forth in the first three sentences of Section 3.02(b) (Authority;
Noncontravention) shall be true and correct in all material respects. All other
representations and warranties of Parent and Sub set forth in Section 3.02 of
this Agreement shall be true and correct (disregarding all qualifications or
limitations as to “materiality”, “Parent Material Adverse Effect” and words of
similar import set forth therein) as of the date of this Agreement and as of the
Closing Date as though made on the Closing Date (except to the extent such
representations and warranties expressly relate to an earlier date, in which
case as of such earlier date), except where the failure of such representations
and warranties to be so true and correct would not, individually or in the
aggregate, reasonably be expected to have a Parent Material Adverse
Effect. The Company shall have received a certificate signed on
behalf of Parent by an executive officer thereof to such effects.
(b) Performance of Obligations
of Parent and Sub. Parent and Sub shall have, in all material
respects, performed or complied with all material obligations required to be
performed or complied with by it under this Agreement by the time of the
Closing, and the Company shall have received a certificate signed on behalf of
Parent by an executive officer thereof to such effect.
SECTION 6.04. Frustration of Closing
Conditions. Neither Parent nor Sub may rely on the failure
of any condition set forth in Section 6.01 or 6.02 to be satisfied if such
failure was caused by the failure of Parent and/or Sub to perform any of its
obligations under this Agreement, to act in good faith or to use its reasonable
best efforts to consummate the Transactions and the Financing, as required by
and subject to Sections 5.03 and 5.09. The Company may not rely
on the failure of any condition set forth in Section 6.01 or 6.03 to be
satisfied if such failure was caused by its failure to perform any of its
obligations under this Agreement, to act in good faith or to use its reasonable
best efforts to consummate the Transactions, as required by and subject to
Section 5.03.
Termination,
Amendment and Waiver
SECTION 7.01. Termination. This Agreement may be
terminated at any time prior to the Effective Time, whether before or after
receipt of the Stockholder Approval:
(a) by mutual written
consent of Parent and the Company;
(b) by either of Parent or
the Company:
(i) if the Share Exchange shall not
have been consummated on or before October 31, 2010 (the “Outside Date”); provided, however, that if on
the Outside Date the condition to Closing set forth in Section 6.01(b) shall not
have been satisfied but all other conditions to Closing shall be satisfied or
shall be capable of being satisfied, then the Outside Date shall be extended to
November 30, 2010 if the Company or Parent notifies the other on or prior to
October 31, 2010 of its election to extend the Outside Date to November 30,
2010; provided,
however, that
the right to terminate this Agreement under this Section 7.01(b)(i) shall
not be available to any party if the failure of such party to perform any of its
obligations under this Agreement, the failure to act in good faith or the
failure to use its reasonable best efforts to consummate the Transactions,
including to the extent required by and subject to Sections 5.03 and 5.09,
has been a principal cause of or resulted in the failure of the Share Exchange
to be consummated on or before such date (it being understood that Parent and
Sub shall be deemed a single party for purposes of the foregoing
proviso);
(ii) if any Restraint having any of the
effects set forth in Section 6.01(c) shall have become final and
nonappealable; provided that the
party seeking to terminate this Agreement pursuant to this
Section 7.01(b)(ii) shall have used its reasonable best efforts to prevent
the entry of and to remove such Restraint; or
(iii) if the Stockholder Approval shall
not have been obtained at the Stockholders’ Meeting duly convened therefor or at
any adjournment or postponement thereof;
(c) by Parent, if the
Company shall have breached any of its representations or warranties, or failed
to perform any of its covenants or agreements set forth in this Agreement, which
breach or failure to perform (i) would give rise to the failure of a
condition set forth in Section 6.02(a) or 6.02(b) and (ii) is
incapable of being cured prior to the Outside Date or, if curable by such date,
is not cured within the earlier of (A) thirty (30) days after written notice
thereof is given by Parent to the Company and (B) the Outside Date;
provided that
Parent shall not have the right to terminate this Agreement pursuant to this
Section 7.01(c) if either Parent or Sub is then in material breach of any
of its representations, warranties, covenants or agreements
hereunder;
(d) by the Company, if
Parent or Sub shall have breached any of its representations or warranties, or
failed to perform any of its covenants or agreements set forth in this
Agreement, which breach or failure to perform (i) would give rise to the
failure of a condition set forth in Section 6.03(a) or 6.03(b) and
(ii) is incapable of being cured prior to the Outside Date or, if curable
by such date, is not cured within the earlier of (A) thirty (30) days after
written notice thereof is given by the Company to Parent and (B) the Outside
Date; provided
that the Company shall not have the right to terminate this Agreement pursuant
to this Section 7.01(d) if the Company is then in material breach of any of
its representations, warranties, covenants or agreements hereunder;
(e) by Parent, in the event
that (i) an Adverse Recommendation Change shall have occurred or (ii) the
Company’s Board of Directors shall have failed to reaffirm its recommendation of
this Agreement and the Share Exchange within ten (10) business days after
receipt of any written request to do so from Parent (which request may only be
made following public disclosure of a Takeover Proposal); or
(f) by the Company, in
accordance with Section 4.02(e).
SECTION 7.02. Effect
of Termination. In the event of termination of this
Agreement as provided in Section 7.01, this Agreement shall forthwith
become void and have no effect, without any liability or obligation on the part
of Parent, Sub or the Company, other than the provisions of the last sentence of
Section 5.02, Section 5.06, this Section 7.02 and
Article VIII, which provisions shall survive such termination; provided, however, that nothing
herein shall relieve the Company, Parent or Sub from liability for any willful
and material breach of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
SECTION 7.03. Amendment. This Agreement may be amended
by the parties hereto at any time before or after receipt of the Stockholder
Approval; provided, however, that after
such approval has been obtained, there shall be made no amendment that by Law
requires further approval by the stockholders of the Company without such
approval having been obtained. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
SECTION 7.04. Extension; Waiver. The conditions to
each of the parties’ obligations to consummate the Share Exchange are for the
sole benefit of such party and may be waived by such party in whole or in part
to the extent permitted by applicable Laws. At any time prior to the Effective
Time, (a) the parties may mutually extend the time for the performance of
any of the obligations or other acts of the other parties, (b) to the
extent permitted by Law, any inaccuracies in any representations and warranties
contained herein or in any document delivered pursuant hereto may be waived by
the party benefiting from such representation or warranty or (c) subject to
the proviso to the first sentence of Section 7.03 and to the extent
permitted by Law, compliance with any of the agreements or conditions contained
herein may be waived by the party benefiting from such
compliance. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
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.
General
Provisions
SECTION 8.01. Nonsurvival of Representations and
Warranties. None of the representations and warranties in
this Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Effective Time. This Section 8.01 shall not limit
any covenant or agreement of the parties which by its terms contemplates
performance after the Effective Time.
SECTION 8.02. Notices. Except for notices that are
specifically required by the terms of this Agreement to be delivered orally, all
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, faxed (with
confirmation) or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
if to Parent or Sub, to:
Merck
XXxX
Xxxxxxxxxxx Xxxxxxx 000
00000 Xxxxxxxxx
Xxxxxxx
Fax no.: +49 - 615 - 00-00 00 00
Attention: Xxxxxxxx Xxxx
Xxxxxxxxxxx Xxxxxxx 000
00000 Xxxxxxxxx
Xxxxxxx
Fax no.: +49 - 615 - 00-00 00 00
Attention: Xxxxxxxx Xxxx
with a
copy to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000)000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000)000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
if to the Company, to:
Millipore
Corporation
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: General Counsel
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: General Counsel
with a
copy to:
Cravath,
Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, III, Esq.
Xxxxxx X. Xxxxxx, Esq.
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, III, Esq.
Xxxxxx X. Xxxxxx, Esq.
and a
copy to:
Ropes
& Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
SECTION 8.03. Definitions. For purposes of this
Agreement:
(a) an “Affiliate” of any
person means another person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such first person;
(b) “business day” means
any day other than a day on which banks are required or authorized to be closed
in the City of New York, NY, U.S.A., Frankfurt am Main, Germany, or Luxembourg,
Luxembourg, or the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) payment system (as launched on 19 November 2007) is not open
for the settlement of payments in Euro;
(c) “Company Disclosure
Letter” means the letter dated as of the date of this Agreement delivered
by the Company to Parent and Sub;
(d) “Company Termination
Fee” means $230.0 million;
(e) “Knowledge” means
(i) with respect to the Company, the actual knowledge of any of the persons
set forth in Section 8.03(e) of the Company Disclosure Letter and
(ii) with respect to Parent or Sub, the actual knowledge of any member of
the Executive Board of Parent or any of the officers of Sub;
(f) “Material Adverse
Effect” means any change, effect, event, occurrence or state of facts
that is materially adverse to the business, financial condition, results of
operations, properties, assets or liabilities of the Company and its
Subsidiaries, taken as a whole, other than any change, effect, event, occurrence
or state of facts relating to (i) the economy in general, (ii) the
economic, business, financial, technological or regulatory environment generally
affecting the industries in which the Company operates, including the effects of
the current economic environment, (iii) changes in Law or applicable accounting
regulations or principles or interpretations thereof, (iv) any change in
the Company’s stock price or trading volume or any failure, in and of itself, by
the Company to meet published revenue or earnings projections (it being
understood that the underlying causes of such failure shall not be excluded by
this clause (iv)), (v) an act of terrorism or an outbreak or escalation of
hostilities or war (whether or not declared) or any natural disasters or any
national or international calamity or crisis, (vi) the announcement or
pendency of this Agreement or the Transactions or the consummation of the
Transactions or (vii) actions (or omissions) of the Company and its Subsidiaries
taken (or not taken) with the consent of Parent; provided, however, that
changes, effects, events, occurrences and facts referred to in clauses (i),
(ii), (iii) and (v) above shall be considered for purposes of determining
whether there has been or would reasonably be expected to be a Material Adverse
Effect if and to the extent such change, effect, event, occurrence or fact has
had or would reasonably be expected to have a disproportionate adverse effect on
the Company and its Subsidiaries, as compared to other companies operating the
industries in which the Company and its Subsidiaries operate;
(g) “Parent Material Adverse
Effect” means any change, effect, event, occurrence or state of facts
that prevents or materially impedes, interferes with, hinders or delays the
consummation by Parent or Sub of the Share Exchange or any of the other
Transactions;
(h) “Permitted Liens” mean
(i) mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s or other like
Liens arising or incurred in the ordinary course of business, (ii) Liens for
taxes, assessments and other governmental charges and levies that are not due
and payable for which appropriate reserves have been established or which are
being contested in good faith by appropriate proceedings, (iii) Liens affecting
the interest of the grantor of any easements benefiting real property owned by
the Company or any of its Subsidiaries, (iv) Liens (other than liens securing
indebtedness for borrowed money), defects or irregularities in title, easements,
rights-of-way, covenants, restrictions, and other, similar matters that would
not, individually or in the aggregate, reasonably be expected to materially
impair the continued use and operation of the assets to which they relate in the
business of the Company and its Subsidiaries and (v) zoning, building and
other similar codes and regulations.
(i) “person” means,
corporation, partnership, limited liability company, joint venture, association,
trust, unincorporated organization or other entity (each, a “Legal Entity”) or a
natural person;
(j) “Representative”
means, with respect to any person, the directors, officers, employees,
investment bankers, financial advisors, attorneys, accountants or other
advisors, agents or representatives of such person;
(k) a “Subsidiary” of any
person means another person, an amount of the voting securities, other voting
rights or voting partnership interests of which is sufficient to elect at least
a majority of its board of directors or other governing body (or, if there are
no such voting interests, more than 50% of the equity interests of which) is
owned directly or indirectly by such first person; and
(l) “Transactions” means
the transactions contemplated by this Agreement, including the Share Exchange
but not the Financing.
SECTION 8.04. Interpretation. When a reference is made
in this Agreement to an Article, a Section or Exhibit, such reference shall be
to an Article or a Section of, or an Exhibit to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. 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 words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The word “or” when used in this
Agreement is not exclusive. All terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument
or statute defined or referred to herein or in any agreement or instrument that
is referred to herein (except with respect to any agreement or instrument
disclosed in the Company Disclosure Letter and the Filed SEC
Documents) means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to
its permitted successors and assigns.
SECTION 8.05. Consents and Approvals. For any matter
under this Agreement requiring the consent or approval of any party to be valid
and binding on the parties hereto, such consent or approval must be in
writing.
SECTION 8.06. Counterparts. This Agreement may be
executed in one or more counterparts (including by facsimile), all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties.
SECTION 8.07. Entire
Agreement; Third-Party Beneficiaries. This Agreement and
the Confidentiality Agreement (a) constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this Agreement and the
Confidentiality Agreement; provided that the
Confidentiality Agreement shall survive the execution and delivery of this
Agreement, and (b) except for the provisions of Article II and
Section 5.05, are not intended to confer upon any person other than the
parties any legal or equitable rights or remedies.
SECTION 8.08. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE
GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 8.09. Assignment. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties, and any assignment without such
consent shall be null and void. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by, the parties and their respective successors and assigns.
SECTION 8.10. Specific Enforcement; Consent to
Jurisdiction. The parties agree that irreparable damage
would occur and that the parties would not have any adequate remedy at law 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, including any obligation to
consummate the Share Exchange on the terms and subject to the conditions of this
Agreement, in any court of the Commonwealth of Massachusetts or any Federal
court sitting in the Commonwealth of Massachusetts, this being in addition to
any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of the courts of the Commonwealth of Massachusetts and any
Federal court sitting in the Commonwealth of Massachusetts in the event any
dispute arises out of this Agreement or the transactions contemplated by this
Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not bring any action relating to this Agreement
or the transactions contemplated by this Agreement in any court other than the
courts of the Commonwealth of Massachusetts or any Federal court sitting in the
Commonwealth of Massachusetts.
SECTION 8.11. Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of being enforced
by any rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible to the fullest extent permitted by applicable Law in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
IN
WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
| MERCK KGaA, | |||
|
|
by
|
/s/ Dr. Xxxxxxx Xxxxxx | |
| Name: Dr. Xxxxxxx Xxxxxx | |||
| Title: Member of the Executive Board | |||
|
|
by
|
/s/ Xxx Xxxxxxxxx-Xxxx | |
| Name: Xxx Xxxxxxxxx-Xxxx | |||
| Title: Authorized Signatory | |||
| CONCORD INVESTMENTS CORP., | |||
|
|
by
|
/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: Officer | |||
| MILLIPORE CORPORATION | |||
|
|
by
|
/s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | |||
| Title: President & CEO Millipore | |||
ANNEX
I
|
Term
|
|
|
Acquired
Corporation
|
Section
1.01
|
|
Acquired
Corporation Incentive Plans
|
Section
5.04(c)
|
|
Acquired
Corporation Plans
|
Section
5.04(a)
|
|
Acquisition
Agreement
|
Section
4.02(e)
|
|
Action
|
Section
3.01(i)
|
|
Adverse
Recommendation Change
|
Section
4.02(e)
|
|
Affiliate
|
Section
8.03(a)
|
|
Agreement
|
Preamble
|
|
Annual
Amount
|
Section 5.05(c)
|
|
Appraisal
Shares
|
Section 2.01(c)
|
|
Articles
of Share Exchange
|
Section 1.03
|
|
Authorizations
|
Section
3.01(k)
|
|
Bidder
|
Section 4.02(a)
|
|
Burdensome
Condition
|
Section 5.03(b)
|
|
business
day
|
Section 8.03(b)
|
|
Certificate
|
Section
2.01(b)
|
|
Claim
|
Section
5.05(b)
|
|
Closing
|
Section
1.02
|
|
Closing
Date
|
Section
1.02
|
|
Code
|
Section
2.02(h)
|
|
Company
|
Preamble
|
|
Company
Articles of Organization
|
Section
1.05(a)
|
|
Company
Benefit Agreement
|
Section
3.01(m)(ix)
|
|
Company
Benefit Plan
|
Section
3.01(m)(ix)
|
|
Company
Bylaws
|
Section
1.05(b)
|
|
Company
Common Stock
|
Recitals
|
|
Company
Disclosure Letter
|
Section
8.03(c)
|
|
Company
Employee
|
Section 5.04(a)
|
|
Company
Equity Awards
|
Section
3.01(c)
|
|
Company
Foreign Benefit Plan
|
Section
3.01(m)(i)
|
|
Company
401 (k) Plan
|
Section
3.01(c)
|
|
Company
Labor Agreements
|
Section
3.01(l)
|
|
Company
Pension Plan
|
Section
3.01(m)(i)
|
|
Company
Performance RSU Awards
|
Section
3.01(c)
|
|
Company
RSU Awards
|
Section
3.01(c)
|
|
Company
Stock Equivalents
|
Section
3.01(c)
|
|
Company
Stock Options
|
Section
3.01(c)
|
|
Company
Stock Plan
|
Section
3.01(c)
|
|
Company
Termination Fee
|
Section
8.03(d)
|
|
Confidentiality
Agreement
|
Section
5.02
|
|
Continuation
Period
|
Section
5.04(a)
|
|
Contract
|
Section
3.01(d)
|
ANNEX I
Term
|
Convertible
Notes
|
Section
3.01(c)
|
|
Credit
Agreement
|
Section
3.02(d)
|
|
Director
Deferral Agreements
|
Section
3.01(c)
|
|
Director
Stock Equivalent Amounts
|
Section
2.03(b)
|
|
Director
Stock Equivalents
|
Section
2.03(b)
|
|
Dissenting
Shareholders
|
Section
2.01(c)
|
|
Effective
Time
|
Section
1.03
|
|
Environmental
Claims
|
Section
3.01(p)(ii)
|
|
Environmental
Law
|
Section
3.01(p)(ii)
|
|
ERISA
|
Section
3.01(m)(i)
|
|
ERISA
Affiliate
|
Section
3.01(m)(vi)
|
|
Equity
Award Amount
|
Section
2.03(a)
|
|
Equity
Award Amounts
|
Section
2.03(a)
|
|
Exchange
Act
|
Section
3.01(d)
|
|
Exchange
Fund
|
Section
2.02(a)
|
|
Executive
Performance RSU Amount
|
Section
2.03(a)(iii)
|
|
Executive
Vested Performance RSU Shares
|
Section
2.03(a)(iii)
|
|
Filed
SEC Documents
|
Section
3.01
|
|
Financing
|
Section 3.02(d)
|
|
GAAP
|
Section
3.01(e)
|
|
Governmental
Antitrust Authority
|
Section
5.03(c)
|
|
Governmental
Entity
|
Section
3.01(d)
|
|
Hazardous
Materials
|
Section
3.01(p)(ii)
|
|
HSR
Act
|
Section
3.01(d)
|
|
Indebtedness
|
Section
4.01(a)(ix)
|
|
Indemnified
Party
|
Section
5.05(a)
|
|
Intellectual
Property
|
Section
3.01(o)(iv)
|
|
Irish
Share Scheme
|
Section
2.03(b)
|
|
Judgment
|
Section
3.01(d)
|
|
Knowledge
|
Section
8.03(e)
|
|
Law
|
Section
3.01(d)
|
|
Legal
Entity
|
Section
8.03(i)
|
|
Liens
|
Section
3.01(b)
|
|
Material
Adverse Effect
|
Section
8.03(f)
|
|
Material
Intellectual Property
|
Section
3.01(h)(vii)
|
|
MBCA
|
Recitals
|
|
Merger
Control Laws
|
Section 3.01(d)
|
|
Non-Executive
Performance RSU Amount
|
Section
2.03(a)(ii)
|
|
Non-Executive
Vested Performance RSU Shares
|
Section
2.03(a)(ii)
|
|
Notice
of Adverse Recommendation
|
Section
4.02(e)
|
|
Notice
of Superior Proposal
|
Section
4.02(e)
|
|
Notice
Period
|
Section
4.02(e)
|
|
Option
Amount
|
Section
2.03(a)(i)
|
|
Outside
Date
|
Section
7.01(b)(i)
|
ANNEX I
Term
|
Parent
|
Preamble
|
|
Parent
Material Adverse Effect
|
Section
8.03(g)
|
|
Paying
Agency Agreement
|
Section 2.02(a)
|
|
Paying
Agent
|
Section 2.02(a)
|
|
PBGC
|
Section
3.01(m)(vi)
|
|
Permitted
Liens
|
Section
8.03(h)
|
|
person
|
Section
8.03(i)
|
|
Proxy
Statement
|
Section
3.01(d)
|
|
Release
|
Section
3.01(p)(ii)
|
|
Representative
|
Section
8.03(j)
|
|
Restraints
|
Section
6.01(c)
|
|
RSU
Amount
|
Section
2.03(a)(ii)
|
|
SEC
|
Section
3.01
|
|
SEC
Documents
|
Section
3.01(e)
|
|
Securities
Act
|
Section
3.01(e)
|
|
Share
Exchange
|
Recitals
|
|
Share
Exchange Consideration
|
Section
2.01(b)
|
|
Specified
Contract
|
Section
3.01(j)
|
|
Specified
Deferred Compensation Plans
|
Section
3.01(c)
|
|
Stock
Equivalent Amount
|
Section
2.03(b)
|
|
Stockholder
Approval
|
Section
3.01(r)
|
|
Stockholders’
Meeting
|
Section
5.01(b)
|
|
Sub
|
Preamble
|
|
Subsidiary
|
Section
8.03(k)
|
|
Superior
Proposal
|
Section
4.02(c)
|
|
Supplemental
Plan
|
Section
3.01(c)
|
|
Supplemental
Plan Stock Equivalent Amounts
|
Section
2.03(b)
|
|
Supplemental
Plan Stock Equivalents
|
Section
2.03(b)
|
|
Takeover
Proposal
|
Section
4.02(c)
|
|
tax
return
|
Section
3.01(n)(viii)
|
|
taxes
|
Section
3.01(n)(viii)
|
|
Technology
|
Section
3.01(o)(v)
|
|
Title
IV Plan
|
Section
3.01(m)(vi)
|
|
Transactions
|
Section
8.03(l)
|
|
Union
Employee
|
Section
5.04(a)
|
|
Vested
Executive Performance RSU Shares
|
Section
2.03(a)(iii)
|
|
Vested
Non-Executive Performance RSU Shares
|
Section
2.03(a)(ii)
|
|
Voting
Company Debt
|
Section
3.01(c)
|
