EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
USA INTERACTIVE,
EQUINOX MERGER CORP.
AND
EXPEDIA, inc.
DATED AS OF MARCH 18, 2003
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TABLE OF CONTENTS
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ARTICLE I CERTAIN DEFINITIONS.......................................1
ARTICLE II THE MERGER................................................6
2.1 The Merger................................................6
2.2 Effective Time of the Merger..............................6
2.3 Effects of the Merger.....................................6
2.4 Closing...................................................6
2.5 Articles of Incorporation.................................6
2.6 By-Laws...................................................6
2.7 Directors and Officers....................................6
ARTICLE III CONVERSION OF SECURITIES..................................7
3.1. Effect of Merger on Capital Stock.........................7
3.2. Exchange of Certificates..................................8
3.3 Company Stock Options and Other Equity-Based Awards......11
3.4 Company Warrants.........................................13
3.5. Termination of Company ESPP..............................13
3.5. Further Assurances.......................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES...........................14
4.1 Representations and Warranties of the Company............14
4.2 Representations and Warranties of Parent.................21
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS................25
5.1. Information and Access...................................25
5.2. Conduct of Business of the Company.......................26
5.3. Conduct of Business of Parent............................28
5.4. Preparation of Form S-4 Proxy and Information
Statement/Prospectus; Other Filings...................28
5.5. Company Stockholder Approval.............................29
5.6. Agreements to Take Reasonable Action.....................30
5.7. Consents.................................................31
5.8. Nasdaq Quotation.........................................31
5.9. Affiliates...............................................31
5.10. Indemnification..........................................31
5.11. Notification of Certain Matters..........................32
5.12. Employee Arrangements....................................33
5.13. Reorganization...........................................33
5.14. Public Announcements.....................................33
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5.15. Stockholder Litigation...................................33
5.16. Section 16b-3............................................33
ARTICLE VI CONDITIONS PRECEDENT.....................................33
6.1. Conditions to Each Party's Obligation to Effect
the Merger............................................33
6.2. Conditions of Obligations of Parent and
Merger Sub............................................34
6.3. Conditions of Obligations of the Company.................35
ARTICLE VII TERMINATION..............................................36
7.1. Termination..............................................36
7.2. Effect of Termination....................................36
7.3. Fees and Expenses........................................36
ARTICLE VIII GENERAL PROVISIONS.......................................37
8.1. Amendment................................................37
8.2. Extension; Waiver........................................37
8.3. Nonsurvival of Representations, Warranties
and Agreements........................................37
8.4. Entire Agreement.........................................37
8.5. Severability.............................................37
8.6. Notices..................................................38
8.7. Headings; Interpretation.................................39
8.8. Counterparts.............................................39
8.9. Benefits; Assignment.....................................39
8.10. Governing Law............................................39
8.11. Special Committee........................................39
LIST OF EXHIBITS
Exhibit A Form of Certificate of Incorporation of Surviving Corporation
Exhibit B Form of Affiliate Agreement
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AGREEMENT AND PLAN OF MERGER, dated as of March 18, 2003 (this
"Agreement"), by and among USA INTERACTIVE, a Delaware corporation ("Parent"),
EQUINOX MERGER CORP., a Washington corporation and direct wholly owned
subsidiary of Parent ("Merger Sub"), and EXPEDIA, INC., a Washington corporation
(the "Company").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Parent, Merger Sub, and
the Company deem it advisable and in the best interests of their respective
corporations and stockholders that Parent and the Company enter into a business
combination pursuant to which Parent would acquire the issued and outstanding
shares of the Company that it does not already own;
WHEREAS, to effect such business combination, upon the terms
and subject to the conditions set forth herein, Merger Sub will merge with and
into the Company with the Company continuing as the surviving corporation (the
"Merger");
WHEREAS, upon consummation of the Merger, the Company will
become a wholly owned subsidiary of Parent; and
WHEREAS, for U.S. federal income tax purposes, it is intended
that the Merger and the transactions contemplated thereby shall qualify as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code")
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth in
this Agreement, and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"affiliate" of a specified person means a person who, directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such specified person; provided that, for
purposes of this Agreement, the Company and its subsidiaries shall not be deemed
to be affiliates of Parent and its subsidiaries, and Parent and its subsidiaries
shall not be deemed to be affiliates of the Company and its subsidiaries.
"Agreement" shall have the meaning set forth in the preamble.
"Approved Matter" shall have the meaning set forth in Section
4.1(a).
"Articles of Merger" shall have the meaning set forth in
Section 2.2.
"Business Day" means any day on which banks are not required
or authorized to close in the City of New York or Seattle, Washington.
"Certificate" shall have the meaning set forth in Section
3.2(b).
"Change in the Company Recommendation" shall have the meaning
set forth in Section 5.5(a).
"Closing" shall have the meaning set forth in Section 2.4.
"Closing Date" shall have the meaning set forth in
Section 2.4.
"Code" shall have the meaning set forth in the recitals.
"Common Shares Trust" shall have the meaning set forth in
Section 3.2(e)(iii).
"Company" shall have the meaning set forth in the preamble.
"Company Banker" shall have the meaning set forth in Section
4.1(h).
"Company Benefit Plan" shall have the meaning set forth in
Section 4.1(j)(i).
"Company Capital Stock" means Company Common Stock, Company
Class B Common Stock and Company Preferred Stock.
"Company Class B Common Stock" means Class B common stock, par
value $0.01 per share, of the Company.
"Company Common Stock" means common stock, par value $0.01 per
share, of the Company.
"Company Compensatory Warrant" shall have the meaning set
forth in Section 3.4(a).
"Company Disclosure Letter" shall have the meaning set forth
in Section 4.1(b).
"Company Material Adverse Effect" shall have the meaning set
forth in Section 4.1(a).
"Company Optionholder Warrant Agreement" means the
Optionholder Equity Warrant Agreement, dated as of January 25, 2002, between the
Company and Mellon Investor Services LLC, as Equity Warrant Agent.
"Company Preferred Stock" means preferred stock, par value
$0.01 per share, of the Company.
"Company Recommendation" shall have the meaning set forth in
Section 5.5(a).
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"Company SEC Reports" shall have the meaning set forth in
Section 4.1(f)(i).
"Company Stock" shall mean the Company Common Stock and the
Company Class B Common Stock.
"Company Stock-Based Award" shall have the meaning set forth
in Section 3.3(b).
"Company Stock Option" shall have the meaning set forth in
Section 3.3(a).
"Company Stock Plans" shall have the meaning set forth in
Section 3.3(a).
"Company Stockholder Approval" shall have the meaning set
forth in Section 4.1(c)(i).
"Company Stockholders Meeting" shall have the meaning set
forth in Section 5.5(a).
"Company Warrant" shall have the meaning set forth in Section
3.4(b).
"Company Warrant Agreement" means the Equity Warrant
Agreement, dated as of February 4, 2002, between the Company and Mellon Investor
Services LLC, as Equity Warrant Agent.
"Covered Persons" shall have the meaning set forth in Section
5.10(c).
"Current Offering Period" shall have the meaning set forth in
Section 3.5(b).
"D&O Insurance" shall have the meaning set forth in Section
5.10(c).
"Dissenting Shares" shall have the meaning set forth in
Section 3.2(f).
"Effective Time" shall have the meaning set forth in Section
2.2.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder.
"ESPP" shall mean the Company's 1999 Amended and Restated
Employee Stock Purchase Plan.
"ESPP Option" shall have the meaning set forth in Section
3.5(b).
"Excess Shares" shall have the meaning set forth in Section
3.2(e)(ii).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
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"Exchange Agent" shall have the meaning set forth in Section
3.2(a).
"Exchange Fund" shall have the meaning set forth in Section
3.2(a).
"Exchange Ratio" shall mean 1.93875.
"Form S-4" shall have the meaning set forth in Section 4.1(g).
"GAAP" means U.S. generally accepted accounting principles.
"Governmental Entity" means any supranational, national,
state, municipal or local government, foreign or domestic, any instrumentality,
subdivision, court, administrative agency or commission or other authority
thereof, or any quasi-governmental body exercising any regulatory, taxing,
importing or other governmental or quasi-governmental authority.
"knowledge" or "known" means, with respect to the Company, the
knowledge of Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxx X.
Xxxxxxx, and, with respect to Parent, the knowledge of Xxxxx Xxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxx Xxxxxxxxxxx and Xxxx Xxxxxxxxxxxx, in each case, after
reasonable inquiry.
"Merger Consideration" shall have the meaning set forth in
Section 3.1(c).
"Merger Sub" shall have the meaning set forth in the preamble.
"Merger Sub Common Stock" means the common stock, par value
$0.01 per share, of Merger Sub.
"Merger" shall have the meaning set forth in the recitals.
"Multiemployer Plan" shall have the meaning set forth in
Section 4.1(j)(i).
"NASD" shall have the meaning set forth in Section
3.2(e)(iii).
"Nasdaq" means The Nasdaq National Market.
"Other Filings" shall have the meaning set forth in Section
5.4.
"other party" means, with respect to Parent or Merger Sub, the
Company, and with respect to the Company, Parent and
Merger Sub.
"Parent" shall have the meaning set forth in the preamble.
"Parent Banker" shall have the meaning set forth in Section
4.2(h).
"Parent Class B Common Stock" mean Class B common stock, par
value $0.01 per share, of Parent.
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"Parent Common Stock" means common stock, par value $0.01 per
share, of Parent.
"Parent Compensatory Warrant" shall have the meaning set forth
in Section 3.4(a).
"Parent Disclosure Letter" shall have the meaning set forth in
Section 4.2(b).
"Parent ESPP Option" shall have the meaning set forth in
Section 3.5(b).
"Parent Material Adverse Effect" shall have the meaning set
forth in Section 4.2(a).
"Parent Preferred Stock" means the preferred stock, par value
$0.01 per share, of Parent.
"Parent Proxy Statement" shall have the meaning set forth in
Section 4.2(b).
"Parent SEC Reports" shall have the meaning set forth in
Section 4.2(f).
"Parent Stock-Based Award" shall have the meaning set forth in
Section 3.3(b).
"Parent Stock Option" shall have the meaning set forth in
Section 3.3(a).
"Parent Warrant" shall have the meaning set forth in Section
3.4(b).
"person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (as defined in the Exchange Act).
"Proxy and Information Statement/Prospectus" shall have the
meaning set forth in Section 5.4.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Significant Subsidiaries" shall have the meaning set forth in
Section 4.1(a).
"Special Committee" means the Special Committee of the Board
of Directors of the Company.
"Surviving Corporation" shall have the meaning set forth in
Section 2.1.
"Transactions" shall have the meaning set forth in Section
4.1(c)(i).
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"Washington Secretary" shall mean the Secretary of State of
the State of Washington.
"WBCA" means the Washington Business Corporation Act.
ARTICLE II
THE MERGER
2.1 The Merger. Upon the terms and subject to the conditions
hereof, in accordance with the WBCA, at the Effective Time, Merger Sub shall
merge with and into the Company, with the Company continuing as the surviving
corporation in the Merger (the "Surviving Corporation") and the separate
corporate existence of Merger Sub shall cease. As a result of the Merger, the
Company will become a wholly owned subsidiary of Parent.
2.2 Effective Time of the Merger. As soon as practicable on the
Closing Date, the Company shall file with the Washington Secretary articles of
merger with respect to the Merger (the "Articles of Merger"), which Articles of
Merger shall be in such form as is required by, and executed and acknowledged in
accordance with, the WBCA. The Merger shall become effective upon such filing
or at such later date and time as Parent and the Company shall agree and shall
be specified in the Articles of Merger. As used in this Agreement, the term
"Effective Time" shall mean the date and time when the Merger becomes effective
and shall occur on the Closing Date.
2.3 Effects of the Merger. The Merger shall have the effects set
forth in the applicable provisions of the WBCA.
2.4 Closing. Upon the terms and subject to the conditions set
forth in Article VI and the termination rights set forth in Article VII, the
closing of the transactions contemplated by this Agreement (the "Closing") will
take place at the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 at 10:00 a.m. on the second Business Day
following the satisfaction or waiver (subject to applicable law) of the
conditions (excluding conditions that, by their nature, cannot be satisfied
until the Closing Date) set forth in Article VI, unless this Agreement has been
theretofore terminated pursuant to its terms or unless another place, time or
date is agreed to in writing by Parent and the Company (the date of the Closing,
the "Closing Date").
2.5 Articles of Incorporation. At the Effective Time, the
articles of incorporation of the Surviving Corporation shall be amended in its
entirety to read as set forth in Exhibit A, until thereafter changed or amended
as provided therein or by applicable law.
2.6 By-Laws. Subject to Section 5.10(a), at the Effective Time,
the by-laws of Merger Sub shall be the by-laws of the Surviving Corporation.
2.7 Directors and Officers. The directors of Merger Sub
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation and the officers of the
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Company immediately prior to the Effective Time shall be the officers of the
Surviving Corporation, in each case, until their respective successors are duly
elected and qualified.
ARTICLE III
CONVERSION OF SECURITIES
3.1 Effect of Merger on Capital Stock. At the Effective Time,
subject and pursuant to the terms of this Agreement, by virtue of the Merger and
without any action on the part of the Company, Merger Sub or the holders of any
shares of capital stock of the Company or Merger Sub:
(a) Capital Stock of Merger Sub. Each issued and outstanding
share of Merger Sub Common Stock shall be converted into and exchanged for a one
share of common stock of the Surviving Corporation with the same rights, powers
and privileges as the shares so converted and shall constitute the only
outstanding shares of capital stock of the Surviving Corporation.
(b) [Intentionally Omitted.]
(c) Exchange Ratio for Company Stock. Each share of Company Stock
issued and outstanding immediately prior to the Effective Time (other than
Dissenting Shares), shall, subject to Section 3.1(d), be converted into the
right to receive a number of fully paid and nonassessable shares of Parent
Common Stock equal to the Exchange Ratio (the "Merger Consideration"). At the
Effective Time, all such shares of Company Stock shall no longer be outstanding,
and shall automatically be cancelled and retired and cease to exist, and each
holder of a certificate representing any such shares of Company Stock shall
cease to have any rights with respect thereto, except the right to receive the
shares of Parent Common Stock to be issued in consideration therefor upon the
surrender of such certificate in accordance with Section 3.2, without interest.
No fractional shares of Parent Common Stock shall be issued; and, in lieu
thereof, a cash payment shall be made pursuant to Section 3.2(e).
(d) Adjustment of Exchange Ratio for Dilution and Other Matters.
If, between the date of this Agreement and the Effective Time, the outstanding
shares of Parent Common Stock or Company Stock shall have been changed into a
different number of shares or a different class by reason of any
reclassification, recapitalization, reorganization, split-up, stock dividend
(including any dividend or distribution of securities convertible into, or
exercisable or exchangeable for, Parent Common Stock or Company Stock), stock
combination, exchange of shares, readjustment or otherwise, as the case may be,
then the Exchange Ratio and the Merger Consideration shall, without duplication,
be correspondingly adjusted.
(e) Right to Waive Merger Consideration. (i) Notwithstanding any
other provisions in this Agreement, any holder of shares of Company Stock issued
and outstanding immediately prior to the Effective Time that would otherwise be
entitled to receive the Merger Consideration pursuant to Section 3.1(c) may
elect, by delivery of written notice to the Company
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prior to the Effective Time, to waive issuance of the Merger Consideration in
respect of such holder's shares of Company Stock, in which case, such shares of
Company Stock shall be cancelled and retired and cease to exist as of the
Effective Time and no shares of Parent Common Stock shall be issued in the
Merger in respect thereof.
(ii) Parent hereby elects to waive issuance of the Merger
Consideration pursuant to Section 3.1(c) in respect of all of the shares of
Company Common Stock and Company Class B Common Stock issued and outstanding and
held by Parent immediately prior to the Effective Time.
3.2 Exchange of Certificates.
(a) Exchange Agent. Prior to the Closing Date, Parent shall
select the Bank of New York or another bank or trust company reasonably
acceptable to the Company to act as exchange agent in the Merger (the
"Exchange Agent"). Prior to the Effective Time, Parent shall deposit with the
Exchange Agent, for the benefit of the holders of shares of Company Stock, for
exchange in accordance with this Article 3, certificates representing the shares
of Parent Common Stock (such shares of Parent Common Stock, together with any
dividends or distributions with respect thereto, the "Exchange Fund") issuable
pursuant to Section 3.1(c) at the Effective Time in exchange for outstanding
shares of Company Stock, which shall include such shares of Parent Common Stock
to be sold by the Exchange Agent pursuant to Section 3.2(e).
(b) Exchange Procedures. As soon as practicable after the
Effective Time, Parent shall cause the Exchange Agent to mail to each holder of
record (other than the Company, Parent, Merger Sub and any wholly owned
subsidiary of the Company) of a certificate or certificates that immediately
prior to the Effective Time represented issued and outstanding shares of Company
Stock (collectively, the "Certificates") whose shares were converted into the
right to receive Parent Common Stock pursuant to Section 3.1(c), (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such other
provisions as Parent and the Company may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for certificates representing Parent Common Stock and any cash in lieu of
fractional shares of Parent Common Stock. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with a duly executed letter of
transmittal and such other documents as may be reasonably required by the
Exchange Agent, the holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole shares of
Parent Common Stock which such holder has the right to receive pursuant to the
provisions of this Article 3 and any cash in lieu of fractional shares of Parent
Common Stock, and the Certificate so surrendered shall forthwith be cancelled.
In the event of a transfer of ownership of shares of Company Stock which is not
registered on the transfer records of the Company, a certificate representing
the proper number of shares of Parent Common Stock and any cash in lieu of
fractional shares of Parent Common Stock may be issued and paid to a transferee
if the Certificate representing such Company Stock is presented to the Exchange
Agent, accompanied by all documents required to
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evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this
Section 3.2, each Certificate shall be deemed, from and after the Effective
Time, to represent only the right to receive upon such surrender the certificate
representing shares of Parent Common Stock and cash in lieu of any fractional
shares of Parent Common Stock as contemplated by this Article 3 and the WBCA.
The consideration to be issued in the Merger will be delivered by the Exchange
Agent as promptly as practicable following surrender of a Certificate and any
other required documents. No interest will be payable on such consideration,
regardless of any delay in making payments.
(c) Distributions with Respect to Unsurrendered Certificates. No
dividends or other distributions declared or made after the Effective Time with
respect to Parent Common Stock with a record date after the Effective Time shall
be paid to the holder of any unsurrendered Certificate with respect to the
shares of Parent Common Stock represented thereby, and no cash payment in lieu
of fractional shares shall be paid to any such holder pursuant to Section 3.2(e)
until the holder of record of such Certificate shall surrender such Certificate.
Subject to the effect, if any, of applicable laws, following surrender of any
such Certificate, there shall be paid to the record holder of the certificates
representing whole shares of Parent Common Stock issued in exchange therefor or
such holder's transferee pursuant to Section 3.2(e), without interest, (i) at
the time of such surrender, the amount of any cash payable in lieu of a
fractional share of Parent Common Stock to which such holder is entitled
pursuant to Section 3.2(e) and the amount of dividends or other distributions on
Parent Common Stock with a record date after the Effective Time theretofore paid
with respect to such whole shares of Parent Common Stock, and (ii) at the
appropriate payment date, the amount of dividends or other distributions on
Parent Common Stock with a record date after the Effective Time but prior to
surrender and a payment date subsequent to surrender payable with respect to
such whole shares of Parent Common Stock.
(d) No Further Ownership Rights in Company Stock. All shares of
Parent Common Stock issued upon the surrender for exchange of shares of Company
Stock in accordance with the terms of this Article 3 (plus any cash paid
pursuant to Section 3.2(c) or 3.2(e)) shall be deemed to have been issued (and
paid) in full satisfaction of all rights pertaining to such shares of Company
Stock. From and after the Effective Time, the stock transfer books of the
Company shall be closed with respect to the shares of Company Capital Stock, and
there shall be no further registration of transfers on the stock transfer books
of the Company or the Surviving Corporation of the shares of Company Capital
Stock that were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be cancelled and exchanged as provided in
this Article 3.
(e) No Issuance of Fractional Shares.
(i) No certificates or scrip for fractional shares of
Parent Common Stock shall be issued upon the surrender for exchange of
Certificates, and such fractional share interests will not entitle the owner
thereof to vote or to any rights of a stockholder of Parent.
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(ii) As promptly as practicable following the Effective
Time, the Exchange Agent shall determine the excess of (A) the number of full
shares of Parent Common Stock delivered to the Exchange Agent by Parent pursuant
to Section 3.2(a) over (B) the aggregate number of full shares of Parent Common
Stock to be distributed to holders of Company Stock pursuant to Section 3.2(b)
(such excess, the "Excess Shares"). As soon after the Effective Time as
practicable, the Exchange Agent, as agent for the holders of Company Stock,
shall sell the Excess Shares at then prevailing prices in the over-the-counter
market, all in the manner provided in clause (iii) of this Section 3.2(e).
(iii) The sale of the Excess Shares by the Exchange Agent
shall be executed in the over-the-counter market through one or more member
firms of the National Association of Securities Dealers, Inc. (the "NASD") and
shall be executed in round lots to the extent practicable. Until the net
proceeds of such sale or sales have been distributed to the holders of Company
Stock, the Exchange Agent will hold such proceeds in trust for the holders of
Company Stock (the "Common Shares Trust"). Parent shall pay all commissions,
transfer taxes and other out-of-pocket transaction costs, including the expenses
and compensation of the Exchange Agent incurred in connection with such sale of
the Excess Shares. The Exchange Agent shall determine the portion of the Common
Shares Trust to which each holder of Company Stock shall be entitled, if any, by
multiplying the amount of the aggregate net proceeds comprising the Common
Shares Trust by a fraction, the numerator of which is the amount of the
fractional share interest to which such holder of Company Stock is entitled and
the denominator of which is the aggregate amount of fractional share interests
to which all holders of Company Stock are entitled.
(iv) As soon as practicable after the determination of the
amount of cash, if any, to be paid to the holders of Company Stock in lieu of
any fractional share interests and subject to clause (v) of this Section 3.2(e),
the Exchange Agent shall make available such amounts to such holders of Company
Stock.
(v) Parent or the Exchange Agent shall be entitled to
deduct and withhold from the consideration otherwise payable pursuant to this
Agreement to any holder of shares of Company Stock such amounts as Parent or the
Exchange Agent is required to deduct and withhold with respect to the making of
such payment under the Code, or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by Parent or the Exchange
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 Stock in respect of
which such deduction and withholding was made by Parent or the Exchange Agent.
(f) Termination of Exchange Fund. Any portion of the
Exchange Fund and Common Shares Trust that remains undistributed to the
stockholders of the Company for 12 months after the Effective Time shall be
delivered to Parent, upon demand, and any former stockholders of the Company
that have not theretofore complied with this Article 3 shall thereafter look
only to Parent for payment of their claim for Parent Common Stock, any cash in
lieu of fractional shares of Parent Common Stock and any dividends or
distributions with respect to Parent Common Stock.
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(g) Dissenting Shares. Notwithstanding any other
provision contained in this Agreement, no shares of Company Stock that are
issued and outstanding as of the Effective Time and that are held by a
stockholder who has properly exercised such stockholder's dissenter's rights
(any such shares being referred to herein as "Dissenting Shares") under the WBCA
shall be converted into the right to receive the Merger Consideration as
provided in Section 3.1(c) unless and until such stockholder shall have failed
to perfect, or shall have effectively withdrawn or lost, such stockholder's
right to dissent from the Merger under the WBCA and to receive such
consideration as may be determined to be due with respect to such Dissenting
Shares pursuant to and subject to the requirements of the WBCA. If any holder
of Dissenting Shares shall have so failed to perfect or has effectively
withdrawn or lost such stockholder's right to dissent from the Merger as of the
Effective Time, each of such holder's shares of Company Stock shall thereupon be
deemed to have been converted into and to have become, as of the Effective Time,
the right to receive the Merger Consideration. Payments to holders of Dissenting
Shares under this Section 3.2(g) shall be made by the Company out of its own
funds, no funds shall be supplied for that purpose, directly or indirectly, by
Parent, nor shall Parent directly or indirectly reimburse the Company for any
payments to holders of Dissenting Shares.
(h) No Liability. Neither the Exchange Agent, Parent,
Merger Sub nor the Company shall be liable to any holder of shares of Company
Stock or Parent Common Stock, as the case may be, for shares (or dividends or
distributions with respect thereto) from the Exchange Fund or cash from the
Common Shares Trust delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(i) Lost, Stolen or Destroyed Certificates. In the event
any Certificates shall have been lost, stolen or destroyed, the holder of such
lost, stolen or destroyed Certificates shall execute an affidavit of that fact
upon request. The holder of any such lost, stolen or destroyed Certificates
shall also deliver a reasonable indemnity against any claim that may be made
against Parent or the Exchange Agent with respect to the Certificates alleged
to have been lost, stolen or destroyed. The affidavit and any indemnity that
may be required hereunder shall be delivered to the Exchange Agent, who shall be
responsible for making payment for such lost, stolen or destroyed
Certificate(s).
3.3 Company Stock Options and Other Equity-Based Awards. (a)
Each option to purchase shares of Company Common Stock (a "Company Stock
Option") granted under the employee and director stock plans of the Company (the
"Company Stock Plans"), whether vested or unvested, that is outstanding
immediately prior to the Effective Time shall, at the Effective Time, cease to
represent a right to acquire shares of Company Common Stock and shall be
converted, at the Effective Time, into an option to purchase shares of Parent
Common Stock (a "Parent Stock Option") on the same terms and conditions as were
applicable under such Company Stock Option. The number of shares of Parent
Common Stock subject to each such Parent Stock Option shall be the number of
shares of Company Common Stock subject to each such Company Stock Option
immediately prior to the Effective Time multiplied by the Exchange Ratio,
rounded, if necessary, to the nearest whole share of Parent Common Stock, and
such Parent Stock Option shall have an exercise price per share (rounded to the
nearest cent) equal to the per share exercise price specified in such Company
Stock Option divided by the
11
Exchange Ratio; provided, however, that, in the case of any Company Stock Option
to which Section 421 of the Code applies immediately prior to the Effective Time
by reason of its qualification under Section 422 of the Code, the exercise
price, the number of shares of Parent Common Stock subject to such option and
the terms and conditions of exercise of such option shall be determined in a
manner consistent with the requirements of Section 424(a) of the Code.
(b) At the Effective Time, each right of any kind, contingent or
accrued, to receive shares of Company Common Stock or benefits measured by the
value of a number of shares of Company Common Stock, and each award of any kind
consisting of shares of Company Common Stock, granted under the Company Stock
Plans (including restricted stock, restricted stock units, deferred stock units
and dividend equivalents), other than Company Stock Options (each, a "Company
Stock-Based Award"), whether vested or unvested, which is outstanding
immediately prior to the Effective Time shall cease to represent a right or
award with respect to shares of Company Common Stock and shall be converted, at
the Effective Time, into a right or award with respect to Parent Common Stock (a
"Parent Stock-Based Award"), on the same terms and conditions as were applicable
under the Company Stock-Based Awards. The number of shares of Parent Common
Stock subject to each such Parent Stock-Based Award shall be equal to the number
of shares of Company Common Stock subject to the Company Stock-Based Award,
multiplied by the Exchange Ratio, rounded, if necessary, to the nearest whole
share of Parent Common Stock. All dividend equivalents credited to the account
of each holder of a Company Stock-Based Award as of the Effective Time shall
remain credited to such holder's account immediately following the Effective
Time, subject to adjustment in accordance with the foregoing.
(c) As soon as practicable after the Effective Time, Parent shall
deliver to the holders of Company Stock Options and Company Stock-Based Awards
appropriate notices setting forth such holders' rights pursuant to the
respective Company Stock Plans and agreements evidencing the grants of such
Company Stock Options and the Company Stock-Based Awards, and stating that such
Company Stock Options and Company Stock-Based Awards and agreements have been
assumed by Parent and shall continue in effect on the same terms and conditions
(subject to the adjustments required by this Section 3.3 after giving effect to
the Merger and the terms of the Company Stock Plans).
(d) Prior to the Effective Time, the Company shall take all
necessary action for the adjustment of the Company Stock Options and the Company
Stock-Based Awards under this Section 3.3. Parent shall reserve for issuance a
number of shares of Parent Common Stock at least equal to the number of shares
of Parent Common Stock that will be subject to Parent Stock Options and Parent
Stock-Based Awards as a result of the actions contemplated by this Section 3.3.
As soon as practicable following the Effective Time (and in any event not later
than two Business Days following the Effective Time), Parent shall file a
registration statement on Form S-8 (or any successor form, or if Form S-8 is not
available, other appropriate forms) with respect to the shares of Parent Common
Stock subject to such Parent Stock Options and Parent Stock-Based Awards and
shall maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
12
contained therein) for so long as such Parent Stock Options or Parent Stock-
Based Awards remain outstanding.
3.4 Company Warrants. (a) Each warrant to purchase shares of
Company Common Stock (a "Company Compensatory Warrant") granted under the
Company Stock Plans and the Company Optionholder Warrant Agreement, whether
vested or unvested, that is outstanding and held by an employee or officer of
the Company immediately prior to the Effective Time shall, at the Effective
Time, cease to represent a right to purchase shares of Company Common Stock and
shall, be converted, at the Effective Time, into a warrant to purchase shares of
Parent Common Stock (a "Parent Compensatory Warrant") on substantially the same
terms and conditions as were applicable under such Company Compensatory Warrant.
The number of shares of Parent Common Stock subject to each such Parent
Compensatory Warrant shall be the number of shares of Company Common Stock
subject to each such Company Compensatory Warrant immediately prior to the
Effective Time multiplied by the Exchange Ratio, rounded, if necessary, to the
nearest whole share of Parent Common Stock, and such Parent Compensatory Warrant
shall have an exercise price per share (rounded to the nearest cent) equal to
the per share exercise price specified in such Company Compensatory Warrant
divided by the Exchange Ratio.
(b) Each warrant to purchase shares of Company Common Stock (a
"Company Warrant") granted under the Company Warrant Agreement or any other
warrant agreement of the Company that is outstanding immediately prior to the
Effective Time shall, at the Effective Time, cease to represent a right to
purchase shares of Company Common Stock and shall be converted, at the Effective
Time, into a warrant to purchase shares of Parent Common Stock (a "Parent
Warrant") on substantially the same terms and conditions as were applicable
under such Company Warrant. The number of shares of Parent Common Stock subject
to each such Parent Warrant shall be the number of shares of Company Common
Stock subject to each such Company Warrant immediately prior to the Effective
Time multiplied by the Exchange Ratio, rounded, if necessary, to the nearest
whole share of Parent Common Stock, and such Parent Warrant shall have an
exercise price per share (rounded to the nearest cent) equal to the per share
exercise price specified in such Company Warrant divided by the Exchange Ratio.
3.5 Termination of Company ESPP. (a) As of the date hereof, the
Company shall have taken such action as is necessary to provide that (i) only
those employees of the Company and its subsidiaries who have completed
Enrollment Agreements (as defined in the ESPP) for the Current Offering Period
(as defined below) prior to the date hereof (and in all cases prior to any
earlier date as required by the ESPP) shall be eligible to participate in the
Current Offering Period and (ii) after the end of the Current Offering Period,
no further offerings shall commence under the ESPP and the ESPP shall be
terminated effective on the last day of the Current Offering Period. Prior to
the execution hereof, the Company shall provide Parent with all documentation
reasonably necessary to evidence the foregoing actions.
(b) In the event the Effective Time occurs prior to July 1, 2003:
(i) each option to purchase shares of Company Common Stock under the ESPP for
the "offering" (as used in the ESPP) that commenced as of January 1, 2003 (the
"Current Offering Period") that is
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outstanding immediately prior to the Effective Time (an "ESPP Option") shall, at
the Effective Time, cease to represent a right to acquire shares of Company
Common Stock and shall be converted, at the Effective Time, into a right to
purchase shares of Parent Common Stock (a "Parent ESPP Option") on the same
terms and conditions as were applicable under such ESPP Option; (ii) the
purchase price per share under the ESPP shall be the lesser of (A) 85% of the
"fair market value" (as defined in the ESPP) of Company Common Stock on the
"offering date" (as defined in the ESPP) divided by the Exchange Ratio (rounded
up to the nearest whole cent) or (B) 85% of the fair market value of Parent
Common Stock on the last Business Day of the offering, provided, however, that,
the purchase price and the terms and conditions of such option shall be
determined in a manner consistent with the requirements of Section 424(a) of the
Code; and (iii) the maximum number of shares issuable under the ESPP shall be
adjusted by multiplying such amount by the Exchange Ratio (rounded down to the
nearest whole share).
3.6 Further Assurances. If, at any time after the Effective Time,
any such further action is necessary or desirable to carry out the purposes of
this Agreement, or to vest, perfect or confirm of record or otherwise establish
in the Surviving Corporation full right, title and interest in, to or under any
of the assets, property, rights, privileges, powers and franchises of the
Company and Merger Sub, the officers and directors of the Surviving Corporation
are fully authorized in the name and on behalf of each of the Company and Merger
Sub or otherwise to take all such lawful and reasonably necessary or desirable
action.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Company. The Company
represents and warrants to Parent as follows:
(a) Organization and Qualification. Each of the Company and its
"Significant Subsidiaries" (as defined in Regulation S-X promulgated by the SEC
and which are referred to herein as the "Significant Subsidiaries") is a
corporation or other entity duly incorporated or organized, validly existing
and, to the extent such concept is legally recognized, in good standing under
the laws of the jurisdiction of its incorporation or organization, and has the
requisite corporate or other power and authority to own, lease and operate its
assets and properties and to carry on its business as it is now being conducted.
Each of the Company and its Significant Subsidiaries is in possession of all
franchises, grants, authorizations, licenses, permits, easements, consents,
certificates, approvals and orders necessary to own, lease and operate the
properties it purports to own, operate or lease and to carry on its business as
it is now being conducted, except where the failure to have such franchises,
grants, authorizations, licenses, permits, easements, consents, certificates,
approvals and orders would not, individually or in the aggregate, have a Company
Material Adverse Effect. Each of the Company and its subsidiaries is, as
applicable, duly qualified or licensed as a foreign corporation to do business,
and is in good standing, to the extent such concept is legally recognized, in
each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes
14
such qualification or licensing necessary, except for such failures to be so
duly qualified or licensed and in good standing that would not, either
individually or in the aggregate, have a Company Material Adverse Effect.
"Company Material Adverse Effect" shall mean any change, event or effect that is
materially adverse to the business, financial condition or results of operations
of the Company and its subsidiaries taken as a whole, in each case excluding (i)
any changes or effects resulting from any matter, which matter was expressly
approved by the Board of Directors of the Company following the date hereof
unless, with respect to such matter, a majority of the directors of the Company
who are also executive officers of Parent either voted against or abstained from
voting (such matter and related contemplated transactions, an "Approved
Matter"), (ii) changes in economic or regulatory conditions in the industries in
which the Company carries on business as of the date hereof, and changes in
general economic, regulatory or political conditions, including, without
limitation, acts of war or terrorism, and (iii) changes resulting from the
announcement of the Transactions and any other public announcement of Parent
during the term of this Agreement to the extent not covered in any other public
announcement of the Company during the term of this Agreement or based upon
information provided to Parent by the Company. Other than wholly owned
subsidiaries and except as disclosed in the Company SEC Reports or Section
4.1(a) of the disclosure letter delivered by the Company to Parent on or prior
to the date hereof (the "Company Disclosure Letter"), the Company does not
directly or indirectly own any equity or similar interest in, or any interest
convertible or exchangeable or exercisable for any equity or similar interest
in, any corporation, partnership, limited liability company, joint venture or
other business, association or entity.
(b) Capitalization. The authorized capital stock of the Company
consists of 600,000,000 shares of Company Common Stock, 150,000,000 shares of
Company Class B Common Stock, and 20,000,000 shares of Company Preferred Stock.
At the close of business on March 10, 2003, 49,562,266 shares of Company Common
Stock, 69,002,382 shares of Company Class B Common Stock and no shares of
Company Preferred Stock were issued and outstanding. All outstanding shares of
Company Common Stock are duly authorized, validly issued and fully paid and
nonassessable. Except as set forth in this Section 4.1(b) or as disclosed in
Section 4.1(b) of the Company Disclosure Letter, as of March 10, 2003, there are
no options, warrants, rights, puts, calls, commitments, or other contracts,
arrangements or understandings issued by or binding upon the Company requiring
or providing for, and there are no outstanding debt or equity securities of the
Company which upon the conversion, exchange or exercise thereof would require or
provide for the issuance by the Company of any new or additional shares of
Company Capital Stock (or any other securities of the Company) which, with or
without notice, lapse of time and/or payment of monies, are or would be
convertible into or exercisable or exchangeable for shares of Company Capital
Stock (or any other securities of the Company). Since March 10, 2003 through
the date hereof, the Company has not issued any shares of its capital stock or
any securities convertible into or exercisable for any shares of its capital
stock, other than employee stock options to purchase 129,500 shares of Company
Common Stock and 51,000 restricted stock units, in each case, pursuant to
Company Benefit Plans (as defined below), or shares of Company Common Stock
pursuant to the exercise of employee stock options granted prior to such date.
Following the date hereof, the Company will not issue any shares of its capital
stock or any securities convertible into or exercisable for any shares of its
capital stock except to the
15
extent permitted to be granted pursuant to the terms of this Agreement. There
are no preemptive or other similar rights available to the existing holders of
Company Common Stock.
(c) Authority Relative to this Agreement; Board Approval.
(i) The Company has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and, subject to obtaining the approval of the stockholders of the
Company of this Agreement, to consummate the transactions contemplated by this
Agreement (the "Transactions"). The execution and delivery of this Agreement
by the Company and the consummation by the Company of the Transactions have been
duly and validly authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or to consummate the Transactions (other
than, with respect to the Merger, the approval of this Agreement by the holders
of a majority of the voting power of the Company Common Stock and the Company
Class B Common Stock, voting together as a single class (the "Company
Stockholder Approval")). This Agreement has been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and
delivery by the other parties hereto, constitutes the legal and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to creditors rights generally and (B)
the availability of specific performance or injunctive relief and other
equitable remedies.
(ii) The Board of Directors of the Company, based on the
approval and recommendation of the Special Committee (which approval and
recommendation was a condition to the approval of the Company's Board of
Directors set forth in clause (A) of this sentence) has, prior to the execution
of this Agreement, (A) approved this Agreement and the Transactions, (B)
determined that the Transactions are fair to and in the best interests of its
public stockholders, and (C) recommended that the stockholders of the Company
approve this Agreement and the Transactions. This Agreement and the
Transactions have been approved by the unanimous vote of the members of the
Special Committee (which vote constitutes approval for purposes of WBCA Section
23B.08.720(1)) and the unanimous vote of the members of the Board of Directors
of the Company. Each member of the Special Committee is a "qualified director"
as defined under WBCA Section 23B.08.720(4).
(d) No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement by the
Company do not, and the performance of its obligations hereunder and the
consummation of the Transactions by the Company will not, (A) conflict with or
violate the Articles of Incorporation, Bylaws or equivalent organizational
documents of the Company or any of its Significant Subsidiaries; (B) subject to
obtaining the Company Stockholder Approval and compliance with the requirements
set forth in Section 4.1(d)(ii), conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Company or any of its
subsidiaries or by which any of their respective properties is bound or
affected; or (C) result in any breach of or constitute a default (or an event
16
that with notice or lapse of time or both would become a default) under, or
alter the rights or obligations of any third party or the Company or its
subsidiaries under, or give to others any rights of termination, amendment,
acceleration, increased payments or cancellation of, or result in the creation
of a lien or other encumbrance on any of the properties or assets of the Company
or any of its subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their respective
properties are bound or affected, in each case having value or requiring
payments over the term thereof equal to or greater than $5.0 million, except, in
the case of clause (B) above, for any such conflicts or violations that would
not prevent or delay consummation of the Merger in any material respect, or
otherwise prevent the Company from performing its obligations under this
Agreement in any material respect, and would not have, individually or in the
aggregate, a Company Material Adverse Effect. Except as set forth in Section
4.1(d)(i) of the Company Disclosure Letter, there are no material consents,
waivers and approvals under any agreements, contracts, licenses or leases
required to be obtained by the Company or its Significant Subsidiaries in
connection with entering into of this Agreement or the consummation of the
Transactions.
(ii) The execution and delivery of this Agreement by the
Company do not, and the performance of its obligations hereunder and the
consummation of the Transactions by the Company will not, require any consent,
approval, authorization or permit of, or registration or filing with or
notification to, any Governmental Entity, except (A) the filing of documents to
satisfy the applicable requirements, if any, of the Exchange Act or state
takeover laws, (B) the filing, and effectiveness of the Form S-4, including the
Proxy and Information Statement/Prospectus in definitive form relating to the
Transactions, (C) the filing of the Articles of Merger with the Washington
Secretary and appropriate corresponding documents with the Secretary of State of
other states in which the Company is qualified to transact business as a foreign
corporation, (D) filings under the rules and regulations of the NASD, and (E)
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications (1) would not prevent or delay
consummation of the Merger in any material respect or otherwise prevent or
delay in any material respect the Company from performing its obligations under
this Agreement or (2) would not, individually or in the aggregate, have a
Company Material Adverse Effect.
(e) Compliance with Laws. Except as set forth in Section 4.1(e)
of the Company Disclosure Letter, neither the Company nor any of its
subsidiaries is in conflict with, or in default or violation of (a) any law,
rule, regulation, order, judgment or decree applicable to the Company or any of
its subsidiaries or by which any of their respective properties is bound, or (b)
whether after the giving of notice or passage of time or both, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or any of their
respective properties is bound, except in each case for any such conflicts,
defaults or violations that do not and would not have, individually or in the
aggregate, a Company Material Adverse Effect.
17
(f) SEC Filings; Financial Statements.
(i) The Company has made available to Parent a correct
and complete copy of each report, schedule, registration statement (but only
such registration statements that have become effective prior to the date
hereof) and definitive proxy statement filed by the Company with the SEC on or
since January 1, 2002 and prior to the date of this Agreement (the "Company SEC
Reports"), which are all the forms, reports and documents required to be filed
by the Company with the SEC since such date; provided that, if the Company
amends any of the Company SEC Reports, such amendment shall not mean or imply
that any representation or warranty in this Agreement was not true when made or
became untrue thereafter. As of their respective dates, the Company SEC Reports
(A) complied in all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, and the rules and regulations of
the SEC thereunder applicable thereto, and (B) did not at the time they were
filed (or if amended or superseded by a filing prior to the date of this
Agreement then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading, provided, however, that no representation is made with respect to
information included in the Company SEC Reports that was provided in writing by
Parent. None of the Company's subsidiaries is required to file any reports or
other documents with the SEC.
(ii) Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the Company
SEC Reports complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, had been prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of the unaudited statements, as permitted by
Form 10-Q or the Exchange Act regulations promulgated by the SEC), and each
fairly presented the consolidated financial position of the Company and its
consolidated subsidiaries in all material respects as of the respective dates
thereof and the consolidated results of its operations and cash flows for the
periods indicated (subject, in the case of the unaudited interim financial
statements, to normal audit adjustments which were not and are not expected,
individually or in the aggregate, to be material in amount).
(g) Registration Statement; Proxy and Information Statement/
Prospectus. None of the information supplied or to be supplied by the Company
in writing specifically for inclusion or incorporation by reference in (i) the
registration statement on Form S-4 of Parent (the "Form S-4") in connection with
the issuance of the Parent Common Stock in or as a result of the Merger will, at
the time the Form S-4 is filed with the SEC and at the time the Form S-4 becomes
effective under the Securities Act, contain any untrue statement of a material
18
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and (ii) the Proxy and
Information Statement/Prospectus will, at the date the Proxy and Information
Statement/Prospectus is mailed to the stockholders of the Company and the
stockholders of Parent and as of the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company makes no representation or warranty
with respect to any information provided by or required to be provided by
Parent, Merger Sub and/or by their auditors, legal counsel, financial advisors
or other consultants or advisors specifically for use in the Form S-4 or the
Proxy and Information Statement/Prospectus. The Proxy and Information
Statement/Prospectus will comply as to form in all material respects with the
provisions of the Exchange Act and, if applicable, the Securities Act, and the
rules and regulations promulgated by the SEC thereunder.
(h) Brokers. Other than Xxxxxx Xxxxxxx, Inc. (the "Company
Banker"), no broker, finder or investment banker is entitled to any brokerage,
finders' or other fee or commission in connection with the Merger and the other
Transactions based upon arrangements made by or on behalf of the Company or the
Special Committee. The Company heretofore has furnished to Parent a complete
copy of all agreements between the Company Banker and the Company or the Special
Committee pursuant to which such firm would be entitled to any payment relating
to the Merger and the Transactions.
(i) Opinion of Financial Advisor. The Special Committee and the
Company's Board of Directors have received the written opinion, dated March 18,
2003, of the Company Banker that, as of March 18, 2003, the Merger Consideration
is fair to the holders of Company Common Stock (other than Parent or any
subsidiary of Parent) from a financial point of view, a copy of which opinion
has been delivered to Parent.
(j) Employee Benefit Plans.
(i) The Company has delivered a true and complete list of
all material pension, retirement, profit-sharing, deferred compensation, stock
option, employee stock ownership, severance pay, vacation, bonus or other
material incentive or employee benefit plans, arrangements or agreements,
whether arrived at through collective bargaining or otherwise, including,
without limitation, all "employee benefit plans" (as defined in Section 3(3) of
ERISA), adopted, maintained by, sponsored in whole or in part by, or contributed
to by the Company or any entity required to be aggregated with the Company
pursuant to Section 414 of the Code for the benefit of current or former
employees, retirees, dependents, spouses, directors, independent contractors or
other beneficiaries and under which current or former employees, retirees,
dependents, spouses, directors, independent contractors or other beneficiaries
are eligible to participate, excluding any such plans, arrangements or
agreements that are offered or maintained by Parent (collectively, the "Company
Benefit Plans"). Any of the Company Benefit Plans which is an "employee pension
benefit plan," as that term is defined in Section 3(2) of ERISA, is referred to
herein as an "ERISA Plan." No Company Benefit Plan is or has been a
multiemployer plan within the meaning of Section 3(37) of ERISA (a
"Multiemployer Plan").
(ii) (A) Each of the Company Benefit Plans has been
operated and administered in all material respects in compliance with applicable
laws, including, but not limited to, ERISA (as defined herein) and the Code, (B)
except as set forth on Section 4.1(j) of
19
the Company Disclosure Letter, each of the Company Benefit Plans intended to be
"qualified" within the meaning of Section 401(a) of the Code has received a
favorable determination letter, and there are no existing circumstances or any
events that have occurred that would be reasonably expected to affect adversely
the qualified status of any such Company Benefit Plan, (C) no Company Benefit
Plan provides benefits, including, without limitation, death or medical benefits
(whether or not insured), with respect to current or former employees or
directors of Company or its subsidiaries beyond their retirement or other
termination of service, other than (1) coverage mandated by applicable law, (2)
death benefits or retirement benefits under any "employee pension plan" (as such
term is defined in Section 3(2) of ERISA, (3) deferred compensation benefits
accrued as liabilities on the books of the Company or its subsidiaries, or (4)
benefits the full cost of which is borne by the current or former employee or
director (or his beneficiary), and (D) to the knowledge of the Company there are
no pending, threatened or anticipated claims (other than routine claims for
benefits) by, on behalf of or against any of the Company Benefit Plans or any
trusts related thereto.
(iii) No Company Benefit Plan is subject to Title IV or
Section 302 of ERISA, and no circumstances exist that could result in
material liability to the Company under Title IV or Section 302 of ERISA.
(iv) Except as set forth in Section 4.1(j) of the Company
Disclosure Letter, neither the execution and delivery of this Agreement nor the
consummation of the Transactions (or any termination of employment in connection
with the Transactions) will (A) result in any payment becoming due to any
current or former director or employee of the Company or any of its affiliates
from the Company or any of its affiliates under any Company Benefit Plan or
otherwise, (B) increase any benefits otherwise payable under any Company Benefit
Plan or (C) result in any acceleration of the time of payment or vesting of any
such benefits, except for any payments or vesting which would occur upon a
termination of employment absent the consummation of the Transactions or which
arise under any plan, agreement or arrangement offered or maintained by Parent.
(k) Tax Matters. Neither the Company nor any of its subsidiaries
has taken or agreed to take any action that would prevent the Merger from
constituting a reorganization qualifying under the provisions of Section 368(a)
of the Code.
(l) Litigation. Except as disclosed in the Company SEC Reports or
Section 4.1(l) of the Company Disclosure Letter, there are no claims, actions,
suits, investigations or proceedings pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries, before any
court, arbitrator or administrative, governmental or regulatory authority or
body, domestic or foreign, that, individually or in the aggregate, would, or
would reasonably be anticipated to, have a Company Material Adverse Effect.
20
4.2 Representations and Warranties of Parent. Parent hereby
represents and warrants to the Company as follows:
(a) Organization and Qualification. Each of Parent, and Merger
Sub has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, and has the
requisite corporate power and authority to own, lease and operate its assets and
properties and to carry on its business as it is now being conducted. Each of
Parent and Merger Sub is duly qualified or licensed as a foreign corporation to
do business and is in good standing, in each jurisdiction where the character of
the properties owned, leased or operated by it or the nature of its business
makes such qualification or licensing necessary, except for such failures to be
so duly licensed or qualified and in good standing that would not, individually
or in the aggregate, have a Parent Material Adverse Effect. "Parent Material
Adverse Effect" shall mean any change, event or effect that is materially
adverse to the business, financial condition or results of operations of Parent
and its subsidiaries taken as a whole, in each case excluding (A) changes in
economic or regulatory conditions in the industries in which Parent carries on
business as of the date hereof, and changes in general economic, regulatory or
political conditions, including, without limitation, acts of war or terrorism,
and (B) changes resulting from the announcement of the Transactions and any
other public announcement of the Company during the term of this Agreement.
(b) Capitalization. As of the date hereof, the authorized capital
stock of Parent consists of 1,600,000,000 shares of Parent Common Stock,
400,000,000 shares of Parent B Common Stock and 100,000,000 shares of Parent
Preferred Stock. At the close of business on February 28, 2003, (a) 438,940,942
shares of Parent Common Stock were issued and 432,303,895 shares of Parent
Common Stock were outstanding, 64,629,996 shares of Parent Class B Common Stock
and 13,118,182 shares of Parent Preferred Stock were issued and outstanding, in
each case, except as disclosed in the Parent's proxy statement dated March 25,
2002 (the "Parent Proxy Statement"), not subject to any preemptive rights, and
(b) 6,637,047 shares of Parent Common Stock, no shares of Parent Class B Common
Stock and no shares of Parent Preferred Stock were held in treasury by Parent
or by subsidiaries of Parent. Other than (a) options to purchase 76,178,616
shares of Parent Common Stock issued pursuant to employee benefit plans and
agreements of Parent, (b) 79,280,240 shares of Parent Common Stock issuable upon
exercise of outstanding warrants, (c) up to 25,720,819 shares of Parent Common
Stock issuable upon conversion of Parent Series A Preferred Stock, (d) 456,169
restricted shares of Parent Common Stock, and (e) 2,604,002 shares of Parent
Common Stock issuable in respect of restricted units and (f) 97,814 shares of
Parent Common Stock issuable pursuant to Parent's Bonus Stock Purchase Program,
as of February 28, 2003, except in connection with this Agreement, as disclosed
in the disclosure letter delivered by Parent to the Company on or prior to the
date hereof (the "Parent Disclosure Letter"), or in connection with the
agreements described in the Parent Proxy Statement, as of February 28, 2003, (y)
there were no options, warrants, rights, puts, calls, commitments or other
contracts, arrangements or understandings issued by or binding upon Parent
requiring or providing for, and (z) there are no outstanding debt or equity
securities of Parent which upon the conversion, exchange or exercise thereof
would require or provide for the issuance by Parent of any new or additional
shares of Parent Common Stock (or any other securities of Parent) which, with or
without notice, lapse of time and/or
21
payment of monies, are or would be convertible into or exercisable or
exchangeable for Parent Common Stock (or any other securities of Parent). Since
February 28, 2003 through the date hereof, Parent has not issued any shares of
its capital stock or any securities convertible into or exercisable for any
shares of its capital stock, other than pursuant to the exercise of employee
stock options granted prior to such date and the vesting of restricted stock
units. The authorized capital stock of Merger Sub consists of 100 shares of
Merger Sub Common Stock, of which, as of the date hereof, 100 shares of Merger
Sub Common Stock are issued and outstanding. The shares of Parent Common Stock
to be issued in the Merger will, upon issuance, be validly issued, fully paid,
nonassessable, except as disclosed in the Parent Proxy Statement, not subject to
any preemptive rights, and free and clear of all security interests, liens,
claims, pledges or other encumbrances of any nature whatsoever (in each case to
which Parent is a party).
(c) Authority Relative to this Agreement; Board Approval.
(i) Each of Parent and Merger Sub has all necessary corporate
power and authority to execute and deliver this Agreement, and to perform its
obligations hereunder and to consummate the Transactions. The execution and
delivery of this Agreement by Parent, and Merger Sub and the consummation by
Parent and Merger Sub of the Transactions have been duly and validly authorized
by all necessary corporate action on the part of Parent and Merger Sub and no
other corporate proceedings on their part are necessary to authorize this
Agreement, or to consummate the Transactions (other than the approval of the
NASD listing application with respect to the issuance of shares of Parent Common
Stock in the Merger). This Agreement has been duly and validly executed and
delivered by Parent and Merger Sub and, assuming the due authorization,
execution and delivery by the Company, constitutes the legal and binding
obligations of Parent and Merger Sub, enforceable against them in accordance
with its terms, subject to (A) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to creditors rights
generally and (B) the availability of specific performance or injunctive relief
and other equitable remedies.
(ii) The Board of Directors of Parent has, prior to the
execution of this Agreement, (A) approved this Agreement and the Transactions,
and (B) determined that the Transactions are fair to and in the best interests
of the stockholders of Parent. This Agreement and the Transactions have been
approved by Parent's stockholders acting by written consent without a meeting of
Parent's stockholders.
(d) No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement by Parent
and Merger Sub do not, and the performance of their respective obligations
hereunder and the consummation of the Transactions by them will not, (A)
conflict with or violate their respective Certificates of Incorporation, Bylaws
or equivalent organizational documents; (B) subject to compliance with the
requirements set forth in Section 4.2(d)(ii), conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to Parent or Merger Sub
or by which their respective properties are bound or affected; or (C) result in
any breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or alter the
22
rights or obligations of any third party or of Parent or Merger Sub under, or
give to others any rights of termination, amendment, acceleration, increased
payments or cancellation of, or result in the creation of a lien or other
encumbrance on any of the properties or assets of Parent or Merger Sub pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which any of them is a
party or by which any of them or any of their respective properties are bound or
affected, except in the cases of clauses (B) and (C) above, for any such
conflicts, violations, breaches, defaults or other alterations or occurrences
that would not prevent or delay consummation of the Merger in any material
respect, or otherwise prevent Parent or Merger Sub from performing their
respective obligations under this Agreement in any material respect, and would
not have, individually or in the aggregate, a Parent Material Adverse Effect.
There are no material consents, waivers, and approvals under any agreements,
contracts, licenses or leases required to be obtained by Parent or Merger Sub in
connection with entering into of this Agreement or the consummation of the
Transactions.
(ii) The execution and delivery of this Agreement by Parent
and Merger Sub do not, and the performance of their respective obligations
hereunder and the consummation of the Transactions by them will not, require any
consent, approval, authorization or permit of, or registration or filing with or
notification to, any Governmental Entity, except (A) the filing of documents to
satisfy the applicable requirements, if any, of the Exchange Act or state
takeover laws, (B) the filing, and effectiveness of the Form S-4, including the
Proxy and Information Statement/Prospectus in definitive form relating to the
Transactions, (C) the filing of the Articles of Merger with the Washington
Secretary and appropriate corresponding documents with the Secretary of State of
other states in which the Company is qualified to transact business as a foreign
corporation, (D) filings under the rules and regulations of the NASD, and (E)
where the failure to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications (1) would not prevent or delay
consummation of the Merger in any material respect or otherwise prevent or delay
in any material respect Parent and Merger Sub from performing their obligations
under this Agreement or (2) would not, individually or in the aggregate, have a
Parent Material Adverse Effect.
(e) Compliance with Laws. Except as set forth in Section 4.2(e) of the
Parent Disclosure Letter, neither Parent nor any of its subsidiaries is in
conflict with, or in default or violation of (i) any law, rule, regulation,
order, judgment or decree applicable to Parent or any of its subsidiaries or by
which any of their respective properties is bound, or (ii) whether after the
giving of notice or passage of time or both, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent or any of its subsidiaries is a party
or by which Parent or any of its subsidiaries or any of their respective
properties is bound, except for any such conflicts, defaults or violations which
do not and would not have, individually or in the aggregate, a Parent Material
Adverse Effect.
(f) SEC Filings; Financial Statements.
(i) Parent has made available to the Company a correct and
complete copy of each report, schedule, registration statement and definitive
proxy statement filed by
23
Parent with the SEC on or after January 1, 2002 and prior to the date of this
Agreement (the "Parent SEC Reports"), which are all the forms, reports and
documents required to be filed by Parent with the SEC since such date; provided
that, if Parent amends any of the Parent SEC Reports, such amendment shall not
mean or imply that any representation or warranty in this Agreement was not true
when made or became untrue thereafter. As of their respective dates, the Parent
SEC Reports (A) complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable thereto, and (B) did not at the
time they were filed (or if amended or superseded by a filing prior to the date
of this Agreement then on the date of such filing) contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements made, in light of the circumstances under which they were made,
not misleading, provided, however, that no representation is made with respect
to information included in the Parent SEC Reports that was provided in writing
by the Company.
(ii) Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the Parent SEC
Reports complied as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, had been prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of the unaudited statements, as permitted by
Form 10-Q or the Exchange Act regulations promulgated by the SEC) and each
fairly presented the consolidated financial position of Parent and its
consolidated subsidiaries in all material respects as at the respective dates
thereof and the consolidated results of its operations and cash flows for the
periods indicated (subject, in the case of the unaudited interim financial
statements, to normal audit adjustments which were not and are not expected,
individually or in the aggregate, to be material in amount).
(g) Registration Statement; Proxy and Information Statement/
Prospectus. None of the information supplied or to be supplied by Parent in
writing specifically for inclusion or incorporation by reference in (i) the Form
S-4 in connection with the issuance of the Parent Common Stock in or as a result
of the Merger will, at the time the Form S-4 is filed with the SEC and at the
time the Form S-4 becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading; and (ii)
the Proxy and Information Statement/Prospectus will, at the date the Proxy and
Information Statement/Prospectus is mailed to the stockholders of the Company
and the stockholders of Parent and as of the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, Parent makes no representation or warranty with
respect to any information provided by or required to be provided by the Company
and/or by its auditors, legal counsel, financial advisors or other consultants
or advisors specifically for use in the Form S-4 or the Proxy and Information
Statement/Prospectus. The Form S-4 and the Proxy and Information
Statement/Prospectus will
24
comply as to form in all material respects with the provisions of the Securities
Act and the Exchange Act, respectively, and the rules and regulations
promulgated by the SEC thereunder.
(h) Brokers. Other than Xxxxx & Company Incorporated (the "Parent
Banker"), no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the Merger and the other
Transactions based upon arrangements made by or on behalf of Parent or Merger
Sub.
(i) Interim Operations of Merger Sub. Merger Sub is a direct wholly
owned subsidiary of Parent. Merger Sub was formed solely for the purpose of
engaging in the Merger and the Transactions, has engaged in no other business
activities and has conducted its operations only as contemplated hereby.
(j) Tax Matters. Neither Parent nor any of its affiliates has taken or
agreed to take any action that would prevent the Merger from constituting a
reorganization qualifying under the provisions of Section 368(a) of the Code.
(k) Litigation. Except as disclosed in the Parent SEC Reports or
Section 4.2(k) of the Parent Disclosure Letter, there are no claims, actions,
suits, investigations or proceedings pending or, to the knowledge of Parent,
threatened against Parent or any of its subsidiaries, before any court,
arbitrator or administrative, governmental or regulatory authority or body,
domestic or foreign, that, individually or in the aggregate, would, or would
reasonably be anticipated to, have a Parent Material Adverse Effect.
(l) Ownership of Company Common Stock. As of the date hereof, Parent
owns directly 1,873,630 shares of Company Common Stock and 69,002,382 shares of
Company Class B Common Stock. No subsidiary of Parent, including Merger Sub,
owns any shares of Company Stock.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Information and Access. (a) From the date of this Agreement and
continuing until the Effective Time, Parent, as to itself, and Merger Sub, on
the one hand, and the Company, as to itself and its subsidiaries, on the other
hand, each agrees that it shall afford and, with respect to clause (b) below,
shall cause its independent auditors to afford, (a) to the officers, independent
auditors, counsel and other representatives of the other reasonable access, upon
reasonable advance notice, to its (and in the case of Parent, Merger Sub's, and
in the case of the Company, its subsidiaries') properties, books, records
(including tax returns filed and those in preparation) and executives and
personnel in order that the other may have a full opportunity to make such
investigation as it reasonably desires to make of the other consistent with
their rights under this Agreement, and (b) to the independent auditors of the
other, reasonable access to the audit work papers and other records of its
independent auditors. No investigation pursuant to this Section 5.1 shall affect
or otherwise obviate or diminish any representations and warranties
25
of any party or conditions to the obligations of any party. No party shall be
required to provide access to or to disclose information where such access or
disclosure would violate or prejudice the rights of its customers, jeopardize
the attorney-client privilege or the institution in possession or control of
such information or contravene any law, rule, regulations, order, judgment,
decree, fiduciary duty or binding agreement entered into prior to the date of
this Agreement. The parties hereto will make appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding
sentence apply.
(b) Each of the parties hereto shall hold all information furnished by
or on behalf of any other party or its representatives pursuant to Section
5.1(a) in confidence in accordance with the provisions of the non-disclosure
agreement, dated June 1, 2001, as amended, between Parent and the Company.
5.2 Conduct of Business of the Company. Except as contemplated by this
Agreement (including Section 5.2 of the Company Disclosure Letter) or with
respect to Approved Matters, during the period from the date of this Agreement
and continuing until the Effective Time or until the termination of this
Agreement pursuant to Section 7.1, (a) the Company and its subsidiaries shall
conduct their respective businesses in the ordinary and usual course consistent
with past practice, including, without limitation, consulting with, advising and
obtaining the approval of Parent, in each case consistent with past practice,
and (b) without limiting the provisions of clause (a) in this paragraph, neither
the Company nor any of its subsidiaries shall without the prior written consent
of Parent (or, to the extent consistent with past practice with regard to the
matter at issue, the prior oral consent of Parent):
(a) declare, set aside or pay any dividends on or make any other
distribution in respect of any of its capital stock, except dividends or
distributions declared and paid by a wholly owned subsidiary of the Company only
to the Company or another wholly owned subsidiary of the Company;
(b) split, combine or reclassify any of its capital stock or issue or
authorize or propose the issuance or authorization of any other securities in
respect of, in lieu of, or in substitution for shares of its capital stock or
repurchase, redeem or otherwise acquire any shares of its capital stock;
(c) issue, deliver, pledge, encumber or sell, or authorize or propose
the issuance, delivery, pledge, encumbrance or sale of, or purchase or propose
the purchase of, any shares of its capital stock or securities convertible into,
or rights, warrants or options to acquire, any such shares of capital stock or
other convertible securities (other than the issuance of such capital stock to
the Company or a wholly owned subsidiary of the Company, or upon the exercise or
conversion of outstanding options or warrants in accordance with a Company Stock
Plan in effect on the date of this Agreement or other convertible or
exchangeable securities outstanding on the date hereof, in each case in
accordance with its present terms, or issuances of employee stock options in the
ordinary course of business, consistent with past practice and consistent with
operating practices currently in place between the Company and Parent),
authorize or propose any change in its equity capitalization, or amend any of
the financial or
26
other economic terms of such securities or the financial or other economic terms
of any agreement relating to such securities;
(d) amend its Articles of Incorporation, Bylaws or other
organizational documents in any manner;
(e) take any action that would reasonably be expected to result in any
of the conditions to the Transactions set forth in Article VI not being
satisfied;
(f) merge or consolidate with any other person, or acquire any assets
or capital stock of any other person, other than acquisitions of assets in the
ordinary course of business, such as for inventory or relating to the ordinary
operations of the Company;
(g) incur any indebtedness for money borrowed or guarantee any such
indebtedness of another person or increase indebtedness for money borrowed
outstanding under any current agreement relating to indebtedness for money
borrowed, except as disclosed on Section 5.2 of the Company Disclosure Letter or
in the ordinary course of business;
(h) make or authorize any capital expenditures of the Company and its
subsidiaries taken as a whole, other than capital expenditures permitted
pursuant to Section 5.2 of the Company Disclosure Letter, that are part of the
Company's then existing budget, which has previously been approved by the
Company and Parent in the ordinary course, or in the ordinary course of
business, consistent with past practice and consistent with operating practices
currently in place between the Company and Parent;
(i) except as may be required by changes in applicable law or GAAP,
change any method, practice or principle of accounting, or change in any
material respect its methods of reporting income and deductions for United
States federal income tax purposes from those employed in the preparation of its
federal income tax returns for the year ended December 31, 2001, except as
required by changes in law or regulation;
(j) enter into any new employment agreements, or increase the
compensation of any officer or director of the Company or any senior executive
of any of its subsidiaries or operating units (including entering into any
bonus, severance, change of control, termination, reduction-in-force or
consulting agreement or other employee benefits arrangement or agreement
pursuant to which such person has the right to any form of compensation from the
Company or any of its subsidiaries), other than as required by law or by written
agreements in effect on the date hereof with such person, or in the ordinary
course of business, consistent with past practice and consistent with operating
practices currently in place between the Company and Parent, or otherwise amend
in any material respect any existing agreements with any such person other than
in the ordinary course of business, consistent with past practice and consistent
with operating practices currently in place between the Company and Parent, or
use its discretion to amend any Company Benefit Plan or accelerate the vesting
or any payment under any Company Benefit Plan;
27
(k) enter into any transaction with any current or former officer or
director of the Company or any senior executive of any of its subsidiaries or
operating units, other than as provided for in the terms of any agreement in
effect on or prior to the date hereof and described in the Company Disclosure
Letter;
(l) settle or otherwise compromise any material litigation,
arbitration or other judicial or administrative dispute or proceeding relating
to the Company or any of its subsidiaries; or
(m) authorize or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing.
5.3 Conduct of Business of Parent. Except as contemplated by this
Agreement (including the Parent Disclosure Letter), and agreements described in
the Parent Proxy Statement or any Parent SEC Report, during the period from the
date of this Agreement and continuing until the Effective Time or until the
termination of this Agreement pursuant to Section 7.1, Parent shall not, without
the prior written consent of the Company, take any action that would reasonably
be expected to result in any of the conditions to the Transactions set forth in
Article VI not being satisfied.
5.4 Preparation of Form S-4, Proxy and Information Statement/
Prospectus; Other Filings. In order to satisfy the timing considerations with
respect to the Company Stockholders Meeting set forth in Section 5.5, Parent and
the Company shall cooperate in preparing and cause to be filed with the SEC a
proxy statement relating to the Company Stockholders Meeting and an information
statement relating to the actions taken by written consent by Parent's
stockholders to approve this Agreement and the Transactions (as amended or
supplemented from time to time, the "Proxy and Information
Statement/Prospectus"), and Parent and the Company shall cooperate in preparing
and Parent shall cause to be filed with the SEC the Form S-4. The Proxy and
Information Statement/Prospectus will be included in the S-4 as a prospectus in
and will constitute a part of the Form S-4. Each of Parent and the Company shall
use its reasonable best efforts to respond to any comments of the SEC, to have
the Form S-4 declared effective under the Securities Act as promptly as
practicable after such filing and to cause the Proxy and Information
Statement/Prospectus in definitive form to be mailed to the Parent's and
Company's respective stockholders sufficiently in advance of the Company
Stockholders Meeting. At the option of Parent, Parent may include as part of the
Proxy and Information Statement/Prospectus notice of action taken by the written
consent of stockholders relating to an amendment to the Parent's Certificate of
Incorporation as described in Section 5.4 of the Parent Disclosure Letter. As
promptly as practicable after the date of this Agreement, Parent and the Company
shall prepare and file any other filings required under the Exchange Act, the
Securities Act or any other federal laws relating to the Transactions (the
"Other Filings"). Each of the Company and Parent will notify the other party
promptly of the receipt of any comments, whether oral or written, from the SEC
or its staff and of any request by the SEC or its staff or any other government
officials for amendments or supplements to the Form S-4 or the Proxy and
Information Statement/Prospectus or any Other Filing or for additional
information, and will supply the other party with copies of all correspondence
between it or any
28
of its representatives, on the one hand, and the SEC, or its staff or any other
government officials, on the other hand, with respect to the Form S-4, the Proxy
and Information Statement/Prospectus or the Merger. No amendment or supplement
to the Form S-4 or Proxy and Information Statement/Prospectus will be made by
the Company or Parent without the prior approval of the other party, except as
required by applicable laws and then only to the extent necessary, or without
providing the other party the opportunity to review and comment thereon. Parent
shall advise the Company promptly after it receives notice thereof, of the time
when the Form S-4 has been declared effective, the issuance of any stop order,
or the suspension of the qualification of Parent Common Stock issuable in
connection with the Merger for offering or sale in any jurisdiction. If, at any
time prior to the Effective Time, any information relating to the Company or
Parent, or any of their respective affiliates, officers or directors should be
discovered by the Company or Parent which should be set forth in an amendment or
supplement to the Form S-4, the Proxy and Information Statement/Prospectus or
any Other Filing so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or an event occurs which is required to be set forth in an
amendment or supplement to the Form S-4, the Proxy and Information
Statement/Prospectus or any Other Filing, the party that discovers such
information shall promptly notify the other party and an amendment or supplement
describing such information shall be promptly filed with the SEC and, to the
extent required by law, disseminated to the Company's stockholders and/or
Parent's stockholders, as applicable. The Proxy and Information
Statement/Prospectus shall include, subject to applicable fiduciary duties
(based on advice of outside counsel to the Special Committee), the
recommendations of the Board of Directors of the Company in favor of approval of
this Agreement and the Transactions; provided that the Board of Directors of the
Company will not recommend approval of this Agreement and the Transactions
without the approval of the Special Committee. The Company and Parent each shall
promptly provide the other (or its counsel) copies of all filings made by it
with any Governmental Entity in connection with this Agreement and the
Transactions.
5.5 Company Stockholder Approval.
(a) The Company shall duly take all lawful action to call, give notice
of, convene and hold a meeting of the Company's stockholders (the "Company
Stockholders Meeting") on August 1, 2003 or such earlier date as is agreed to by
the parties, for the purpose of obtaining the Company Stockholder Approval and
shall take all lawful action to solicit the Company Stockholder Approval.
Subject to the third to last sentence in Section 5.4, the Board of Directors of
the Company shall recommend the adoption of the plan of merger contained in this
Agreement by the Company stockholders to the effect as set forth in Section
4.1(c)(ii) (the "Company Recommendation"), and, subject to the third to last
sentence in Section 5.4, shall not (i) withdraw, modify or qualify (or propose
to withdraw, modify or qualify) in any manner adverse to Parent the Company
Recommendation or (ii) take any action or make any statement in connection with
the Company Stockholders Meeting inconsistent with the Company Recommendation
(collectively, a "Change in the Company Recommendation"). Notwithstanding
anything to the contrary herein, this Agreement shall be submitted to the
Company stockholders at the Company Stockholders Meeting for the purpose of
obtaining the
29
Company Stockholder Approval, and nothing contained herein shall be deemed to
relieve the Company of such obligation.
(b) Parent agrees that at the Company Stockholders Meeting, Parent
shall (i) appear, in person or by proxy, so that all shares of the Company owned
directly or indirectly by it are counted for the purpose of obtaining a quorum
at the Company Stockholders Meeting, and at any adjournment or adjournments
thereof, and (ii) vote, in person or by proxy, with respect to all such shares
of the Company owned directly or indirectly by it to adopt the Agreement as
approved by the Board of Directors of the Company. If this Agreement is
subsequently amended and such amendment is approved by the Board of Directors of
Parent and the Company or if a subsequent consent is deemed necessary to
consummate the Transactions contemplated by this Agreement, then Parent shall as
soon thereafter as practicable either at a meeting of the Company's stockholders
at which any proposal to adopt this Agreement, as amended, is proposed, cause
all shares of Company Stock owned directly or indirectly by it on the date
hereof (i) to appear, in person or by proxy, so that all such shares are counted
for the purpose of obtaining a quorum at any such meeting of stockholders of the
Company, and at any adjournment or adjournments thereof, and (ii) to vote, in
person or by proxy, with respect to such shares to adopt this Agreement, as
amended. Parent shall cause all shares of Company Stock owned directly or
indirectly by it on the date hereof to vote against any proposal that is
contrary to the adoption of this Agreement and the Transactions contemplated
hereby.
5.6 Agreements to Take Reasonable Action.
(a) The parties shall take, and shall cause their respective
subsidiaries to take, all reasonable actions necessary to comply promptly with
all legal requirements which may be imposed on them with respect to the Merger
and shall take all reasonable actions necessary to cooperate promptly with and
furnish information to the other parties in connection with any such
requirements imposed upon them or any of their subsidiaries in connection with
the Merger. Each party shall take, and shall cause its subsidiaries to take, all
reasonable actions necessary (i) to obtain (and will take all reasonable actions
necessary to promptly cooperate with the other parties in obtaining) any
clearance, consent, authorization, order or approval of, or any exemption by,
any Governmental Entity, or other third party, required to be obtained or made
by it (or by the other parties or any of their respective subsidiaries) in
connection with the Transactions or the taking of any action contemplated by
this Agreement; (ii) to lift, rescind or mitigate the effect of any injunction
or restraining order or other order adversely affecting its ability to
consummate the Transactions; (iii) to fulfill all conditions applicable to the
parties pursuant to this Agreement; (iv) to prevent, with respect to a
threatened or pending temporary, preliminary or permanent injunction or other
order, decree or ruling or statute, rule, regulation or executive order, the
entry, enactment or promulgation thereof, as the case may be; (v) to defend any
lawsuit or other legal proceeding, whether judicial or administrative,
challenging the Agreement, the consummation of the Transactions or the terms
thereof; and (vi) to execute and deliver any additional agreements or
instruments necessary to consummate the Transactions and fully carry out the
purposes of the Agreement provided, however, that with respect to clauses (i)
through (vi) above, the parties will take only such curative measures (such as
licensing and divestiture) as the parties determine to be reasonable.
30
(b) Subject to the terms and conditions of this Agreement, each of the
parties shall use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
as promptly as practicable the Merger and the Transactions, subject to the
appropriate approval of the stockholders of the Company.
5.7 Consents. Parent and the Company shall each use all reasonable
efforts to obtain the consent and approval of, or effect the notification of or
filing with, each person or authority whose consent or approval is required in
order to permit the consummation of the Merger and the Transactions and to
enable Parent and the Surviving Corporation to conduct and operate the business
of Parent and the Company and their respective subsidiaries, substantially as
presently conducted and as contemplated to be conducted.
5.8 Nasdaq Quotation. Parent shall use its reasonable best efforts to
cause the shares of Parent Common Stock issuable to the stockholders of the
Company in the Merger (including the shares of Parent Common Stock reserved for
issuance with respect to Company Stock Options and Company Stock-Based Awards)
to be eligible for quotation on Nasdaq (or other national market or exchange on
which Parent Common Stock is then traded or quoted) prior to the Effective Time.
5.9 Affiliates. At least ten Business Days prior to the anticipated
Closing Date, the Company shall deliver to Parent a list of names and addresses
of those persons who, in the judgment of the Company, may be deemed at the time
this Agreement is submitted for Company Stockholder Approval, "affiliates" of
the Company within the meaning of Rule 145 under the Securities Act and
applicable rules and regulations. The Company shall use its reasonable best
efforts to deliver or cause to be delivered to Parent, prior to the Effective
Time, from each of the affiliates of the Company identified in the foregoing
list, agreements substantially in the form attached to this Agreement as Exhibit
B.
5.10 Indemnification. (a) Parent shall maintain in effect for the
benefit of individuals who at or prior to the Effective Time were directors or
officers of the Company the current provisions regarding indemnification and
exculpation of officers and directors (including with respect to advancement of
expenses) contained in the Articles of Incorporation and Bylaws of the Company
on the date hereof, which provisions shall not be amended, modified or otherwise
repealed for a period of six (6) years from the Effective Time in any manner
that would adversely affect the rights thereunder as of the Effective Time of
such individuals, unless such modification is required after the Effective Time
by applicable law and then only to the minimum extent required by such
applicable law or except to make changes permitted by applicable law that would
enlarge the exculpation or rights of indemnification thereunder; provided,
however, that if any claims are asserted or made within such six-year period,
all rights to indemnification (and to advancement of expenses) hereunder in
respect of such claims shall continue, without diminution, until disposition of
all such claims.
(b) The Surviving Corporation shall (and Parent shall cause the
Surviving Corporation to), to the maximum extent permitted under applicable law,
provide to the current
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directors and officers of the Company the maximum indemnification protection
(including with respect to advancement of expenses, including advancing expenses
as incurred) permitted under the WBCA, for a period of six (6) years after the
Effective Time; provided, however, that if any claims are asserted or made
within such six-year period, all rights to indemnification (and to advancement
of expenses) hereunder in respect of such claims shall continue, without
diminution, until disposition of all such claims.
(c) The Surviving Corporation shall (and Parent shall cause the
Surviving Corporation to) assume, honor and fulfill in all respects the
obligations of the Company pursuant to any indemnification agreements, including
those contained in employment agreements (the employee parties under such
agreements being referred to as the "Covered Persons") with the Company's
directors, officers and other employees (if any) existing at the Effective Time.
In addition, Parent shall provide, or cause the Surviving Corporation to
provide, for a period of not less than six (6) years after the Effective Time,
the Company's current and former directors and officers who are currently
covered by the Company's existing insurance and indemnification policy with an
insurance and indemnification policy (including, without limitation, by
arranging for run-off coverage, if necessary) that provides coverage for events
occurring at or prior to the Effective Time (the "D&O Insurance") that is no
less favorable than the existing policy (it being acknowledged and understood
that the Company currently indemnifies its officers and directors for claims to
the extent permitted under the WBCA and pays its obligations thereunder out of
its assets and maintains D&O Insurance solely for claims not so indemnifiable or
for which the Company's assets are insufficient to cover), or, if substantially
equivalent insurance coverage is unavailable, the most advantageous D&O
Insurance obtainable for an annual premium equal to 200% of the annual premium
currently in place for the Company for such insurance; provided, however, that
Parent and the Surviving Corporation shall not be required to pay an annual
premium for the D&O Insurance in excess of 200% of the annual premium currently
in place for the Company for such insurance, calculated on the basis of a fair
allocation of the portion of such premium if Parent arranges such coverage on a
group basis.
(d) This Section 5.10 shall survive the Effective Time, is intended to
benefit the Surviving Corporation and the Covered Persons and shall be
enforceable by the Covered Persons, their heirs, assigns and 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. In the event Parent, the Surviving Corporation or any of their
respective successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or entity of
such consolidation or merger, or (ii) transfers or conveys all or substantially
all of its properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors and assigns of such party,
shall assume the obligations set forth in this Section 5.10.
5.11 Notification of Certain Matters. Each of the Company and Parent
shall give prompt notice to the other such party of the occurrence, or failure
to occur, of any event, which occurrence or failure to occur would be likely to
cause (a) any representation or warranty contained in this Agreement to be
untrue or inaccurate in any material respect at any time from the date of this
Agreement to the Effective Time, or (b) any material failure of the Company or
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Parent, as the case may be, or of any officer, director, employee or agent
thereof, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement. Notwithstanding the
foregoing, the delivery of any notice pursuant to this Section 5.11 shall not
limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
5.12 Employee Arrangements. From and after the Effective Time, Parent
shall cause the Surviving Corporation to fulfill all written employment,
severance, termination, consulting and retirement agreements and severance
plans, as in effect on the date hereof, to which the Company or any of its
subsidiaries is a party, pursuant to the terms thereof and applicable law.
5.13 Reorganization. From and after the date hereof, each of Parent
and the Company and each of their respective subsidiaries shall not, and shall
use reasonable efforts to cause their affiliates not to, take any action, or
fail to take any action, which action or failure to act would jeopardize
qualification of the Merger as a reorganization within the meaning of Section
368(a) of the Code or enter into any contract, agreement, commitment or
arrangement that would have such effect. Each of Parent and the Company and each
of their respective subsidiaries shall use reasonable efforts to obtain the
opinions of counsel referred to in Sections 6.2(c) and 6.3(c), including the
execution of the officers' certificates referred to therein.
5.14 Public Announcements. The initial press release relating to the
Transactions shall be a joint press release, to be agreed upon by the Parent and
the Company. Thereafter, Parent and the Company shall use their reasonable best
efforts to consult with each other before issuing any press release with respect
to this Agreement or the Transactions.
5.15 Stockholder Litigation. Each of the Company and the Parent shall
give the other the reasonable opportunity to participate in the defense of any
stockholder litigation against the Company or the Parent and their respective
directors and officers, as applicable, relating to the Transactions or this
Agreement.
5.16 Section 16b-3. Parent and the Company shall take all reasonable
steps to cause the transactions contemplated by Article III and any other
disposition of equity securities of the Company or Parent (including derivative
securities) or acquisitions of equity securities of Parent by each individual
who (a) is a director or officer of the Company or Parent, or (b) at the
Effective Time will become a director or officer of Parent, to be exempt under
Rule 16b-3 promulgated under the Exchange Act.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger are subject to the
satisfaction prior to the Closing Date of the following conditions:
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(a) Mailing of Proxy and Information Statement/Prospectus and
Stockholder Approval. Twenty (20) Business Days shall have elapsed from the
commencement of mailing of the Proxy and Information Statement/Prospectus to the
Company's and Parent's stockholders, and the Company Stockholder Approval shall
have been obtained.
(b) Effectiveness of the Form S-4. The Form S-4 shall have been
declared effective by the SEC under the Securities Act and shall not be the
subject of any stop order or proceeding by the SEC seeking a stop order.
(c) Governmental Entity Approvals. All material authorizations,
consents, orders or approvals of, or declarations or filings with, or expiration
of waiting periods imposed by, any Governmental Entity, if any, necessary for
the consummation of the Merger shall have been filed, expired or been obtained,
other than those that, individually or in the aggregate, the failure to be
filed, expired or obtained would not reasonably be expected to have a Parent
Material Adverse Effect or a Company Material Adverse Effect.
(d) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect, nor shall any proceeding brought
by a Governmental Entity be pending which would reasonably be expected to
restrain or prohibit the consummation of the Merger; and there shall not be any
action taken, or any statute, rule, regulation or order (whether temporary,
preliminary or permanent) enacted, entered or enforced which makes the
consummation of the Merger illegal or prevents or prohibits the Merger.
(e) Nasdaq Quotation. The shares of Parent Common Stock issuable to
the holders of Company Common Stock pursuant to the Merger (including the shares
of Parent Common Stock reserved for issuance with respect to Company Stock
Options and Company Stock-Based Awards) shall have been authorized for quotation
on Nasdaq (or other national market or exchange on which Parent Common Stock is
then traded or quoted), upon official notice of issuance.
6.2 Conditions of Obligations of Parent and Merger Sub. The
obligations of Parent and Merger Sub to effect the Merger are subject to the
satisfaction of the following additional conditions, unless waived in writing by
Parent:
(a) Representations and Warranties. (i) The representations and
warranties of the Company set forth in Sections 4.1(g) shall be true and correct
as of the Closing Date as if made on such date, (ii) the representations and
warranties of the Company set forth in Section 4.1(b) shall be true and correct
as of the Closing Date as if made on such date (except for inaccuracies that are
not significant in amount), and (iii) except to the extent that the failure of
the representations and warranties of the Company set forth in this Agreement to
be true and correct, in the aggregate, would not have a Company Material Adverse
Effect, the representations and warranties of the Company made in this
Agreement, without regard to any materiality or "Material Adverse Effect"
qualification therein, shall be true and correct as of the
34
date hereof, and (iii) Parent shall have received a certificate signed by a
senior executive officer of the Company certifying the fulfillment of the
conditions set forth in clauses (i) through and including (iii) of this Section
6.2(a).
(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all of its obligations and covenants, taken
as a whole, required to be performed by it under this Agreement prior to or as
of the Closing Date, and Parent shall have received a certificate to such effect
signed by a senior executive officer of the Company.
(c) Tax Opinion. Parent shall have received from Wachtell, Lipton,
Xxxxx & Xxxx, counsel to Parent, a written opinion dated the Closing Date to the
effect that for U.S. federal income tax purposes the Merger will constitute a
"reorganization" within the meaning of Section 368(a) of the Code. In rendering
such opinion, counsel to Parent shall be entitled to rely upon customary
assumptions and representations reasonably satisfactory to such counsel,
including representations set forth in certificates of officers of Parent and
the Company.
6.3 Conditions of Obligations of the Company. The obligation of the
Company to effect the Merger is subject to the satisfaction of the following
conditions, unless waived in writing by the Company:
(a) Representations and Warranties. (i) The representations and
warranties of Parent set forth in Section 4.2(g) shall be true and correct as of
the Closing Date as if made on such date, (ii) the representations and
warranties of Parent set forth in Section 4.1(b) shall be true and correct as of
the date hereof (except for inaccuracies that are not significant in amount),
(iii) except to the extent that the failure of the representations and
warranties of Parent set forth in this Agreement to be true and correct, in the
aggregate, would not have a Parent Material Adverse Effect, the representations
and warranties of Parent made in this Agreement, without regard to any
materiality or "Material Adverse Effect" qualification therein, shall be true
and correct as of the date hereof, and (iv) the Company shall have received a
certificate signed by a senior executive officer of Parent certifying the
fulfillment of the conditions set forth in clauses (i) through and including
(iii) of this Section 6.2(a).
(b) Performance of Obligations of Parent and Merger Sub. Parent and
Merger Sub shall have performed in all material respects all of their respective
obligations and covenants, taken as a whole, required to be performed by such
parties under this Agreement prior to or as of the Closing Date, and the Company
shall have received certificates to such effect signed by a senior executive
officer of Parent.
(c) Tax Opinion. The Company shall have received from Shearman &
Sterling, special counsel to the Company, a written opinion dated the Closing
Date to the effect that for U.S. federal income tax purposes the Merger will
constitute a "reorganization" within the meaning of Section 368(a) of the Code.
In rendering such opinion, counsel to the Company shall be entitled to rely upon
customary assumptions and representations reasonably satisfactory to such
counsel, including representations set forth in certificates of officers of
Parent and the Company.
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ARTICLE VII
TERMINATION
7.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time, whether before or after approval of the Merger by the
stockholders of the Company and Parent:
(a) by mutual written consent duly authorized by the Boards of
Directors of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been
consummated by October 15, 2003 (provided, that the right to terminate this
Agreement under this Section 7.1(b) shall not be available to any party whose
action or failure to act has been the cause of or resulted in the failure of the
Merger to occur on or before such date and such action or failure to act
constitutes a breach of this Agreement);
(c) by either Parent or the Company, if a court of competent
jurisdiction or other Governmental Entity shall have issued an order, decree or
ruling or taken any other action, in any case having the effect of permanently
restraining, enjoining or otherwise prohibiting the Merger, which order, decree
or ruling is final and nonappealable;
(d) by the Company, upon a breach of any representation, warranty,
covenant or agreement on the part of Parent set forth in this Agreement such
that the conditions set forth in Section 6.3(a) or Section 6.3(b) shall have
become incapable of fulfillment and such breach shall not have been waived by
the Company; or
(e) by Parent, upon a breach of any representation, warranty, covenant
or agreement on the part of the Company set forth in this Agreement such that
the conditions set forth in Section 6.2(a) or Section 6.2(b) shall have become
incapable of fulfillment and such breach shall not have been waived by Parent.
7.2 Effect of Termination. In the event of the termination of this
Agreement as provided in Section 7.1, this Agreement shall be of no further
force or effect, except (a) as set forth in Section 5.1(b), 5.14 (solely with
respect to any press release announcing the termination of this Agreement), this
Section 7.2, Section 7.3, and Article VIII, each of which shall survive the
termination of this Agreement, and (b) nothing herein shall relieve any party
from liability for any breach of this Agreement.
7.3 Fees and Expenses. All fees and expenses incurred in connection
with this Agreement and the Merger shall be paid by the party incurring such
expenses, whether or not the Merger is consummated. The Company is permitted to
and shall pay the fees and expenses of their financial, legal and other advisors
on the Closing Date.
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ARTICLE VIII
GENERAL PROVISIONS
8.1 Amendment. This Agreement (including the Exhibits and Disclosure
Letters hereto) may be amended prior to the Effective Time by Parent and the
Company at any time before or after approval of the Merger by the stockholders
of the Company and Parent, provided, however, that after any such approval, no
amendment shall be made which by law requires further approval by such
stockholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties.
8.2 Extension; Waiver. At any time prior to the Effective Time
(whether before or after approval of the stockholders of the Company and
Parent), Parent and the Company may (a) extend the time for the performance of
any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement and (c) waive compliance
with any of the agreements or conditions contained in this Agreement. Any
extension or waiver on behalf of the Company shall be taken only upon the
approval of the Special Committee. 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.
8.3 Nonsurvival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument or certificate delivered pursuant to this Agreement shall not survive
the Merger, except for the agreements contained in Article III (Conversion of
Securities), Section 5.10 (Indemnification), 5.12 (Employee Arrangements) and
5.13 (Reorganization), each of which shall survive the Merger.
8.4 Entire Agreement. This Agreement (including the Exhibits and
Disclosure Letters hereto) contains the entire agreement among all of the
parties with respect to the subject matter hereof and supersedes all prior
arrangements and understandings, both written and oral, with respect thereto,
but shall not supersede any agreements among any group of the parties hereto
entered into on or after the date hereof.
8.5 Severability. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this Agreement would be
held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
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8.6 Notices. All notices and other communications pursuant to this
Agreement shall be in writing and shall be deemed to be sufficient if contained
in a written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally recognized, overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Parent or Merger Sub, to:
USA Interactive
Carnegie Hall Tower
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopier: 000-000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
(b) if to the Company, to:
Expedia, Inc.
00000 XX Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
All such notices and other communications shall be deemed to have been received
(a) in the case of personal delivery, on the date of such delivery, (b) in the
case of a telecopy, when the party receiving such telecopy shall have confirmed
receipt of the communication, (c) in the case of
38
delivery by nationally recognized overnight courier, on the Business Day
following dispatch and (d) in the case of mailing, on the third Business Day
following such mailing.
8.7 Headings; Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. As used in this Agreement, "subsidiary" with
respect to any person shall mean any affiliate controlled by such person,
directly or indirectly through one or more intermediaries, provided that under
no circumstances shall the Company and its subsidiaries be deemed to be
subsidiaries of Parent.
8.8 Counterparts. This Agreement may be executed in one or more
counterparts, 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, it being understood that all
parties need not sign the same counterpart.
8.9 Benefits; Assignment. This Agreement is not intended to confer
upon any person other than the parties any rights or remedies hereunder and
shall not be assigned by operation of law or otherwise; provided, however, that
(a) the officers and directors of the Company are intended beneficiaries of the
covenants and agreements contained in Section 5.10, and (b) the Special
Committee is the intended beneficiary of the agreement contained in Section
8.11.
8.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed therein, without giving effect to laws that might
otherwise govern under applicable principles of conflicts of law.
8.11 Special Committee. Prior to the Effective Time, any
determination to be made, or action to be taken, by the Company under this
Agreement shall be made or taken only upon the approval of the Special
Committee.
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IN WITNESS WHEREOF, Parent, the Company and Merger Sub have caused
this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
USA INTERACTIVE
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
EXPEDIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
EQUINOX MERGER CORP.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
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