EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
dated as of
November 3, 2002
among
INDUSTRI-MATEMATIK
INTERNATIONAL CORP.
STG
and
STG OMS ACQUISITION CORP.
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions ..................................... 1
ARTICLE 2
THE OFFER
Section 2.01. The Offer ....................................... 6
Section 2.02. Company Action .................................. 7
Section 2.03. Directors ....................................... 8
ARTICLE 3
THE MERGER
Section 3.01. The Merger ..................................... 10
Section 3.02. Conversion of Shares ........................... 10
Section 3.03. Surrender and Payment .......................... 11
Section 3.04. Dissenting Shares .............................. 12
Section 3.05. Stock Options .................................. 13
Section 3.06. Adjustments .................................... 13
Section 3.07. Withholding Rights ............................. 13
Section 3.08. Lost Certificates .............................. 13
ARTICLE 4
THE SURVIVING CORPORATION
Section 4.01 . Certificate of Incorporation ................... 14
Section 4.02. Bylaws ......................................... 14
Section 4.03. Directors and Officers ......................... 14
Section 4.04. Charter And Bylaws Provisions .................. 14
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 5.01. Corporate Existence and Power ................. 14
Section 5.02. Corporate Authorization ....................... 15
Section 5.03. Governmental Authorization .................... 15
Section 5.04. Non-contravention ............................. 15
Section 5.05. Capitalization ................................ 16
Section 5.06. Subsidiaries .................................. 17
Section 5.07. SEC Filings ................................... 17
Section 5.08. Financial Statements .......................... 18
Section 5.09. Disclosure Documents .......................... 18
Section 5.10. Absence of Certain Changes .................... 19
Section 5.11. No Undisclosed Material Liabilities ........... 21
Section 5.12. Compliance with Laws and Court Orders ......... 22
Section 5.13. Litigation .................................... 22
Section 5.14. Finders' Fees ................................. 22
Section 5.15. Taxes ......................................... 22
Section 5.16. Employee Benefit Plans ........................ 24
Section 5.17. Environmental Matters ......................... 26
Section 5.18. Antitakeover Statutes and Rights Agreement .... 27
Section 5.19. Intellectual Property ......................... 27
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT
Section 6.01. Corporate Existence and Power ................. 29
Section 6.02. Corporate Authorization ....................... 30
Section 6.03. Governmental Authorization .................... 30
Section 6.04. Non-contravention ............................. 30
Section 6.05. Disclosure Documents .......................... 30
Section 6.06. Finders' Fees ................................. 31
Section 6.07. Financing ..................................... 31
Section 6.08. Activities In The Netherlands ................. 31
ARTICLE 7
COVENANTS OF THE COMPANY
Section 7.01. Conduct of the Company ........................ 32
Section 7.02. Stockholder Meeting; Proxy Material ........... 32
Section 7.03. Access to Information ......................... 33
Section 7.04. No Solicitation; Other Offers ................. 33
Section 7.05. Notices of Certain Events ..................... 35
Section 7.06. FIRPTA Certificate ............................ 35
Section 7.07. Employment Related Obligations ................ 35
ARTICLE 8
COVENANTS OF PARENT
Section 8.01. Obligations of Merger Subsidiary .............. 36
Section 8.02. Voting of Shares .............................. 36
Section 8.03. Director and Officer Liability ................ 36
ARTICLE 9
COVENANTS OF PARENT AND THE COMPANY
Section 9.01. Best Efforts .................................. 38
Section 9.02. Certain Filings ............................... 38
Section 9.03. Public Announcements .......................... 38
Section 9.04. Further Assurances ............................ 39
Section 9.05. Merger Without Meeting of Stockholders ........ 39
ARTICLE 10
CONDITIONS TO THE MERGER
Section 10.01. Conditions to Obligations of Each Party ...... 39
Section 10.02. Conditions to the Obligations of Parent and
Merger Subsidiary ............................ 40
ARTICLE 11
TERMINATION
Section 11.01. Termination .................................. 40
Section 11.02. Effect of Termination ........................ 41
ARTICLE 12
MISCELLANEOUS
Section 12.01. Notices ...................................... 42
Section 12.02. Survival of Representations and Warranties ... 43
Section 12.03. Amendments; No Waivers ....................... 43
Section 12.04. Expenses ..................................... 43
Section 12.05. Binding Effect; Benefit; Assignment .......... 45
Section 12.06. Governing Law ................................ 45
Section 12.07. Jurisdiction ................................. 45
Section 12.08. WAIVER OF JURY TRIAL ......................... 46
Section 12.09. Counterparts; Effectiveness .................. 46
Section 12.10. Entire Agreement ............................. 46
Section 12.11. Captions ..................................... 46
Section 12.12. Severability ................................. 46
Section 12.13. Specific Performance ......................... 47
Section 12.14. Breach ....................................... 47
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of November 3, 2002,
among Industri-Matematik International Corp., a Delaware
corporation (the "Company"), STG, an exempted company
incorporated with limited liability in the Cayman Islands
("Parent"), and STG OMS Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of Parent ("Merger Subsidiary").
WHEREAS, the respective boards of directors of each of
Parent, Merger Subsidiary and the Company have determined that it
is in the best interests of their respective entities and
shareholders to enter into this Agreement and have approved and
adopted this Agreement and the merger of Merger Subsidiary with
and into the Company (the "Merger") upon the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, the Company, Parent and Merger Sub desire to make
certain representations, warranties, covenants and agreements in
connection with this Agreement.
NOW THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as
used herein, have the following meanings:
"Abalon" means Abalon AB, a corporation organized under the
laws of Sweden and a Subsidiary of the Company.
"Acquisition Proposal" means, other than the transactions
contemplated by this Agreement, any Third-Party offer, proposal
or inquiry relating to, or any Third-Party indication of interest
in, (i) any acquisition or purchase, direct or indirect, of 20%
or more of the consolidated assets of the Company and its
Subsidiaries or over 20% of any class of equity or voting
securities of the Company or any of its Subsidiaries whose
assets, individually or in the aggregate, constitute more than
20% of the consolidated assets of the Company, (ii) any tender
offer (including a self-tender offer) or exchange offer that, if
consummated, would result in any Third Party's beneficially
owning 20% or more of any class of equity or voting securities of
the Company or any of its Subsidiaries whose assets, individually
or in the aggregate, constitute more than 20% of the consolidated
assets of the Company, (iii) a merger, consolidation, share
exchange, business combination, sale of substantially all the
assets, reorganization, recapitalization, liquidation,
dissolution or other similar transaction involving the Company or
any of its Subsidiaries whose assets, individually or in the
aggregate, constitute more than 20% of the consolidated assets of
the Company or (iv) any other transaction the consummation of
which could reasonably be expected to impede, interfere with,
prevent or materially delay the Offer or Merger or that could
reasonably be expected to dilute materially the benefits to
Parent of the transactions contemplated hereby.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under
common control with such Person.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York are
authorized or required by law to close.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company Balance Sheet" means the consolidated balance
sheet of the Company as of April 30, 2002 and the footnotes
thereto set forth in the Company 10-K.
"Company Balance Sheet Date" means April 30, 2002.
"Company 10-K" means the Company's annual report on Form
10-K/A for the fiscal year ended April 30, 2002.
"Company 10-Q" means the Company's quarterly report on Form
10-Q for the fiscal quarter ended July 31, 2002.
"Delaware Law" means the General Corporation Law of the
State of Delaware.
"Environmental Laws" means any federal, state, local or
foreign law (including common law), treaty, judicial decision,
regulation, rule, judgment, order, decree, injunction, permit or
governmental restriction or requirement or any agreement with any
governmental authority or other third party, relating to human
health and safety, the environment or to pollutants,
contaminants, wastes or chemicals or any toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substances,
wastes or materials.
"Environmental Permits" means all permits, licenses,
franchises, certificates, approvals and other similar
authorizations of governmental authorities relating to or
required by Environmental Laws and affecting the business of the
Company or any of its Subsidiaries as currently conducted.
"ERISA" means the Employee Retirement Income Security Act
of 1974.
"ERISA Affiliate" of any entity means any other entity
that, together with such entity, would be treated as a single
employer under Section 414 of the Code.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976.
"IMI NIK" means the assets of the Company and/or a
Subsidiary of the Company commonly referred to by the Company as
IMI Teknik and ESS Trade.
"Intellectual Property Rights" means (i) inventions,
whether or not patentable, reduced to practice or made the
subject of one or more pending patent applications, (ii) national
and multinational statutory invention registrations, patents and
patent applications (including all reissues, divisions,
continuations, continuations-in-part, extensions and
reexaminations thereof) registered or applied for in the United
States and all other nations throughout the world, all
improvements to the inventions disclosed in each such
registration, patent or patent application, (iii) trademarks,
service marks, trade dress, logos, domain names, trade names and
corporate names (whether or not registered) in the United States
and all other nations throughout the world, including all
variations, derivations, combinations, registrations and
applications for registration of the foregoing and all goodwill
associated therewith, (iv) copyrights (whether or not registered)
and registrations and applications for registration thereof in
the United States and all other nations throughout the world,
including all derivative works, moral rights, renewals,
extensions, reversions or restorations associated with such
copyrights, now or hereafter provided by law, regardless of the
medium of fixation or means of expression, (v) computer software,
(including source code, object code, firmware, operating systems
and specifications), (vi) trade secrets and, whether or not
confidential, business information (including pricing and cost
information, business and marketing plans and customer and
supplier lists) and know-how (including manufacturing and
production processes and techniques and research and development
information), (vii) industrial designs (whether or not
registered), (viii) databases and data collections, (ix) copies
and tangible embodiments of any of the foregoing, in whatever
form or medium, (x) all rights to obtain and rights to apply for
patents, and to register trademarks and copyrights, (xi) all
rights in all of the foregoing provided by treaties, conventions
and common law and (xii) all rights to xxx or recover and retain
damages and costs and attorneys' fees for past, present and
future infringement or misappropriation of any of the foregoing.
"Knowledge" of any Person that is not an individual means
the knowledge of such Person's corporate officers after
reasonable inquiry.
"Licensed Intellectual Property Rights" means all
Intellectual Property Rights owned by a third party and licensed
or sublicensed to either the Company or any Subsidiary of the
Company.
"Lien" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest, encumbrance or
other adverse claim of any kind in respect of such property or
asset other than a statutory lien.
"Material Adverse Effect" means, with respect to any
Person, a material adverse effect on (i) the condition (financial
or otherwise), business, liabilities, properties, assets or
results of operations of such Person and its Subsidiaries, taken
as a whole, or (ii) such Person's ability to perform its
obligations under or consummate the transactions contemplated by
this Agreement (except to the extent caused directly or
indirectly by any action or inaction of such Person), except any
such effect resulting from or arising in connection with (A)
changes in general national, international or regional economic
or financial conditions, or (B) the public announcement or
consummation of this Agreement or the transactions contemplated
hereby.
"1933 Act" means the Securities Act of 1933.
"1934 Act" means the Securities Exchange Act of 1934.
"Owned Intellectual Property Rights" means all Intellectual
Property Rights owned by either the Company or any Subsidiary of
the Company.
"Person" means an individual, corporation, partnership,
limited liability company, association, trust or other entity or
organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Restricted Stock" means 654,995 Shares held by the Company
against non-recourse promissory notes executed by certain
executives of the Company.
"SEC" means the Securities and Exchange Commission.
"Securities Litigation" means the shareholder class action
styled Xxxxxx Xxxxxx, et al. v. Industri-Matematik International
Corp., et al. Civil Action No.: 99CV08761 which is pending before
the United States District Court for the Southern District of New
York.
"Shares" means the shares of common stock, $0.01 par value,
of the Company.
"Subsidiary" means, with respect to any Person, any entity
of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by such Person.
"Third Party" means any Person as defined in this Agreement
or in Section 13(d) of the 1934 Act, other than Parent or any of
its Affiliates.
Any reference in this Agreement to a statute shall be to
such statute, as amended from time to time, and to the rules and
regulations promulgated thereunder.
(b) Each of the following terms is defined in the Section
set forth opposite such term:
Term Section
---- -------
Act 5.03
Board of Directors 2.02
Bylaws 4.02
Certificates 3.03
Charter 4.01
Company Disclosure Documents 5.09
Company Proxy Statement 5.09
Company SEC Documents 5.07
Company Securities 5.05
Company Subsidiary Securities 5.06
Company Stockholder Meeting 7.02
Confidentiality Agreement 7.03
Effective Time 3.01
Employer Plans 5.16
Estimated Cost 12.04
Event 12.04
Exchange Agent 3.03
Fund 6.08
GAAP 5.08
Indemnified Person 8.03
Independent Directors 2.03
IRS 5.15
Merger Recitals
Merger Consideration 3.02
Minimum Condition 2.01
Multiemployer Plan 5.16
Offer 2.01
Offer Documents 2.01
Options 3.05
Schedule TO 2.01
Schedule 14D-9 2.02
Special Committee 2.02
Subsequent Offering Period 2.01
Superior Proposal 7.04
Surviving Corporation 3.01
Tax Return 5.15
Taxes 5.15
Taxing Authority 5.15
Termination Benefits 5.16
Title IV Plan 5.16
Uncertificated Shares 3.03
ARTICLE 2
THE OFFER
Section 2.01. The Offer. (a) Provided that nothing
shall have occurred that, had the Offer referred to below been
commenced, would give rise to a right to terminate the Offer
pursuant to any of the conditions set forth in Annex I hereto, as
promptly as practicable after the date hereof but in no event
later than 15 Business Days following the date hereof, Merger
Subsidiary shall commence (within the meaning of Rule 14d-2 under
the 0000 Xxx) an offer (the "Offer") to purchase any and all of
the outstanding Shares at a price of $0.35 per Share, net to the
seller in cash. The Offer shall be subject to the condition that
there shall be validly tendered in accordance with the terms of
the Offer, prior to the expiration date of the Offer and not
withdrawn, a number of Shares that, together with the Shares then
owned by Parent and/or Merger Subsidiary, represents at least 65%
of the Shares outstanding, excluding Restricted Stock (the
"Minimum Condition") and to the other conditions set forth in
Annex I hereto. Merger Subsidiary expressly reserves the right
to waive any of the conditions to the Offer and to make any
change in the terms of or conditions to the Offer; provided that
(i) the Minimum Condition may be waived only with the prior
consent of the Company, which shall not be unreasonably withheld
or delayed in the event that a majority of the Shares have been
tendered, (ii) any material change to the terms and conditions of
the Offer may only be made with the prior consent of the Company,
which shall not be unreasonably withheld or delayed and (iii) no
change may be made that changes the form of consideration to be
paid, decreases the price per Share or the number of Shares
sought in the Offer or imposes conditions to the Offer in
addition to those set forth in Annex I. Notwithstanding the
foregoing, without the consent of the Company, Merger Subsidiary
shall have the right to extend the Offer (i) from time to time
if, at the scheduled or extended expiration date of the Offer,
any of the conditions to the Offer shall not have been satisfied
or waived, until such conditions are satisfied or waived and (ii)
for any period required by any rule, regulation, interpretation
or position of the SEC or the staff thereof applicable to the
Offer or any period required by applicable law and (iii) on one
or more occasions for an aggregate period of not more than 10
Business Days beyond the latest expiration date that would
otherwise be permitted under clause (i) or (ii) of this sentence,
if, on such expiration date, the number of Shares tendered (and
not withdrawn) pursuant to the Offer, together with the Shares
then owned by Parent, represents more than the Minimum Condition
but less than 90% of the outstanding Shares; provided that under
no circumstances shall Merger Subsidiary, without the prior
consent of the Board of Directors of the Company, which consent
shall not be unreasonably withheld, extend the Offer to an
expiration date more than 50 Business Days beyond the date that
the Offer is commenced. Following expiration of the Offer,
Merger Subsidiary may, in its sole discretion, provide a
subsequent offering period ("Subsequent Offering Period") in
accordance with Rule 14d-11 of the 1934 Act. Subject to the
foregoing, including the requirements of Rule 14d-11, and upon
the terms and subject to the conditions of the Offer, Merger
Subsidiary shall, and Parent shall cause it to, accept for
payment and pay for, as promptly as practicable after the
expiration of the Offer, all Shares (i) validly tendered and not
withdrawn pursuant to the Offer and (ii) validly tendered in the
Subsequent Offering Period.
(b) As soon as practicable on the date of commencement of
the Offer, but no later than 15 Business Days after the public
announcement of the terms of this Agreement, Parent and Merger
Subsidiary shall (i) file with the SEC a Tender Offer Statement
on Schedule TO with respect to the Offer (together with all
amendments and supplements thereto and including exhibits
thereto, the "Schedule TO") that shall include the summary term
sheet required thereby and, as exhibits, the Offer to Purchase
and a form of letter of transmittal and summary advertisement
(collectively, together with any amendments or supplements
thereto, the "Offer Documents") and (ii) cause the Offer
Documents to be disseminated to holders of Shares. Each of
Parent, Merger Subsidiary and the Company agrees promptly to
correct any information provided by it for use in the Schedule TO
and the Offer Documents if and to the extent that such
information shall have become false or misleading in any material
respect. Parent and Merger Subsidiary agree to take all steps
necessary to cause the Schedule TO as so corrected to be filed
with the SEC and the Offer Documents as so corrected to be
disseminated to holders of Shares, in each case as and to the
extent required by applicable federal securities laws. The
Company and its counsel shall be given an opportunity to review
and comment on the Schedule TO and the Offer Documents before the
Schedule TO is filed with the SEC. In the event that this
Agreement has been terminated pursuant to Article 11, Parent and
Merger Subsidiary shall promptly terminate the Offer without
accepting any Shares for payment.
Section 2.02. Company Action. (a) The Company hereby
consents to the Offer and represents that its board of directors
(the "Board of Directors"), at a meeting duly called and held and
acting on the unanimous recommendation of a special committee of
the Board of Directors comprised of two independent directors
(the "Special Committee"), has unanimously (i) determined that
this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, are fair to and in the best
interests of the Company's stockholders, (ii) approved and
adopted this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, in accordance with the
requirements of the Delaware Law and (iii) subject to Section
7.04(b), resolved to recommend acceptance of the Offer and
approval and adoption of this Agreement and the Merger by its
stockholders. The Company further represents that Broadview
International Limited has delivered to the Board of Directors its
written opinion that the consideration to be paid in the Offer
and the Merger is fair to the holders of Shares from a financial
point of view based upon and subject to the factors and
assumptions set forth therein. The parties acknowledge that
Warburg, Xxxxxx Investors, L.P., subject to certain conditions,
has agreed to either tender the Shares held by it pursuant to the
Offer or to vote in favor of the Merger pursuant to a letter
agreement with Symphony Technology Group dated September 23,
2002, as amended from time to time. The Company shall direct its
transfer agent to promptly furnish Parent with a list of its
stockholders, mailing labels and any available listing or
computer file containing the names and addresses of all record
holders of Shares and lists of securities positions of Shares
held in stock depositories, in each case true and correct insofar
as the records of the transfer agent are concerned as of the most
recent practicable date, and shall provide to Parent such
additional information (including updated lists of stockholders,
mailing labels and lists of securities positions) and such other
assistance as Parent may reasonably request in connection with
the Offer.
(b) On the day that the Offer is commenced or as soon as
practicable thereafter, the Company shall file with the SEC and
disseminate to holders of Shares, in each case as and to the
extent required by applicable federal securities laws, a
Solicitation/Recommendation Statement on Schedule 14D-9 (together
with any amendments or supplements thereto, the "Schedule 14D-9")
that, subject to Section 7.04(b), shall reflect the
recommendations of the Board of Directors referred to above.
Each of the Company, Parent and Merger Subsidiary agrees promptly
to correct any information provided by it for use in the
Schedule 14D-9 if and to the extent that it shall have become
false or misleading in any material respect. The Company agrees
to take all steps necessary to cause the Schedule 14D-9 as so
corrected to be filed with the SEC and to be disseminated to
holders of Shares, in each case as and to the extent required by
applicable federal securities laws. Parent and its counsel shall
be given an opportunity to review and comment on the
Schedule 14D-9 before it is filed with the SEC.
Section 2.03. Directors. (a) Effective upon payment for
at least 55% of the outstanding Shares pursuant to the Offer,
excluding Restricted Stock, Parent shall be entitled to designate
the number of directors, rounded up to the next whole number, on
the Board of Directors that equals the product of (i) the total
number of directors on the Board of Directors (giving effect to
the election of any additional directors pursuant to this
Section) and (ii) the percentage that the number of Shares
beneficially owned by Parent and/or Merger Subsidiary (including
Shares accepted for payment) bears to the total number of Shares
outstanding, and the Company shall take all action necessary to
cause Parent's designees to be elected or appointed to the Board
of Directors, including increasing the number of directors, and
seeking and accepting resignations of incumbent directors. At
such time, the Company shall also use its reasonable best efforts
to cause individuals designated by Parent to constitute the
number of members, rounded up to the next whole number, on (i)
each committee of the Board of Directors other than the Special
Committee or any committee of the Board of Directors established
to take action under this Agreement and (ii) each board of
directors of each Subsidiary of the Company (and each committee
thereof) that represents the same percentage as such individuals
represent on the Board of Directors. Notwithstanding the
foregoing, until Parent and/or Merger Subsidiary acquires a
majority of the outstanding Shares, the Company shall use its
reasonable best efforts to ensure that all of the members of the
Board of Directors and such committees and boards as of the date
hereof who are not employees of the Company shall remain members
of the Board of Directors and such committees and boards until
the Effective Time.
(b) Anything to the contrary contained herein
notwithstanding, if Parent's designees are appointed or elected
to the Board of Directors of the Company, until the Effective
Time the Board of Directors of the Company shall have at least
two (2) directors who are directors on the date hereof and who
are not officers, designees, stockholders, affiliates or
associates (within the meaning of the federal securities laws) of
Parent or the Company or having any other material relationship
with the Parent or the Company (one or more of such directors,
the "Independent Directors"); provided that if less than two (2)
Independent Directors remain, the remaining Independent Director
(if any) or if no Independent Directors remain, the other
directors, shall designate persons to fill the vacancies who
shall not be officers, designees, shareholders, affiliates or
associates of Parent or the Company or having any other material
relationship with the Parent or the Company, and such persons
shall be deemed to be Independent Directors for purposes of this
Agreement; provided further that, upon the payment for 55% of the
Shares pursuant to the Offer, the Parent's designees shall always
represent at least a majority of the Board of Directors.
(c) The Company's obligations to appoint Parent's designees
to the Board of Directors shall be subject to Section 14(f) of
the 1934 Act and Rule 14f-1 promulgated thereunder. The Company
shall promptly take all actions, and shall include in the
Schedule 14D-9 such information with respect to the Company and
its officers and directors, as Section 14(f) and Rule 14f-1
require in order to fulfill its obligations under this Section.
Parent shall supply to the Company in writing and be solely
responsible for any information with respect to itself and its
nominees, officers, directors and affiliates required by
Section 14(f) and Rule 14f-1.
(d) Following the election or appointment of Parent's
designees pursuant to Section 2.03(a) and until the Effective
Time, the approval of a majority of the directors of the Company
then in office who were not designated by Parent, or if there are
no such continuing directors, then a majority of the Independent
Directors, shall be required to authorize (and such authorization
shall constitute the authorization of the Board of Directors and
no other action on the part of the Company, including any action
by any other director of the Company, shall be required to
authorize) any termination of this Agreement by the Company, any
amendment of this Agreement requiring action by the Board of
Directors, any extension of time for performance of any
obligation or action hereunder by Parent or Merger Subsidiary,
any waiver of compliance with any of the agreements or conditions
contained herein for the benefit of the Company, and the
assertion or enforcement of the Company's rights under this
Agreement to object to (i) a failure to consummate the Merger for
a failure of a condition contained herein for the benefit of the
Company to be satisfied or (ii) a termination of this Agreement
under Article 11.
ARTICLE 3
THE MERGER
Section 3.01. The Merger. (a) At the Effective Time,
Merger Subsidiary shall be merged with and into the Company in
accordance with Delaware Law, whereupon the separate existence of
Merger Subsidiary shall cease, and the Company shall be the
surviving corporation (the "Surviving Corporation").
(b) As soon as practicable after satisfaction or, to the
extent permitted hereunder, waiver of all conditions to the
Merger, the Company and Merger Subsidiary shall file a
certificate of merger with the Delaware Secretary of State and
make all other filings or recordings required by Delaware Law in
connection with the Merger. The Merger shall become effective at
such time (the "Effective Time") as the certificate of merger is
duly filed with the Delaware Secretary of State or at such later
time as is specified in the certificate of merger.
(c) From and after the Effective Time, the Surviving
Corporation shall possess all the rights, powers, privileges and
franchises and be subject to all of the obligations, liabilities,
restrictions and disabilities of the Company and Merger
Subsidiary, all as provided under Delaware Law.
Section 3.02. Conversion of Shares. At the Effective
Time:
(a) except as otherwise provided in Section 3.02(b),
Section 3.02(c) or Section 3.04, each Share outstanding
immediately prior to the Effective Time shall be converted into
the right to receive $0.35 in cash or any higher price paid for
each Share in the Offer, without interest (the "Merger
Consideration");
(b) each Share held by the Company as treasury stock or
owned by Parent or any of its Subsidiaries immediately prior to
the Effective Time shall be canceled, and no payment shall be
made with respect thereto;
(c) each Share held by any Subsidiary of the Company
immediately prior to the Effective Time shall remain outstanding;
and
(d) each share of common stock of Merger Subsidiary
outstanding immediately prior to the Effective Time shall be
converted into and become 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.
Section 3.03. Surrender and Payment. (a) Prior to the
Effective Time, Parent shall appoint an agent (the "Exchange
Agent") reasonably acceptable to the Company for the purpose of
exchanging for the Merger Consideration (i) certificates
representing Shares (the "Certificates") or (ii) uncertificated
Shares (the "Uncertificated Shares"). Parent shall make
available to the Exchange Agent, as needed, the Merger
Consideration to be paid in respect of the Certificates and the
Uncertificated Shares. Such funds shall be invested by the
Exchange Agent as directed by Parent or the Surviving Corporation
pending payment thereof by the Exchange Agent to the holders of
the Shares. Earnings from such investments shall be the sole and
exclusive property of Parent and the Surviving Corporation, and
no part of such earnings shall accrue to the benefit of holders
of Shares. Promptly after the Effective Time, but no later than
10 Business Days following the Effective Time, Parent shall send,
or shall cause the Exchange Agent to send, to each holder of
Shares at the Effective Time a letter of transmittal and
instructions (which shall specify that the delivery shall be
effected, and risk of loss and title shall pass, only upon proper
delivery of the Certificates or transfer of the Uncertificated
Shares to the Exchange Agent) for use in such exchange.
(b) Each holder of Shares that have been converted into the
right to receive the Merger Consideration shall be entitled to
receive, upon (i) surrender to the Exchange Agent of a
Certificate, together with a properly completed letter of
transmittal, or (ii) receipt of an "agent's message" by the
Exchange Agent (or such other evidence, if any, of transfer as
the Exchange Agent may reasonably request) in the case of a book-
entry transfer of Uncertificated Shares, the Merger Consideration
payable for each Share represented by a Certificate or for each
Uncertificated Share. Until so surrendered or transferred, as
the case may be, each such Certificate or Uncertificated Share
shall represent after the Effective Time for all purposes only
the right to receive such Merger Consideration.
(c) If any portion of the Merger Consideration is to be
paid to a Person other than the Person in whose name the
surrendered Certificate or the transferred Uncertificated Share
is registered, it shall be a condition to such payment that (i)
either such Certificate shall be properly endorsed or shall
otherwise be in proper form for transfer or such Uncertificated
Share shall be properly transferred and (ii) the Person
requesting such payment shall pay to the Exchange Agent any
transfer or other taxes required as a result of such payment to a
Person other than the registered holder of such Certificate or
Uncertificated Share or establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not payable.
(d) After the Effective Time, there shall be no further
registration of transfers of Shares. If, after the Effective
Time, Certificates or Uncertificated Shares are presented to the
Surviving Corporation, they shall be canceled and exchanged for
the Merger Consideration provided for, and in accordance with the
procedures set forth, in this Article 3.
(e) Any portion of the Merger Consideration made available
to the Exchange Agent pursuant to Section 3.03(a) (and any
interest or other income earned thereon) that remains unclaimed
by the holders of Shares one year after the Effective Time shall
be returned to Parent, upon demand, and any such holder who has
not exchanged such Shares for the Merger Consideration in
accordance with this Section 3.03 prior to that time shall
thereafter look only to Parent for payment of the Merger
Consideration in respect of such Shares without any interest
thereon. Notwithstanding the foregoing, Parent shall not be
liable to any holder of Shares for any amount paid to a public
official pursuant to applicable abandoned property, escheat or
similar laws. Any amounts remaining unclaimed by holders of
Shares two years after the Effective Time (or such earlier date
immediately prior to such time when the amounts would otherwise
escheat to or become property of any governmental authority)
shall become, to the extent permitted by applicable law, the
property of Parent free and clear of any claims or interest of
any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available
to the Exchange Agent pursuant to Section 3.03(a) to pay for
Shares for which appraisal rights have been perfected shall be
returned to Parent, upon demand.
Section 3.04. Dissenting Shares. Notwithstanding
Section 3.02, Shares outstanding immediately prior to the
Effective Time and held by a holder who has not voted in favor of
the Merger or consented thereto in writing and who has demanded
appraisal for such Shares in accordance with Delaware Law shall
not be converted into a right to receive the Merger
Consideration, unless such holder fails to perfect, withdraws or
otherwise loses the right to appraisal. If, after the Effective
Time, such holder fails to perfect, withdraws or loses the right
to appraisal, such Shares shall be treated as if they had been
converted as of the Effective Time into a right to receive the
Merger Consideration. The Company shall give Parent prompt
notice of any demands received by the Company for appraisal of
Shares, and Parent shall have the right to participate in all
negotiations and proceedings with respect to such demands.
Except with the prior written consent of Parent, the Company
shall not make any payment with respect to, or offer to settle or
settle, any such demands.
Section 3.05. Stock Options. At the Effective Time,
each stock option to purchase Shares outstanding under any stock
option or compensation plan or arrangement of the Company
("Options") shall be canceled, and the Company shall pay each
holder of any such option at or promptly after the Effective Time
for each such option an amount in cash determined by multiplying
(i) the excess, if any, of $0.35 per Share over the applicable
exercise price of such option by (ii) the number of Shares such
holder could have purchased had such holder exercised such option
in full immediately prior to the Effective Time.
Section 3.06. Adjustments. If, during the period
between the date of this Agreement and the Effective Time, any
change in the outstanding Shares shall occur, including by reason
of any reclassification, recapitalization, stock split or
combination, exchange or readjustment of Shares, or stock
dividend thereon with a record date during such period, the cash
payable pursuant to the Offer, the Merger Consideration and any
other amounts payable pursuant to this Agreement shall be
appropriately adjusted.
Section 3.07. Withholding Rights. Each of the Surviving
Corporation and Parent shall be entitled to deduct and withhold
from the consideration otherwise payable to any Person pursuant
to this Article 3 such amounts as it is required to deduct and
withhold with respect to the making of such payment under any
provision of federal, state, local or foreign tax law. If the
Surviving Corporation or Parent, as the case may be, so withholds
amounts, such amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the Shares in
respect of which the Surviving Corporation or Parent, as the case
may be, made such deduction and withholding.
Section 3.08. Lost Certificates. If any Certificate
shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the Person claiming such Certificate to
be lost, stolen or destroyed and, if required by the Surviving
Corporation, the posting by such Person of a bond, in such
reasonable amount as the Surviving Corporation may direct, as
indemnity against any claim that may be made against it with
respect to such Certificate, the Exchange Agent shall pay, in
exchange for such lost, stolen or destroyed Certificate, the
Merger Consideration to be paid in respect of the Shares
represented by such Certificate, as contemplated by this Article
3.
ARTICLE 4
THE SURVIVING CORPORATION
Section 4.01. Certificate of Incorporation. The
certificate of incorporation of the Company as in effect at the
Effective Time shall be the certificate of incorporation of the
Surviving Corporation (the "Charter") until amended in accordance
with applicable law; provided that, at the Effective Time, the
Charter shall be amended as set forth in Annex II.
Section 4.02. Bylaws. The bylaws of Merger Subsidiary
as in effect immediately prior to the Effective Time shall be the
bylaws of the Surviving Corporation (the "Bylaws"); provided,
however, that the Bylaws shall be amended to change the name of
the Surviving Corporation to the name of: "Industri-Matematik
International Corp.", and as so amended, shall be the bylaws of
the Surviving Corporation until thereafter amended as provided
therein or by applicable law.
Section 4.03. Directors and Officers. From and after
the Effective Time, until successors are duly elected or
appointed and qualified in accordance with applicable law, (i)
the directors of Merger Subsidiary at the Effective Time shall be
the directors of the Surviving Corporation and (ii) the officers
of the Company at the Effective Time shall be the officers of the
Surviving Corporation.
Section 4.04. Charter And Bylaws Provisions. Anything
to the contrary contained in this Article 4 notwithstanding, the
Charter and Bylaws shall contain such provisions as may be
required by other provisions of this Agreement including but not
limited to the indemnification provisions referred to in Section
8.03(a).
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent that:
Section 5.01. Corporate Existence and Power. The
Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has
all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry
on its business as now conducted, except for those licenses,
authorizations, permits, consents and approvals the absence of
which would not have, individually or in the aggregate, a
Material Adverse Effect on the Company. The Company is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where such qualification is
necessary, except for those jurisdictions where failure to be so
qualified would not have, individually or in the aggregate, a
Material Adverse Effect on the Company. The Company has
heretofore delivered to Parent true and complete copies of the
certificate of incorporation and bylaws of the Company as
currently in effect.
Section 5.02. Corporate Authorization. The execution,
delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated
hereby are within the Company's corporate powers and, except for
the affirmative vote of the holders of a majority of the
outstanding Shares in connection with the consummation of the
Merger (if required by law), have been duly authorized by all
necessary corporate action on the part of the Company. The
affirmative vote of the holders of a majority of the outstanding
Shares (if required by law) is the only vote of the holders of
any of the Company's capital stock necessary in connection with
the consummation of the Merger. This Agreement constitutes a
valid and binding agreement of the Company.
Section 5.03. Governmental Authorization. The
execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions
contemplated hereby require no action by or in respect of, or
filing with, any governmental body, agency, official or
authority, domestic, foreign or supranational, other than (i) the
filing of a certificate of merger with respect to the Merger with
the Delaware Secretary of State and appropriate documents with
the relevant authorities of other states in which the Company is
qualified to do business, (ii) filings or consents under the
Irish Mergers, Take-Overs and Monopolies (Control) Act, 1978, as
amended (the "Act"), if Parent assigns, delegates or otherwise
transfers its rights or obligations under this Agreement pursuant
to Section 12.05(b)(i), (iii) compliance with any applicable
requirements of the 1933 Act, the 1934 Act and any other
applicable securities or takeover laws, whether state or foreign,
(iv) compliance with the rules and regulations of the The Nasdaq
Stock Market, Inc. and (v) any actions or filings the absence of
which could not be reasonably expected to have, individually or
in the aggregate, a Material Adverse Effect on the Company or
materially to impair the ability of the Company to consummate the
transactions contemplated by this Agreement.
Section 5.04. Non-contravention. Except as disclosed in
Schedule 5.04, the execution, delivery and performance by the
Company of this Agreement and the consummation by the Company of
the transactions contemplated hereby do not and will not (i)
contravene, conflict with, or result in any violation or breach
of any provision of the certificate of incorporation or bylaws of
the Company, (ii) assuming compliance with the matters referred
to in Section 5.03, contravene, conflict with, or result in a
violation or breach of any provision of any applicable law,
statute, ordinance, rule, regulation, judgment, injunction, order
or decree, (iii) require any consent or other action by any
Person under, constitute a default or an event that, with or
without notice or lapse of time or both, could become a default
under, or cause or permit the termination, cancellation,
acceleration or other change of any right or obligation or the
loss of any benefit to which the Company or any of its
Subsidiaries is entitled under any provision of any agreement or
other instrument binding upon the Company or any of its
Subsidiaries or any license, franchise, permit, certificate,
approval or other similar authorization affecting the assets or
business of the Company and its Subsidiaries or (iv) result in
the creation or imposition of any Lien on any asset of the
Company or any of its Subsidiaries, except (a) for such
contraventions, conflicts and violations referred to in clause
(ii) and for such failures to obtain any such consent or other
action, defaults, terminations, cancellations, accelerations,
changes, losses or Liens referred to in clauses (iii) and (iv)
that would not be reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect on the Company or
materially to impair the ability of the Company to consummate the
transactions contemplated by this Agreement and (b) that with
respect to such failures to obtain any such consent or other
action, defaults, terminations, cancellations, accelerations,
changes, losses or Liens referred to in clauses (iii) and (iv),
no representation is made regarding professional services
agreements or consulting agreements between the Company, any of
its Subsidiaries or Affiliates (other than any Subsidiary or
Affiliate located in the United States) and the users of the
Company's software (other than Walkers Snack Foods, Spicers Ltd.,
Unipart UDL, Ahlsell AB, NorgesGruppen ASA, Hakon Gruppen AS, Ica
Ahold AB, Satair A/S, Royal Ahold BV, Kramp Groep BV and Xxxxxx
Xxxxx BV).
Section 5.05. Capitalization. (a) The authorized
capital stock of the Company consists of 75,000,000 shares of
Common Stock, par value $0.01, of which 12,500,000 shares are
designated as Class B Common Stock, and 15,000,000 shares of
Preferred Stock. As of October 21, 2002, there were outstanding
31,966,883 Shares and stock options to purchase an aggregate of
3,283,000 Shares (of which no such option had a per share
exercise price of less than $1). All outstanding shares of
capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable.
(b) Except as set forth in this Section 5.05 and for
changes since October 21, 2002 resulting from the exercise of
employee stock options outstanding on such date, there are no
outstanding (i) shares of capital stock of or other voting
securities or ownership interests in the Company, (ii) securities
of the Company convertible into or exchangeable for shares of
capital stock or other voting securities or ownership interests
in the Company or (iii) options or other rights to acquire from
the Company, or other obligation of the Company to issue, any
capital stock or other voting securities or ownership interests
in or any securities convertible into or exchangeable for capital
stock or other voting securities or ownership interests in the
Company (the items in clauses (i), (ii) and (iii) being referred
to collectively as the "Company Securities"). Except as
disclosed in Schedule 5.05 and in the Company Disclosure
Documents, there are no outstanding obligations of the Company or
any of its Subsidiaries to repurchase, redeem or otherwise
acquire any of the Company Securities.
(c) Except as disclosed in this Section 5.05, none of the
Shares is owned by any Subsidiary of the Company.
Section 5.06. Subsidiaries. (a) Except as disclosed in
Schedule 5.06, each Subsidiary of the Company is a corporation
duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, has all corporate
powers and all governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now
conducted, except for those licenses, authorizations, permits,
consents and approvals the absence of which would not have,
individually or in the aggregate, a Material Adverse Effect on
the Company. Each such Subsidiary is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where such qualification is necessary, except for
those jurisdictions where failure to be so qualified would not
have, individually or in the aggregate, a Material Adverse Effect
on the Company. All Subsidiaries of the Company and their
respective jurisdictions of incorporation required to be
identified in the Company 10-K are so identified in the Company
10-K.
(b) All of the outstanding capital stock of or other voting
securities or ownership interests in each Subsidiary of the
Company is owned by the Company, directly or indirectly, free and
clear of any Lien and free of any other limitation or restriction
(including any restriction on the right to vote, sell or
otherwise dispose of such capital stock or other voting
securities or ownership interests). There are no outstanding (i)
securities of the Company or any of its Subsidiaries convertible
into or exchangeable for shares of capital stock of or other
voting securities or ownership interests in any Subsidiary of the
Company or (ii) options or other rights to acquire from the
Company or any of its Subsidiaries, or other obligation of the
Company or any of its Subsidiaries to issue, any capital stock of
or other voting securities or ownership interests in, or any
securities convertible into or exchangeable for any capital stock
of or other voting securities or ownership interests in, any
Subsidiary of the Company (the items in clauses (i) and (ii)
being referred to collectively as the "Company Subsidiary
Securities"). There are no outstanding obligations of the
Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any of the Company Subsidiary Securities.
Section 5.07. SEC Filings. (a) Parent has obtained (i)
the Company's annual reports on Form 10-K for its fiscal years
ended April 30, 2000 and 2001 and the Company 10-K, (ii) its
quarterly report on Form 10-Q for its fiscal quarter ended July
31, 2002, (iii) its proxy or information statements relating to
meetings of the stockholders of the Company held (or actions
taken without a meeting by such stockholders) since April 30,
2002, and (iv) all of its other reports, statements, schedules
and registration statements filed with the SEC since April 30,
2002 (the documents referred to in this Section 5.07(a),
collectively, the "Company SEC Documents.")
(b) As of its filing date, each Company SEC Document
complied, and each such Company SEC Document filed subsequent to
the date hereof will comply as to form in all material respects
with the applicable requirements of the 1933 Act and the 1934
Act, as the case may be.
(c) As of its filing date (or, if amended or superceded by
a filing prior to the date hereof, on the date of such filing),
each Company SEC Document filed pursuant to the 1934 Act did not,
and each such Company SEC Document filed subsequent to the date
hereof will not, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they were made, not misleading.
(d) Each Company SEC Document that is a registration
statement, as amended or supplemented, if applicable, filed
pursuant to the 1933 Act, as of the date such statement or
amendment became effective, did not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading.
Section 5.08. Financial Statements. The audited
consolidated financial statements and unaudited consolidated
interim financial statements of the Company included in the
Company SEC Documents fairly present, in conformity with
generally accepted accounting principles in the United States
("GAAP") applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial
position of the Company and its consolidated Subsidiaries as of
the dates thereof and their consolidated results of operations
and cash flows for the periods then ended (subject to normal
year-end adjustments in the case of any unaudited interim
financial statements). The books and records of the Company and
its Subsidiaries have been, and are being, maintained, in all
material respects, in accordance with GAAP and any other
applicable legal and accounting requirements.
Section 5.09. Disclosure Documents. (a) Each document
required to be filed by the Company with the SEC or required to
be distributed or otherwise disseminated to the Company's
stockholders in connection with the transactions contemplated by
this Agreement (the "Company Disclosure Documents"), including
the Schedule 14D-9, the proxy or information statement of the
Company (the "Company Proxy Statement"), if any, to be filed with
the SEC in connection with the Merger, and any amendments or
supplements thereto, when filed, distributed or disseminated, as
applicable, will comply as to form in all material respects with
the applicable requirements of the 1934 Act.
(b) (i) The Company Proxy Statement, as supplemented or
amended, if applicable, at the time such Company Proxy Statement
or any amendment or supplement thereto is first mailed to
stockholders of the Company and at the time such stockholders
vote on adoption of this Agreement and at the Effective Time, and
(ii) any Company Disclosure Document (other than the Company
Proxy Statement), at the time of the filing of such Company
Disclosure Document or any supplement or amendment thereto and at
the time of any distribution or dissemination thereof, will not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties
contained in this Section 5.09(b) will not apply to statements or
omissions included in the Company Disclosure Documents based upon
information furnished to the Company in writing by or on behalf
of the Parent specifically for use therein.
(c) The information with respect to the Company or any of
its Subsidiaries that the Company furnishes to Parent
specifically for use in the Schedule TO and the Offer Documents,
at the time of the filing of the Schedule TO, at the time of any
distribution or dissemination of the Offer Documents and at the
time of the consummation of the Offer, will not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not
misleading.
Section 5.10. Absence of Certain Changes. Since August
1, 2002 the business of the Company and its Subsidiaries has been
conducted in the ordinary course consistent with past practices
and, except as disclosed to Parent in Schedule 5.10, in the
Company 10-K and the Company 10-Q, there has not been:
(a) any event, occurrence, development or state of
circumstances or facts that has had or could reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company;
(b) any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of
capital stock of the Company, or any repurchase, redemption or
other acquisition by the Company or any of its Subsidiaries of
any outstanding shares of capital stock or other securities of,
or other ownership interests in, the Company or any of its
Subsidiaries;
(c) any amendment of any material term of any outstanding
security of the Company or any of its Subsidiaries;
(d) any incurrence, assumption or guarantee by the Company
or any of its Subsidiaries of any indebtedness for borrowed money
other than in the ordinary course of business and in amounts and
on terms consistent with past practices;
(e) any creation or other incurrence by the Company or any
of its Subsidiaries of any Lien on any material asset other than
in the ordinary course of business consistent with past
practices;
(f) any making of any loan, advance or capital
contributions to or investment in any Person other than loans,
advances or capital contributions to or investments in its
wholly-owned Subsidiaries made in the ordinary course of business
consistent with past practices;
(g) any damage, destruction or other casualty loss (whether
or not covered by insurance) affecting the business or assets of
the Company or any of its Subsidiaries that has had or would
reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on the Company;
(h) any transaction or commitment made, or any contract or
agreement entered into, by the Company or any of its Subsidiaries
relating to its assets or business (including the acquisition or
disposition of any assets) or any relinquishment by the Company
or any of its Subsidiaries of any contract or other right, in
either case, which would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on
the Company, other than transactions and commitments in the
ordinary course of business consistent with past practices and
those contemplated by this Agreement;
(i) any change in any method of accounting or accounting
principles or practice by the Company or any of its Subsidiaries,
except for any such change required by reason of a concurrent
change in GAAP or Regulation S-X under the 1934 Act;
(j) any (i) grant of any severance or termination pay to
(or amendment to any existing arrangement with) any current or
former director, officer or employee of the Company or any of its
Subsidiaries, (ii) increase in benefits payable under any
existing severance or termination pay policies or employment
agreements covering any current or former director, officer or
employee of the Company or any of its Subsidiaries, (iii) any
entering into any employment, deferred compensation or other
similar agreement (or any amendment to any such existing
agreement) with any current or former director, officer or
employee of the Company or any of its Subsidiaries, (iv)
establishment, adoption or amendment (except as required by
applicable law) of any labor, collective bargaining, bonus,
profit-sharing, thrift, pension, retirement, deferred
compensation, compensation, stock option, restricted stock or
other benefit plan or arrangement covering any current or former
director, officer or employee of the Company or any of its
Subsidiaries, (v) increase in compensation, bonus or other
benefits payable to any current or former director or officer of
the Company or any of its Subsidiaries or (vi) material increase
in compensation, bonus or other benefits payable to any current
or former employee of the Company or any of its Subsidiaries;
(k) any labor dispute, other than routine individual
grievances, or any activity or proceeding by a labor union or
workers council or representative thereof to organize any
employees of the Company or any of its Subsidiaries, which
employees were not subject to a collective bargaining or labor
agreement at the Company Balance Sheet Date, or any lockouts,
strikes, slowdowns, work stoppages or threats thereof by or with
respect to such employees;
(l) any Tax election made or changed, any annual tax
accounting period changed, any method of tax accounting adopted
or changed, any amended Tax Returns or claims for Tax refunds
filed, any closing agreement entered into, any Tax claim, audit
or assessment settled, or any right to claim a Tax refund, offset
or other reduction in Tax liability surrendered;
(m) any cancellation of any licenses, sublicenses,
franchises, permits or agreements to which the Company or any
Subsidiary is a party, or any notification to the Company or any
Subsidiary that any party to any such arrangements intends to
cancel or not renew such arrangements beyond their expiration
date as in effect on the date hereof, which cancellation or
notification has had or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; or
(n) any revaluation by the Company or any of its
Subsidiaries of any assets, including, without limitation,
writing down of the value of inventory or writing off notes or
accounts receivable, other than in the ordinary course of
business consistent with past practice.
Section 5.11. No Undisclosed Material Liabilities.
Except as disclosed in Schedule 5.11, there are no liabilities or
obligations of the Company or any of its Subsidiaries of any kind
whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition,
situation or set of circumstances that would reasonably be
expected to result in such a liability, other than:
(a) liabilities or obligations disclosed and provided for
in the Company Balance Sheet, the consolidated balance sheet of
the Company as of July 31, 2002 or in the notes thereto or in the
Company SEC Documents filed prior to the date hereof, and
(b) liabilities or obligations incurred in the ordinary
course of business consistent with past practices since August 1,
2002 that would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on the Company.
Section 5.12. Compliance with Laws and Court Orders.
Except as disclosed in Schedule 5.12, the Company and each of its
Subsidiaries is, and since the Company Balance Sheet Date has
been in compliance with, and to the Knowledge of the Company is
not under investigation with respect to and has not been
threatened to be charged with or given notice of any violation
of, any applicable law, statute, ordinance, rule, regulation,
judgment, injunction, order or decree, except for failures to
comply or violations that have not had and would not reasonably
be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company.
Section 5.13. Litigation. Except as disclosed in
Schedule 5.13 or as set forth in the Company SEC Documents filed
prior to the date hereof, there is no action, suit,
investigation, audit, arbitration or proceeding pending against,
or, to the Knowledge of the Company, threatened against or
affecting, the Company, any of its Subsidiaries, any present or
former officer, director or employee of the Company or any of its
Subsidiaries or any other Person for whom the Company or any such
Subsidiary may be liable or any of their respective properties or
assets before any court or arbitrator or before or by any
governmental body, agency or official, domestic, foreign or
supranational, that, if determined or resolved adversely in
accordance with the plaintiff's demands, would reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company or that in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the Offer or
the Merger or any of the other transactions contemplated hereby.
Section 5.14. Finders' Fees. Except as disclosed in
Schedule 5.14, there is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to
act on behalf of the Company or any of its Subsidiaries who might
be entitled to any fee or commission from the Company or any of
its Affiliates in connection with the transactions contemplated
by this Agreement.
Section 5.15. Taxes. (a) Except as disclosed in
Schedule 5.15, all Tax Returns required by applicable law to be
filed with any Taxing Authority by, or on behalf of, the Company
or any of its Subsidiaries have been filed when due (taking into
account any extensions) in accordance with all applicable laws,
and all such Tax Returns are, or will be at the time of filing,
true and complete in all material respects. To the extent any
such Returns have not been filed, without regard to whether the
failure to so file has been disclosed in Schedule 5.15, (i) if
such Returns had been truly, completely and properly filed, such
Returns would not have reflected, in the aggregate, a material
Tax liability with respect to the Company and its Subsidiaries
and (ii) the failure to file such Returns will not result, and
has not resulted, in the aggregate, in a material Tax liability
with respect to the Company and its Subsidiaries.
(b) The Company and each of its Subsidiaries has paid (or
has had paid on its behalf) or has withheld and remitted to the
appropriate Taxing Authority all Taxes due and payable, or, where
payment is not yet due, has established (or has had established
on its behalf and for its sole benefit and recourse) in
accordance with GAAP an adequate accrual for all Taxes through
the end of the last period for which the Company and its
Subsidiaries ordinarily record items on their respective books.
(c) Except as disclosed on Schedule 5.15, the income and
franchise Tax Returns of the Company and its Subsidiaries filed
in all jurisdictions within the United States and the United
Kingdom for all taxable years ending on or prior to April 30,
2000 have been examined and closed or are Returns with respect to
which the applicable period for assessment under applicable law,
after giving effect to extensions or waivers, has expired.
(d) There is no claim, audit, action, suit, proceeding or
investigation now pending or to the Knowledge of the Company
threatened against or with respect to the Company or its
Subsidiaries in respect of any Tax or Tax Asset.
(e) During the five-year period ending on the date hereof,
neither the Company nor any of its Subsidiaries was a
distributing corporation or a controlled corporation in a
transaction intended to be governed by Section 355 of the Code.
(f) Neither the Company nor any of its Subsidiaries owns an
interest in real property in any jurisdiction in which a Tax is
imposed, or the value of the interest is reassessed, on the
transfer of an interest in real property and which treats the
transfer of an interest in an entity that owns an interest in
real property as a transfer of the interest in real property.
(g) Schedule 5.15 contains a list of all jurisdictions
(whether foreign or domestic) in which the Company or any of its
Subsidiaries currently files Tax Returns.
(h) "Tax" means (i) any tax, governmental fee or other like
assessment or charge of any kind whatsoever (including, but not
limited to, withholding on amounts paid to or by any Person),
together with any interest, penalty, addition to tax or
additional amount imposed by any governmental authority (a
"Taxing Authority") responsible for the imposition of any such
tax (domestic or foreign), and any liability for any of the
foregoing as transferee, (ii) in the case of the Company or any
of its Subsidiaries, liability for the payment of any amount of
the type described in clause (i) as a result of being or having
been before the Effective Time a member of an affiliated,
consolidated, combined or unitary group, or a party to any
agreement or arrangement, as a result of which liability of the
Company or any of its Subsidiaries to a Taxing Authority is
determined or taken into account with reference to the activities
of any other Person, and (iii) liability of the Company or any of
its Subsidiaries for the payment of any amount as a result of
being party to any Tax Sharing Agreement or with respect to the
payment of any amount imposed on any person of the type described
in (i) or (ii) as a result of any existing express or implied
agreement or arrangement (including, but not limited to, an
indemnification agreement or arrangement). "Tax Return" means
any report, return, document, declaration or other information or
filing required to be supplied to any Taxing Authority with
respect to Taxes, including information returns, any documents
with respect to or accompanying payments of estimated Taxes, or
with respect to or accompanying requests for the extension of
time in which to file any such report, return, document,
declaration or other information.
Section 5.16. Employee Benefit Plans. (a) Schedule 5.16
contains a correct and complete list identifying each material
"employee benefit plan," as defined in Section 3(3) of ERISA,
each material employment, severance or similar contract, plan,
arrangement or policy and each other material plan or arrangement
(written or oral) providing for compensation, bonuses, profit-
sharing, stock option or other stock related rights or other
forms of incentive or loans, deferred compensation, vacation
benefits, insurance (including any self-insured arrangements),
health or medical benefits, employee assistance program,
disability or sick leave benefits, workers' compensation,
supplemental unemployment benefits, severance benefits and post-
employment or retirement benefits (including compensation,
pension, health, medical or life insurance benefits) which is
maintained, administered or contributed to by the Company or any
Affiliate and covers any current or former director, officer or
employee of the Company or any of its Subsidiaries, or with
respect to which the Company or any of its Subsidiaries has any
liability, other than those plans and agreements filed as part of
the
Company SEC Documents. Except for those plans included in
the Company SEC Documents, copies of such contracts, plans,
arrangements and policies (and, if applicable, related trust or
funding agreements or insurance policies) and all amendments
thereto and written interpretations thereof have been furnished
to Parent together with the most recent annual report (Form 5500
including, if applicable, Schedule B thereto) and tax return
prepared in connection with any such plan or trust. Such
contracts,
plans, arrangements and policies are referred to
collectively herein as the "Employee Plans."
(b) Neither the Company nor any ERISA Affiliate nor any
predecessor thereof sponsors, maintains or contributes to, or has
in the past sponsored, maintained or contributed to, any Employee
Plan subject to Title IV of ERISA.
(c) Neither the Company nor any ERISA Affiliate nor any
predecessor thereof contributes to, or has in the past
contributed to, any multiemployer plan, as defined in
Section 3(37) of ERISA (a "Multiemployer Plan").
(d) Each Employee Plan that is intended to be qualified
under Section 401(a) of the Code has received a favorable
determination letter, or has pending or has time remaining in
which to file, an application for such determination from the
Internal Revenue Service, and the Company is not aware of any
reason why any such determination letter should be revoked or not
be issued. Each Employee Plan that is intended to be qualified
or registered under the laws of any Non-U.S. jurisdiction is so
qualified or registered. Each Employee Plan has been maintained
in material compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and
regulations, including but not limited to ERISA and the Code,
which are applicable to such Employee Plan and each Employee Plan
has been maintained in good standing with all applicable
regulatory authorities.
(e) Neither the execution or approval of this Agreement nor
consummation by the Company of the transactions contemplated by
this Agreement will not (either alone or together with any other
event) entitle any current or former director, officer, employee
or independent contractor of the Company or any of its
Subsidiaries to severance pay or accelerate the time of payment
or vesting or trigger any payment or funding (through a grantor
trust or otherwise) of bonus or other compensation or benefits of
any kind under, increase the amount payable or trigger any other
material obligation pursuant to, any Employee Plan. There is no
contract, plan or arrangement (written or otherwise) covering any
employee or former employee of the Company or any of its
Subsidiaries that, individually or collectively, could give rise
to the payment of any amount that would not be deductible
pursuant to the terms of Section 280G or 162(m) of the Code.
(f) Neither the Company nor any of its Subsidiaries has any
liability in respect of post-retirement health, medical or life
insurance benefits for retired, former or current employees of
the Company or its Subsidiaries except as required to avoid
excise tax under Section 4980B of the Code.
(g) There has been no amendment to, written interpretation
or announcement (whether or not written) by the Company or any of
its Affiliates relating to, or change in employee participation
or coverage under, an Employee Plan which would increase
materially the expense of maintaining such Employee Plan above
the level of the expense incurred in respect thereof for the
fiscal year ended April 30, 2002.
(h) Neither the Company nor any of its Subsidiaries is a
party to or subject to, or is currently negotiating in connection
with entering into, any collective bargaining or labor agreement
or other contract or understanding with a labor union or
organization.
(i) All contributions and payments accrued under each
Employee Plan, determined in accordance with prior funding and
accrual practices, as adjusted to include proportional accruals
for the period ending as of the date hereof, have been discharged
and paid on or prior to the date hereof, except to the extent
reflected as a liability on the Company Balance Sheet.
(j) There is no action, suit, investigation, audit or
proceeding pending against or involving or, to the Knowledge of
the Company, threatened against or involving, any Employee Plan
before any court or arbitrator or any state, federal or local
governmental body, agency or official.
(k) Except as disclosed on Schedule 5.16(k), there exist no
loans or extensions of credit by the Company or any of its
Subsidiaries to any current and former director, officer,
employee and independent contractor of the Company or any of its
Subsidiaries which have not been repaid in full (for any reason)
as of the date hereof.
Section 5.17. Environmental Matters. (a) Except as set
forth in the Company SEC Documents filed prior to the date hereof
and except as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on
the Company:
(i) no notice, notification, demand, request for
information, citation, summons or order has been received,
no complaint has been filed, no penalty has been assessed,
and no investigation, action, claim, suit, proceeding or
review is pending or, to the Knowledge of the Company, is
threatened by any governmental entity or other Person
relating to or arising out of any Environmental Law;
(ii) the Company and its Subsidiaries are
and have been in compliance with all Environmental Laws and all
Environmental Permits; and
(iii) there are no liabilities of or relating to the
Company or any of its Subsidiaries of any kind whatsoever,
whether accrued, contingent, absolute, determined,
determinable or otherwise arising under or relating to any
Environmental Law, and there are no facts, conditions,
situations or set of circumstances that would reasonably be
expected to result in or be the basis for any such
liability.
(b) To the Knowledge of the Company, there has been no
environmental investigation, study, audit, test, review or other
analysis conducted of which the Company has Knowledge in relation
to the current or prior business of the Company or any of its
Subsidiaries or any property or facility now or previously owned
or leased by the Company or any of its Subsidiaries that has not
been delivered to Parent at least five Business Days prior to the
date hereof.
(c) Except as disclosed in Schedule 5.17, neither the
Company nor any of its Subsidiaries owns, leases or operates or
has owned, leased or operated any real property, or conducts or
has conducted any operations, in New Jersey or Connecticut.
(d) The consummation of the transactions contemplated by
this Agreement will not trigger or result in any obligation or
liability pursuant to the New Jersey Industrial Site Recovery
Act, as amended, and any rules or regulations promulgated
thereunder.
(e) For purposes of this Section 5.17, the terms "Company"
and "Subsidiaries" shall include any entity that is, in whole or
in part, a predecessor of the Company or any of its Subsidiaries.
Section 5.18. Antitakeover Statutes and Rights
Agreement. The Company has taken all action necessary to exempt
the Offer, the Merger, this Agreement and the transactions
contemplated hereby from the provisions of Section 203 of
Delaware Law, and, accordingly, no such Section nor other
antitakeover or similar statute or regulation applies or purports
to apply to any such transactions. No other "control share
acquisition," "fair price," "moratorium" or other antitakeover
laws or regulations enacted under U.S. state or federal laws or
any foreign laws apply to this Agreement or any of the
transactions contemplated hereby.
Section 5.19. Intellectual Property. (a) Schedule 5.19
contains a true and complete list of each of the registrations,
applications and other material Intellectual Property Rights
included in the Owned Intellectual Property Rights and the
Licensed Intellectual Property Rights, specifying as to each such
Intellectual Property Right, as applicable, (i) the nature of
such Intellectual Property Right, (ii) the owner of such
Intellectual Property Right, (iii) the jurisdictions by or in
which such Intellectual Property Right has been issued or
registered or in which an application for such issuance or
registration has been filed, (iv) the registration or application
numbers thereof, (v) the termination or expiration dates thereof
and (vi) all agreements related to such Intellectual Property
Right which is a Licensed Intellectual Property Right, setting
forth the date of any license or agreement and the identity of
all parties thereto.
(b) The Licensed Intellectual Property Rights and the Owned
Intellectual Property Rights together constitute all the
Intellectual Property Rights necessary to, or used or held for
use in, the conduct of the business of the Company and its
Subsidiaries as currently conducted and as proposed by the
Company or any of its Subsidiaries to be conducted. There exist
no restrictions on the disclosure, use or transfer of the Owned
Intellectual Property Rights. The consummation of the
transactions contemplated by this Agreement will not alter,
impair or extinguish any Owned Intellectual Property Rights or
Licensed Intellectual Property Rights.
(c) None of the Company and any of its Subsidiaries has
given an indemnity in connection with any Intellectual Property
Right to any Person, except to licensees of its software and to
Persons from whom it licenses software.
(d) To the Knowledge of the Company, none of the Company
and its Subsidiaries has infringed, misappropriated or otherwise
violated any Intellectual Property Right of any third person.
There is no claim, action, suit, investigation or proceeding
pending against, or, to the Knowledge of the Company, threatened
against or affecting, the Company, any of its Subsidiaries, any
present or former officer, director or employee of the Company or
any of its Subsidiaries (i) based upon, or challenging or seeking
to deny or restrict, the rights of the Company or any Subsidiary
in any of the Owned Intellectual Property Rights and the Licensed
Intellectual Property Rights, (ii) alleging that the use of the
Owned Intellectual Property Rights or the Licensed Intellectual
Property Rights or any services provided, processes used or
products manufactured, used, imported or sold by the Company or
any Subsidiary do or may conflict with, misappropriate, infringe
or otherwise violate any Intellectual Property Right of any third
party or (iii) alleging that the Company or any of its
Subsidiaries have infringed, misappropriated or otherwise
violated any Intellectual Property Right of any third party.
(e) None of the Owned Intellectual Property Rights and
Licensed Intellectual Property Rights material to the operation
of the business of the Company and its Subsidiaries has been
adjudged invalid or unenforceable in whole or part, and, to the
Knowledge of the Company, all such Owned Intellectual Property
Rights and Licensed Intellectual Property Rights are valid and
enforceable.
(f) The Company and its Subsidiaries hold all right, title
and interest in and to all Owned Intellectual Property Rights and
all of the Company's and its Subsidiaries' licenses under the
Licensed Intellectual Property Rights, free and clear of any
material Lien. In each case where a patent or patent
application, trademark registration or trademark application,
service xxxx registration or service xxxx application, or
copyright registration or copyright application included in the
Owned Intellectual Property is held by assignment, the assignment
has been duly recorded with the governmental authority from which
the patent or registration issued or before which the application
or application for registration is pending. The Company and its
Subsidiaries have taken all actions necessary to maintain and
protect the Owned Intellectual Property Rights and their rights
in the Licensed Intellectual Property Rights, including payment
of applicable maintenance fees and filing of applicable
statements of use.
(g) To the Knowledge of the Company, no Person has
infringed, misappropriated or otherwise violated any Owned
Intellectual Property Right or Licensed Intellectual Property
Right. The Company and its Subsidiaries have taken reasonable
steps in accordance with normal industry practice to maintain the
confidentiality of all confidential Intellectual Property Rights.
Except as disclosed in Schedule 5.19, to the Knowledge of the
Company, none of the Intellectual Property Rights of the Company
or any Subsidiary that are material to the business or operation
of the Company or any Subsidiary and the value of which to the
Company or any Subsidiary is contingent upon maintaining the
confidentiality thereof, has been disclosed other than to
employees, representatives and agents of the Company or any
Subsidiary all of whom are bound by written confidentiality
agreements substantially in the form previously disclosed to
Parent.
(h) Except as disclosed in Schedule 5.19 and except for
indemnification obligations, there are no liabilities or
obligations of the Company or any of its Subsidiaries of any kind
whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition,
situation or set of circumstances that would reasonably be
expected to result in such a liability, arising out of a material
license agreement that the Company or any of its Subsidiaries has
entered into.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company that:
Section 6.01. Corporate Existence and Power. Each of
Parent and Merger Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and
all governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now conducted,
except for those licenses, authorizations, permits, consents and
approvals the absence of which would not have, individually or in
the aggregate, a Material Adverse Effect on Parent. Parent has
heretofore delivered to the Company true and complete copies of
the certificates of incorporation and bylaws of Parent and Merger
Subsidiary as currently in effect. Since the date of its
incorporation, Merger Subsidiary has not engaged in any
activities other than in connection with or as contemplated by
this Agreement or in connection with arranging any financing
required to consummate the transactions contemplated hereby.
Section 6.02. Corporate Authorization. The execution,
delivery and performance by Parent and Merger Subsidiary of this
Agreement and the consummation by Parent and Merger Subsidiary of
the transactions contemplated hereby are within the corporate
powers of Parent and Merger Subsidiary and have been duly
authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of each of Parent and
Merger Subsidiary.
Section 6.03. Governmental Authorization. The
execution, delivery and performance by Parent and Merger
Subsidiary of this Agreement and the consummation by Parent and
Merger Subsidiary of the transactions contemplated hereby require
no action by or in respect of, or filing with, any governmental
body, agency, official or authority, domestic, foreign or
supranational, including, without limitation, any filing under
the HSR Act, other than (i) the filing of a certificate of merger
with respect to the Merger with the Delaware Secretary of State
and appropriate documents with the relevant authorities of other
states in which Parent is qualified to do business, (ii) filings
or consents under the Act, if Parent assigns, delegates or
otherwise transfers its rights or obligations under this
Agreement pursuant to Section 12.05(b)(i), (iii) compliance with
any applicable requirements of the 1933 Act, the 1934 Act and any
other applicable securities or takeover laws, whether state or
foreign, (iv) compliance with the rules and regulations of the
The Nasdaq Stock Market, Inc. and (v) any actions or filings the
absence of which could not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on
Parent or materially to impair the ability of Parent and Merger
Subsidiary to consummate the transactions contemplated by this
Agreement.
Section 6.04. Non-contravention. The execution,
delivery and performance by Parent and Merger Subsidiary of this
Agreement and the consummation by Parent and Merger Subsidiary of
the transactions contemplated hereby do not and will not (i)
contravene, conflict with, or result in any violation or breach
of any provision of the certificate of incorporation or bylaws of
Parent or Merger Subsidiary, or (ii) assuming compliance with the
matters referred to in Section 6.03, contravene, conflict with,
or result in any violation or breach of any provision of any law,
rule, regulation, judgment, injunction, order or decree, except
for such contraventions, conflicts and violations referred to in
clause (ii) that would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on
Parent or materially to impair the ability of Parent and Merger
Subsidiary to consummate the transactions contemplated by this
Agreement.
Section 6.05. Disclosure Documents. (a) The information
with respect to Parent and any of its Subsidiaries that Parent
furnishes to the Company in writing specifically for use in any
Company Disclosure Document will not contain any untrue statement
of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading (i) in
the case of the Company Proxy Statement, as supplemented or
amended, if applicable, at the time such Company Proxy Statement
or any amendment or supplement thereto is first mailed to
stockholders of the Company and at the time such stockholders
vote on adoption of this Agreement, and (ii) in the case of any
Company Disclosure Document other than the Company Proxy
Statement, at the time of the filing of such Company Disclosure
Document or any supplement or amendment thereto and at the time
of any distribution or dissemination thereof.
(b) The Schedule TO, when filed, and the Offer Documents,
when distributed or disseminated, will comply as to form in all
material respects with the applicable requirements of the 1934
Act and, at the time of such filing, at the time of such
distribution or dissemination and at the time of consummation of
the Offer, will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements made therein, in the light of the circumstances under
which they were made, not misleading; provided that this
representation and warranty will not apply to statements or
omissions included in the Schedule TO and the Offer Documents
based upon information furnished to Parent or Merger Subsidiary
in writing by the Company specifically for use therein.
Section 6.06. Finders' Fees. There is no investment
banker, broker, finder or other intermediary that has been
retained by or is authorized to act on behalf of Parent who might
be entitled to any fee or commission from the Company or any of
its Affiliates upon consummation of the transactions contemplated
by this Agreement.
Section 6.07. Financing. Parent has, or will have prior
to the expiration of the Offer, sufficient cash, available lines
of credit or other sources of immediately available funds to
enable it to purchase all of the Shares outstanding and to pay
all related fees and expenses pursuant to the Offer.
Section 6.08. Activities In The Netherlands. None of
Parent, Merger Subsidiary or Symphony Technology Group II-A, a
Delaware limited partnership (the "Fund"), conduct any activities
in The Netherlands; provided that this representation and
warranty will not apply to any of the portfolio companies of the
Fund.
ARTICLE 7
COVENANTS OF THE COMPANY
The Company agrees that:
Section 7.01. Conduct of the Company. From the date
hereof until the Effective Time, the Company and its Subsidiaries
shall conduct their business in the ordinary course consistent
with past practice and shall use their best efforts to preserve
intact their business organizations and relationships with third
parties and to keep available the services of their present
officers and employees. Without limiting the generality of the
foregoing, from the date hereof until the Effective Time:
(a) the Company shall not adopt or propose any change to
its certificate of incorporation or bylaws;
(b) the Company shall not, and shall not permit any of its
Subsidiaries to, merge or consolidate with any other Person or
acquire a material amount of stock or assets of any other Person;
(c) the Company shall not, and shall not permit any of its
Subsidiaries to, sell, lease, license or otherwise dispose of any
material Subsidiary or material amount of assets, securities or
property except (i) pursuant to existing contracts or
commitments, (ii) in the ordinary course consistent with past
practice or (iii) with the written consent of Parent, which shall
not be unreasonably withheld or delayed, the sale, exchange, or
disposition of assets of (by means of a disposition of assets,
stock, merger or otherwise) of Abalon and IMI NIK;
(d) the Company shall not, and shall not permit any of its
Subsidiaries to, (i) take any action that would result in (x) any
of the representations and warranties of the Company hereunder
that are qualified as to materiality becoming untrue or (y) any
of such representations and warranties that are not so qualified
becoming untrue in any material respect or (ii) omit to take any
action necessary to prevent any such representation or warranty
from being inaccurate in any material respect at any such time;
and
(e) the Company shall not, and shall not permit any of its
Subsidiaries to, agree or commit to do any of the foregoing.
Section 7.02. Stockholder Meeting; Proxy Material. The
Company shall cause a meeting of its stockholders (the "Company
Stockholder Meeting") to be duly called and held as soon as
reasonably practicable after consummation of the Offer for the
purpose of voting on the approval and adoption of this Agreement
and the Merger, unless Delaware Law does not require a vote of
stockholders of the Company for consummation of the Merger.
Subject to Section 7.04(b), the Board of Directors of the Company
shall recommend approval and adoption of this Agreement and the
Merger by the Company's stockholders. In connection with such
meeting, the Company shall (i) promptly prepare and file with the
SEC, shall use its best efforts to have cleared by the SEC and
shall thereafter mail to its stockholders as promptly as
practicable the Company Proxy Statement and all other proxy
materials for such meeting, (ii) use its best efforts to obtain
the necessary approvals by its stockholders of this Agreement and
the transactions contemplated hereby and (iii) otherwise comply
with all legal requirements applicable to such meeting.
Section 7.03. Access to Information. From the date
hereof until the Effective Time and subject to applicable law and
the Confidentiality Agreement dated as of August 20, 2002 between
the Company and Symphony Technology Group (the "Confidentiality
Agreement"), the Company shall (i) give Parent, its counsel,
financial advisors, auditors and other authorized representatives
full access to the offices, properties, books and records of the
Company and the Subsidiaries, (ii) furnish to Parent, its
counsel, financial advisors, auditors and other authorized
representatives such financial and operating data and other
information as such Persons may reasonably request, (iii)
instruct the employees, counsel, financial advisors, auditors and
other authorized representatives of the Company and its
Subsidiaries to cooperate with Parent in its investigation of the
Company and its Subsidiaries and (iv) shall notify and consult
with Parent regularly regarding any discussions, developments or
proposed resolutions of any liabilities, including, without,
limitation any employee liabilities, such as severance or pension
benefits, and shall advise Parent prior to entering into any
agreement as to the amount of such liabilities or any commitment
as to payment of such liabilities. Any investigation pursuant to
this Section shall be conducted in such manner as not to
interfere unreasonably with the conduct of the business of the
Company and its Subsidiaries. No information or knowledge
obtained by Parent in any investigation pursuant to this Section
shall affect or be deemed to modify any representation or
warranty made by the Company hereunder.
Section 7.04. No Solicitation; Other Offers. (a)
Neither the Company nor any of its Subsidiaries shall, nor shall
the Company or any of its Subsidiaries authorize or permit any of
its or their officers, directors, employees, investment bankers,
attorneys, accountants, consultants or other agents or advisors
to, directly or indirectly, (i) solicit, initiate or encourage
the submission of any Acquisition Proposal, (ii) enter into or
participate in any discussions or negotiations with, furnish any
information relating to the Company or any of its Subsidiaries or
afford access to the business, properties, assets, books or
records of the Company or any of its Subsidiaries to, otherwise
cooperate in any way with, or knowingly assist, knowingly
participate in, or knowingly encourage any effort by any Third
Party that is seeking to make, or has made, an Acquisition
Proposal, (iii) grant any waiver or release under any standstill
or similar agreement with respect to any class of equity
securities of the Company or any of its Subsidiaries or (iv)
enter into any agreement with respect to an Acquisition Proposal.
(b) Notwithstanding the foregoing, the Board of
Directors, directly or indirectly through advisors, agents or other
intermediaries, may (i) engage in negotiations or discussions
with any Third Party that, subject to the Company's compliance
with Section 7.04(a), has made a bona fide Acquisition Proposal
that the Board of Directors reasonably believes will lead to a
Superior Proposal, (ii) furnish to such Third Party nonpublic
information relating to the Company or any of its Subsidiaries
pursuant to a confidentiality agreement with terms no less
favorable to the Company than those contained in the
Confidentiality Agreement (a copy of which shall be provided for
informational purposes only to Parent), (iii) following receipt
of such Acquisition Proposal, fail to make, withdraw, or modify
in a manner adverse to Parent its recommendation to its
stockholders referred to in Sections 2.02 and/or 7.02 hereof
and/or (iv) take any non-appealable, final action that any court
of competent jurisdiction orders the Company to take, but in each
case referred to in the foregoing clauses (i) through (iii) only
if the Board of Directors determines in good faith by a majority
vote, after consultation with Xxxxxxxxxx, Xxxxx and Xxxxxxxx,
LLP, outside legal counsel to the Company, and Broadview
International Limited, financial advisor to the Company, that
such action is consistent with its fiduciary duties under
applicable law. Nothing contained herein shall prevent the Board
of Directors from complying with Rule 14e-2(a) under the 1934 Act
with regard to an Acquisition Proposal.
(c) The Board of Directors shall not take any of the
actions referred to in clauses (i) through (iii) of the preceding
subsection unless the Company shall have delivered to Parent a
prior written notice advising Parent that it intends to take such
action, and the Company shall continue to advise Parent after
taking such action. In addition, the Company shall notify Parent
promptly (but in no event later than 24 hours) after receipt by
the Company (or any of its advisors) of any Acquisition Proposal,
any indication that any Third Party is considering making an
Acquisition Proposal or any request for information relating to
the Company or any of its Subsidiaries or for access to the
business, properties, assets, books or records of the Company or
any of its Subsidiaries by any Third Party that may be
considering making, or has made, an Acquisition Proposal. The
Company shall provide such notice orally and in writing and shall
identify the Third Party making, and the terms and conditions of,
any such Acquisition Proposal, indication or request. The
Company shall keep Parent fully informed, on a current basis, of
the status and material details of any such Acquisition Proposal,
indication or request. The Company shall, and shall cause its
Subsidiaries and the advisors, employees and other agents of the
Company and any of its Subsidiaries to, cease immediately and
cause to be terminated any and all existing activities,
discussions and negotiations, if any, with any Third Party
conducted prior to the date hereof with respect to any
Acquisition Proposal and shall use its reasonable best efforts to
cause any such Party (or its agents or advisors) in possession of
confidential information about the Company that was furnished by
or on behalf of the Company to return or destroy all such
information.
"Superior Proposal" means any bona fide, unsolicited
written Acquisition Proposal for at least a majority of the
outstanding Shares (excluding Restricted Stock), on terms that
the Board of Directors determines in good faith by a majority
vote, after considering the advice of Broadview International
Limited or another financial advisor of nationally recognized
reputation and taking into account all the terms and conditions
of the Acquisition Proposal, including any break-up fees, expense
reimbursement provisions and conditions to consummation, are more
favorable and provide greater value to the Company's stockholders
than as provided hereunder and for which financing, to the extent
required, is then fully committed or reasonably determined to be
available by the Board of Directors.
Section 7.05. Notices of Certain Events. The Company
shall promptly notify Parent of:
(a) any notice or other communication from any Person
alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental
or regulatory agency or authority in connection with the
transactions contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or
proceedings commenced or, to its Knowledge, threatened against,
relating to or involving or otherwise affecting the Company or
any of its Subsidiaries that, if pending on the date of this
Agreement, would have been required to have been disclosed
pursuant to Section 5.12, 5.13, 5.16 or 5.17, as the case may be,
or that relate to the consummation of the transactions
contemplated by this Agreement.
Section 7.06. FIRPTA Certificate. Prior to the
Effective Time, the Company shall deliver to Parent a
certification pursuant to Treasury Regulations Sections 1.897-
2(h) and 1.1445-2(c), signed by the Company and dated not more
than 15 days prior to the Closing Date, to the effect that the
Company is not, nor has it been at any time within five (5) years
of the date of the certification, a "United States real property
holding corporation" as defined in Section 897 of the Code.
Section 7.07. Employment Related Obligations. The
Company shall perform its obligations under the letter agreement
dated November 1, 2002 between the Company and Stig Durlow. Any
failure to perform its obligations thereunder shall be deemed a
material breach of the Company's obligations under this
Agreement.
ARTICLE 8
COVENANTS OF PARENT
Parent agrees that:
Section 8.01. Obligations of Merger Subsidiary. Parent
shall take all action necessary to cause Merger Subsidiary to
perform its obligations under this Agreement and to consummate
the Offer and the Merger on the terms and conditions set forth in
this Agreement.
Section 8.02. Voting of Shares. Parent shall vote all
Shares beneficially owned by it or any of its Subsidiaries in
favor of adoption of this Agreement at the Company Stockholder
Meeting.
Section 8.03. Director and Officer Liability. Parent
shall cause the Surviving Corporation, and the Surviving
Corporation hereby agrees, to do the following:
(a) For six years after the Effective Time, the
Surviving Corporation shall indemnify and hold harmless the present
and former officers and directors of the Company (each an
"Indemnified Person") in respect of acts or omissions occurring
at or prior to the Effective Time (including acts or omissions in
connection with this Agreement, including without limitation the
actions taken by the Company pursuant to Section 3.05
irrespective of whether or not such former officers and directors
were the officers and directors of the Company at the time such
action was taken, and the Securities Litigation) to the fullest
extent permitted by Delaware Law or any other applicable laws or
provided under the Company's certificate of incorporation and
bylaws in effect on the date hereof; provided that such
indemnification shall be subject to any limitation imposed from
time to time under applicable law.
(b) The certificate of incorporation and bylaws of the
Surviving Corporation shall include provisions for exculpation of
director and officer liability and indemnification on the same
basis as set forth in the Company's certificate of incorporation
and bylaws in effect on the date hereof. For six years after the
Effective Time, the Surviving Corporation shall maintain in
effect the provisions in its certificate of incorporation and
bylaws providing for indemnification of Indemnified Persons, with
respect to the facts or circumstances occurring at or prior to
the Effective Time, to the fullest extent permitted from time to
time under Delaware Law, which provisions shall not be amended
except as required by applicable law or except to make changes
permitted by applicable law that would enlarge the scope of the
Indemnified Persons' indemnification rights thereunder.
(c) For six years after the Effective Time, the Surviving
Corporation shall provide officers' and directors' liability
insurance, to the extent such insurance can be obtained by the
Surviving Corporation using its reasonable best efforts, in
respect of acts or omissions occurring prior to the Effective
Time, including without limitation the actions taken by the
Company pursuant to Section 3.05 irrespective of whether or not
such former officers and directors were the officers and
directors of the Company at the time such action was taken,
covering each such Indemnified Person currently covered by the
Company's officers' and directors' liability insurance policy on
terms with respect to coverage and amount no less favorable than
those of such policy in effect on the date hereof; provided that,
in satisfying its obligation under this Section 8.03(c), the
Surviving Corporation shall not be obligated to pay premiums in
excess of an aggregate amount of $750,000; and provided further
that at the Effective Time, the Surviving Corporation shall
deposit $300,000 with an escrow agent reasonably acceptable to
Parent pursuant to terms and conditions of an escrow agreement
reasonably acceptable to Parent, which $300,000 shall be used by
the Surviving Corporation solely to provide for such officers'
and directors' liability insurance in accordance with the
obligations of the Surviving Corporation under this Section and
as agreed to by Xxx Xxxxxxxx.
(d) If Parent, the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any
other Person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger, or (ii)
transfers or conveys all or substantially all of its properties
and assets to any Person, then, and in each such case, to the
extent necessary, proper provision shall be made so that the
successors and assigns of Parent or the Surviving Corporation, as
the case may be, shall assume the obligations set forth in this
Section 8.03.
(e) The rights of each Indemnified Person under this
Section 8.03 shall be in addition to any rights such Person may
have under the certificate of incorporation or bylaws of the
Company or any of its Subsidiaries, under Delaware Law or any
other applicable laws or under any agreement of any Indemnified
Person with the Company or any of its Subsidiaries. These rights
shall survive consummation of the Merger and are intended to
benefit, and shall be enforceable by, each Indemnified Person.
(f) The Indemnified Person shall be entitled to control the
defense of any action, suit, investigation or proceeding with
counsel of its own choosing reasonably acceptable to the
Surviving Corporation and the Surviving Corporation shall
cooperate in the defense thereof, provided that the Surviving
Corporation shall not be liable for the fees of more than one
counsel for all Indemnified Persons, other than local counsel,
unless a conflict of interest shall be caused thereby, and
provided further that the Surviving Corporation shall not be
liable for any settlement effected without its written consent
(which consent shall not be unreasonably withheld).
(g) The Surviving Corporation shall pay on an as-incurred
basis the fees and expenses of such Indemnified Person (including
the reasonable fees and expenses of counsel) in advance of the
final disposition of any action, suit, proceeding or
investigation that is the subject of the right to
indemnification, provided that such Person shall undertake to
reimburse the Surviving Corporation for all amounts so advanced
if a court of competent jurisdiction determines, by a final,
nonappealable order, that such Person is not entitled to
indemnification.
ARTICLE 9
COVENANTS OF PARENT AND THE COMPANY
The parties hereto agree that:
Section 9.01. Best Efforts. Subject to the terms and
conditions of this Agreement, the Company and Parent shall use
their best efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate the
transactions contemplated by this Agreement, including (i)
preparing and filing as promptly as practicable with any
governmental authority or other third party all documentation to
effect all necessary filings, notices, petitions, statements,
registrations, submissions of information, applications and other
documents and (ii) obtaining and maintaining all approvals,
consents, registrations, permits, authorizations and other
confirmations required to be obtained from any governmental
authority or other third party that are necessary, proper or
advisable to consummate the transactions contemplated by this
Agreement.
Section 9.02. Certain Filings. The Company and Parent
shall cooperate with one another (i) in connection with the
preparation of the Company Disclosure Documents and the Offer
Documents, (ii) in determining whether any action by or in
respect of, or filing with, any governmental body, agency,
official, or authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to
any material contracts, in connection with the consummation of
the transactions contemplated by this Agreement and (iii) in
taking such actions or making any such filings, furnishing
information required in connection therewith or with the Company
Disclosure Documents or the Offer Documents and seeking timely to
obtain any such actions, consents, approvals or waivers.
Section 9.03. Public Announcements. Parent and the
Company shall consult with each other before issuing any press
release or making any other public statement with respect to this
Agreement or the transactions contemplated hereby and, except as
may be required by applicable law, order of a court of competent
jurisdiction or any listing agreement with or rule of any
national securities exchange, shall not issue any such press
release or make any such other public statement prior to such
consultation.
Section 9.04. Further Assurances. At and after the
Effective Time, the officers and directors of the Surviving
Corporation shall be authorized to execute and deliver, in the
name and on behalf of the Company or Merger Subsidiary, any
deeds, bills of sale, assignments or assurances and to take and
do, in the name and on behalf of the Company or Merger
Subsidiary, any other actions and things to vest, perfect or
confirm of record or otherwise in the Surviving Corporation any
and all right, title and interest in, to and under any of the
rights, properties or assets of the Company acquired or to be
acquired by the Surviving Corporation as a result of, or in
connection with, the Merger.
Section 9.05. Merger Without Meeting of Stockholders.
If Parent, Merger Subsidiary or any other Subsidiary of Parent
shall acquire at least 90% of the outstanding Shares pursuant to
the Offer or otherwise, the parties hereto agree to take all
necessary and appropriate action to cause the Merger to be
effective as soon as practicable after the acceptance for payment
and purchase of Shares pursuant to the Offer without a meeting of
stockholders of the Company in accordance with Section 253 of
Delaware Law.
ARTICLE 10
CONDITIONS TO THE MERGER
Section 10.01. Conditions to Obligations of Each Party.
The obligations of the Company, Parent and Merger Subsidiary to
consummate the Merger are subject to the satisfaction of the
following conditions:
(a) if required by Delaware Law, this Agreement shall have
been approved and adopted by the stockholders of the Company in
accordance with such Law;
(b) no laws shall have been adopted or promulgated, and no
temporary restraining order, preliminary or permanent injunction
or other order issued by a court or other governmental entity of
competent jurisdiction shall be in effect, that (i) has the
effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger or (ii) otherwise, individually or in
the aggregate, would have a Material Adverse Effect on Parent
(including the Surviving Corporation and its Subsidiaries), after
giving effect to the Merger;
(c) Merger Subsidiary shall have purchased Shares pursuant
to the Offer; and
(d) all actions by or in respect of, or filings with, any
governmental body, agency, official or authority, domestic,
foreign or supranational, required to permit the consummation of
the Merger, including, without limitation, under the Act, shall
have been taken, made or obtained.
Section 10.02. Conditions to the Obligations of Parent
and Merger Subsidiary. The obligations of Parent and Merger
Subsidiary to consummate the Merger are subject to the
satisfaction of the following further condition: the Company
shall have performed or complied with all agreements and
covenants required to be performed by it under this Agreement at
or prior to the Effective Time that are qualified as to a Company
Material Adverse Effect and shall have performed or complied in
all material respects with all other agreements and covenants
required to be performed by it under this Agreement at or prior
to the Closing Date that are not so qualified, and Parent shall
have received a certificate of the chief executive officer and
the chief financial officer of the Company to such effect.
ARTICLE 11
TERMINATION
Section 11.01. Termination. This Agreement may be
terminated and the Merger may be abandoned at any time prior to
the Effective Time (notwithstanding any approval of this
Agreement by the stockholders of the Company):
(a) by mutual written agreement of the Company and Parent;
(b) by either the Company or Parent, if:
(i) the Offer has not been consummated on or before
January 31, 2003; provided that the right to terminate this
Agreement pursuant to this Section 11.01(b)(i) shall not be
available to any party whose breach of any provision of
this Agreement results in the failure of the Offer to be
consummated by such time; or
(ii) (A) there shall be any law or regulation that
makes acceptance for payment of, and payment for, the
Shares pursuant to the Offer or consummation of the Merger
illegal or otherwise prohibited or (B) any judgment,
injunction, order or decree of any court or governmental
body having competent jurisdiction enjoining Merger
Subsidiary from accepting for payment of, and paying for,
the Shares pursuant to the Offer or the Company or Parent
from consummating the Merger is entered and such judgment,
injunction, order or decree shall have become final and
nonappealable;
(iii) prior to the acceptance for payment of the
Shares under the Offer, the Board of Directors shall have
failed to make, withdrawn, or modified in a manner adverse
to Parent, its approval or recommendation of this
Agreement, the Offer or the Merger, as permitted by Section
7.04(b)(iii); provided that the Company shall pay any
amounts due pursuant to Section 12.04(c) and Section
12.04(d) in accordance with the terms, and at the times,
specified therein, and provided, further, that, in the case
of any termination by the Company, (i) the Company notifies
Parent, in writing and at least 72 hours prior to such
termination, of its intention to terminate this Agreement
and to enter into a binding written agreement concerning an
Acquisition Proposal that constitutes a Superior Proposal
of the nature described in Section 7.04(c), attaching the
most current version of such agreement (or a description of
all material terms and conditions thereof), and (ii) Parent
does not make, within 72 hours of receipt of such written
notification, an offer that the Board of Directors
determines in good faith, after consultation with its
financial advisors, is at least as favorable to the
shareholders of the Company as such Superior Proposal, it
being understood that the Company shall not enter into any
such binding agreement during such 72-hour period. Parent
acknowledges and agrees that any information delivered to
it in accordance with the foregoing shall be accorded
confidential treatment in accordance with the
Confidentiality Agreement.
The party desiring to terminate this Agreement pursuant to this
Section 11.01 (other than pursuant to Section 11.01(a)) shall
give notice of such termination to the other party.
Section 11.02. Effect of Termination. If this Agreement
is terminated pursuant to Section 11.01, this Agreement shall
become void and of no effect with no liability on the part of any
party (or any stockholder, director, officer, employee, agent,
consultant or representative of such party) to the other party
hereto; provided that, if such termination shall result from the
willful (i) failure of either party to fulfill a condition to the
performance of the obligations of the other party or (ii) failure
of either party to perform a covenant hereof, such party shall be
fully liable for any and all liabilities and damages incurred or
suffered by the other party as a result of such failure. The
provisions of Sections 5.14, 6.06, 12.04, 12.06, 12.07 and 12.08
shall survive any termination hereof pursuant to Section 11.01.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including facsimile transmission) and shall be given,
if to Parent or Merger Subsidiary, to:
Xxxxx Xxxxxx
Symphony Technology Management LLC
0000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxx
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
if to the Company, to:
Xxx Xxxxxxxxx
Industri-Matematik International Corp.
c/o Industri-Matematik American Operations, Inc.
000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx
Xxxxxxxxxx Xxxxx & Xxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
or to such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the other parties
hereto. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5 p.m. on a Business Day in the
place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the
next succeeding Business Day in the place of receipt.
Section 12.02. Survival of Representations and
Warranties. The representations and warranties and agreements
contained herein and in any certificate or other writing
delivered pursuant hereto shall not survive the Effective Time,
except for those agreements contained herein (including in
Section 8.03) and any other agreement that by their terms apply
or are to be performed in whole or in part after the Effective
Time.
Section 12.03. Amendments; No Waivers. (a) Any
provision of this Agreement may be amended or waived prior to the
Effective Time if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each party
to this Agreement or, in the case of a waiver, by each party
against whom the waiver is to be effective; provided that, after
the adoption of this Agreement by the stockholders of the Company
and without their further approval, no such amendment or waiver
shall reduce the amount or change the kind of consideration to be
received in exchange for the Shares.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 12.04. Expenses. (a) Except as otherwise
provided in this Section, all costs and expenses incurred in
connection with this Agreement shall be paid by the party
incurring such cost or expense.
(b) The Company represents and warrants to Parent that its
good faith estimate of the costs and expenses expected to be
incurred by it in connection with this Agreement is $500,000 (the
"Estimated Cost"). The Company agrees to use its reasonable best
efforts not to exceed the Estimated Cost.
(c) Upon any termination of this Agreement for any reason
(other than a termination (x) that would not have occurred but
for the failure of Parent or Merger Subsidiary to fulfill its or
their obligations hereunder or (y) pursuant to Section
11.01(b)(i) as a result of a condition in Annex I(i)(B) not
having been satisfied), the Company shall (i) pay to Parent (by
wire transfer of immediately available funds) a fee of $225,000,
no later than two Business Days after such termination, and (ii)
reimburse Parent and its Affiliates (by wire transfer of
immediately available funds) for 100% of their reasonable out-of-
pocket fees and expenses (including reasonable fees and expenses
of their counsel) up to $500,000 actually incurred by any of them
in connection with this Agreement and the transactions
contemplated hereby, including up to $100,000 for the arrangement
of, obtaining the commitment to provide or obtaining any
financing for such transactions, no later than two Business Days
after evidence of such reasonable out-of-pocket fees and expenses
shall have been provided to the Company.
(d) If this Agreement was terminated as set forth in
Section 12.04(c) and thereafter an Event (as hereinafter defined)
occurs within 9 months of such termination, the Company shall (i)
pay to Parent (by wire transfer of immediately available funds)
a fee of $225,000, no later than two Business Days after the
occurrence of such Event, and (ii) reimburse Parent and its
Affiliates (by wire transfer of immediately available funds) for
100% of their reasonable out-of-pocket fees and expenses
(including reasonable fees and expenses of their counsel) up to
$1,000,000, less the amount paid pursuant to Section
12.04(c)(ii), actually incurred by any of them in connection with
this Agreement and the transactions contemplated hereby,
including up to $100,000 for the arrangement of, obtaining the
commitment to provide or obtaining any financing for such
transactions, no later than two Business Days after evidence of
such reasonable out-of-pocket fees and expenses shall have been
provided to the Company.
"Event" means any of the following events whereby
stockholders of the Company receive, pursuant to any such event,
cash, securities or other consideration having an aggregate
value, when taken together with the value of any securities of
the Company or its Subsidiaries otherwise held by such
stockholders after such event, in excess of $0.35 per Share: (A)
the Company merges with or into, or is acquired, directly or
indirectly, by merger or otherwise by, a Third Party; (B) a Third
Party, directly or indirectly, acquires more than 50% of the
total assets of the Company and its Subsidiaries, taken as a
whole; (C) a Third Party, directly or indirectly, acquires more
than 50% of the outstanding Shares; or (D) the Company adopts or
implements a plan of liquidation, recapitalization or share
repurchase relating to more than 50% of the outstanding Shares or
an extraordinary dividend relating to more than 50% of the
outstanding Shares or 50% of the assets of the Company and its
Subsidiaries, taken as a whole.
(e) The Company acknowledges that the agreements contained
in this Section 12.04 are an integral part of the transactions
contemplated by this Agreement and that, without these
agreements, Parent and Merger Subsidiary would not enter into
this Agreement. Accordingly, if the Company fails promptly to
pay any amount due to Parent pursuant to this Section 12.04, it
shall also pay any costs and expenses incurred by Parent or
Merger Subsidiary in connection with a legal action to enforce
this Agreement that results in a judgment against the Company for
such amount.
(f) If any litigation arises between the parties hereto out
of the obligations of the parties under this Agreement or
concerning the meaning or interpretation of any provision
contained herein, the losing party shall pay the prevailing
party's costs and expenses of such litigation including, without
limitation, reasonable attorneys' fees.
Section 12.05. Binding Effect; Benefit; Assignment. (a)
The provisions of this Agreement shall be binding upon and,
except as provided in Section 8.03, shall inure to the benefit of
the parties hereto and their respective successors and assigns.
Except as provided in Section 8.03, no provision of this
Agreement is intended to confer any rights, benefits, remedies,
obligations or liabilities hereunder upon any Person other than
the parties hereto and their respective successors and assigns.
(b) No party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the
consent of each other party hereto, except that (i) Parent may
assign, delegate or otherwise transfer its rights or obligations
hereunder, in whole or from time to time in part, to any of its
Affiliates that is organized under Irish law, (ii) Parent may
assign, delegate or otherwise transfer its rights or obligations
hereunder, in whole or from time to time in part, to any Person
pursuant to Section 12.05(c) below and (iii) Parent or Merger
Subsidiary may transfer or assign, in whole or from time to time
in part, to one or more of its Affiliates, the right to purchase
all or a portion of the Shares pursuant to the Offer, but no such
transfer or assignment shall relieve Parent or Merger Subsidiary
of its obligations under the Offer or prejudice the rights of
tendering stockholders to receive payment for Shares validly
tendered and accepted for payment pursuant to the Offer.
(c) If an Affiliate of Parent that is organized under
Irish law to whom Parent has assigned, delegated or otherwise
transferred its rights or obligations hereunder in accordance
with Section 12.05(b) cannot obtain all approvals, consents,
registrations, permits, authorizations or other confirmations
required to be obtained from any governmental authority or other
third party that are necessary to consummate the transactions
contemplated by this Agreement under the Act, Parent shall form
another Person or assign, delegate or otherwise transfer its
rights or obligations hereunder to a Person in another
jurisdiction in which the transactions contemplated by this
Agreement can be consummated without the obtaining of such
approvals, consents, registrations, permits, authorizations or
other confirmations or in which such approvals, consents,
registrations, permits, authorizations or other confirmations can
be obtained.
Section 12.06. Governing Law. This Agreement shall be
governed by and construed in accordance with the law of the State
of Delaware, without regard to the conflicts of law rules of such
state.
Section 12.07. Jurisdiction. Any suit, action or
proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby may be brought in any
federal court located in the State of Delaware or any Delaware
state court, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient form. Process in any
such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in
Section 12.01 shall be deemed effective service of process on
such party.
Section 12.08. WAIVER OF JURY TRIAL. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.09. Counterparts; Effectiveness. This
Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other
parties hereto.
Section 12.10. Entire Agreement. This Agreement and the
Confidentiality Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings,
both oral and written, between the parties with respect to the
subject matter of this Agreement.
Section 12.11. Captions. The captions herein are
included for convenience of reference only and shall be ignored
in the construction or interpretation hereof.
Section 12.12. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void,
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially
adverse to any party. Upon such a determination, the parties
shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible
in an acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
Section 12.13. Specific Performance. The parties hereto
agree that irreparable damage would occur if any provision of
this Agreement were not performed in accordance with the terms
hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof
in any federal court located in the State of Delaware or any
Delaware state court, in addition to any other remedy to which
they are entitled at law or in equity.
Section 12.14. Breach. A breach of the obligations of
the Fund under the letter dated November 2, 2002 among the Fund,
Xxxxxx Xxxxxxxx and the Company shall be deemed a breach of the
obligations of Parent and Merger Subsidiary hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
INDUSTRI-MATEMATIK
INTERNATIONAL CORP.
By: /s/ Xxx Xxxxxxxxx
--------------------------
Name: Xxx Xxxxxxxxx
Title: President and Chief
Executive Officer
STG
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief
Executive Officer
STG OMS ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
ANNEX I
Notwithstanding any other provision of the Offer, Merger
Subsidiary shall not be required to accept for payment or pay for
any Shares, and may terminate the Offer, if
(i) prior to the expiration date of the Offer,
(A) the Minimum Condition (as defined in the Merger
Agreement) shall not have been satisfied,
(B) no one of the following events has occurred:
(1) the Irish Minister for Enterprise Trade
and Employment having stated in writing that she has
decided not to make an order under Section 9 of the
Act in relation to the proposed transactions
contemplated by the Merger Agreement;
(2) the Irish Minister for Enterprise Trade
and Employment having made an order under Section 9
of the Act in relation to the proposed transactions
contemplated by the Merger Agreement on terms
acceptable to Merger Subsidiary and Parent;
(3) the relevant period within the meaning
of Section 6 of the Act having elapsed without the
Minister having made an order under Section 9 of the
Act in relation to the proposed transactions
contemplated by the Merger Agreement; or
(ii) at any time on or after the date of the Merger
Agreement and prior to the expiration date of the Offer,
any of the following conditions exists:
(A) there shall be instituted or pending any action
or proceeding by any government or governmental authority
or agency or any other person, domestic, foreign or
supranational, before any court or governmental authority
or agency, domestic, foreign or supranational, (i)
challenging or seeking to make illegal, to delay materially
or otherwise directly or indirectly to restrain or prohibit
the making of the Offer, the acceptance for payment of or
payment for some or all of the Shares by Parent or Merger
Subsidiary or the consummation of the Merger, (ii) seeking
to obtain material damages or otherwise directly or
indirectly relating to the transactions contemplated by the
Offer or the Merger, (iii) seeking to restrain or prohibit
Parent's ownership or operation (or that of its Affiliates)
of all or any material portion of the business or assets of
the Company and its Subsidiaries, taken as a whole, or of
Parent and its Subsidiaries, taken as a whole, or to compel
Parent or any of its Affiliates to dispose of or hold
separate all or any material portion of the business or
assets of the Company and its Subsidiaries, taken as a
whole, or of Parent and its Subsidiaries, taken as a whole,
(iv) seeking to impose or confirm material limitations on
the ability of Parent, Merger Subsidiary or any of Parent's
other Affiliates effectively to exercise full rights of
ownership of the Shares, including the right to vote any
Shares acquired or owned by Parent, Merger Subsidiary or
any of Parent's other Affiliates on all matters properly
presented to the Company's stockholders, (v) seeking to
require divestiture by Parent, Merger Subsidiary or any of
Parent's other Affiliates of any Shares or (vi) otherwise,
in the reasonable judgment of Parent, being likely to have
a Material Adverse Effect on the Company or Parent; or
(B) there shall have been any action taken, or any
statute, rule, regulation, injunction, order or decree
enacted, enforced, promulgated, issued or deemed applicable
to the Offer or the Merger, by any court, government or
governmental authority or agency, domestic, foreign or
supranational, other than the application of the waiting
period provisions of the HSR Act to the Offer or the
Merger, that, in the reasonable judgment of Parent, is
likely, directly or indirectly, to result in any of the
consequences referred to in clauses (i) through (vi) of
paragraph (a) above; or
(C) any change shall have occurred or been
threatened (or any development shall have occurred or been
threatened involving a prospective change) in the business,
assets, liabilities, financial condition, capitalization,
operations or results of operations of the Company or any
of its Subsidiaries that, in the reasonable judgment of
Parent, is or is likely to have a Material Adverse Effect
on the Company; or
(D) the Company shall have breached or failed to
perform in all material respects any of its obligations
under the Merger Agreement, or any of the representations
and warranties of the Company contained in the Merger
Agreement shall not be true in any material respect when
made or at any time prior to the consummation of the Offer
as if made at and as of such time (it being understood that
where any such representation and warranty already includes
a material adverse effect or materiality exception, no
further materiality exception is to be permitted hereby);
or
(E) the Merger Agreement shall have been terminated
in accordance with its terms;
which, in the reasonable judgment of Parent in any such case, and
regardless of the circumstances (including any action or omission
by Parent) giving rise to any such condition, makes it
inadvisable to proceed with such acceptance for payment or
payment.
ANNEX II
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
INDUSTRI-MATEMATIK INTERNATIONAL CORP.
* * * * *
FIRST: The name of the Corporation is Industri-Matematik
International Corp.
SECOND: The name and address of its registered agent and
registered office in the State of Delaware is Industri-Matematik
International Corp., Xxxxx 000, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware as the
same exists or may hereafter be amended ("Delaware Law").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 90,000,000,
consisting of 75,00,000 shares of Common Stock, par value $0.01
per share (the "Common Stock"), and 15,000,000 shares of
Preferred Stock, par value $0.01 per share (the "Preferred
Stock").
The Board of Directors is hereby empowered to authorize by
resolution or resolutions from time to time the issuance of one
or more classes or series of Preferred Stock and to fix the
designations, powers, preferences and relative, participating,
optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to each
such class or series of Preferred Stock and the number of shares
constituting each such class or series, and to increase or
decrease the number of shares of any such class or series to the
extent permitted by the Delaware Law, as amended from time to
time.
FIFTH: Each holder of Common Stock, as such, shall be
entitled to one vote for each share of Common Stock held of
record by such holder on all matters on which stockholders
generally are entitled to vote; provided, however, that, except
as otherwise required by law, holders of Common Stock, as such,
shall not be entitled to vote on any amendment to this
Certificate of Incorporation (including any Certificate of
Designations relating to any series of Preferred Stock) that
relates solely to the terms of one or more outstanding series of
Preferred Stock if the holders of such affected series are
entitled, either separately or together with the holders of one
or more other such series, to vote thereon pursuant to this
Certificate of Incorporation (including any Certificate of
Designations relating to any series of Preferred Stock) or
pursuant to Delaware Law.
SIXTH: The Board of Directors shall have the power to
adopt, amend or repeal the bylaws of the Corporation.
SEVENTH: Election of directors need not be by written
ballot unless the bylaws of the Corporation so provide.
EIGHTH: (1) To the fullest extent permitted by Delaware
Law as the same exists or as may hereafter be amended, a director
of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
(2) The Corporation shall indemnify to the fullest extent
permitted by law each person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether criminal, civil,
administrative or investigative (other than an action by or in
the right of the Corporation), by reason of the fact that he, his
testator or intestate is or was, or has agreed to become, a
director or officer of the Corporation or any predecessor of the
Corporation or serves or is or was serving, or has agreed to
serve, at the request of the Corporation or any predecessor to
the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee
benefit plan) (all such persons being referred to hereafter as an
"Indemnitee") or by reason of any action alleged to have been
taken or omitted in such capacity, against all expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any
appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful. Notwithstanding
anything to the contrary in this ARTICLE EIGHTH, except as set
forth in Section (8) below, the Corporation shall not indemnify
an Indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by the Indemnitee unless
the initiation thereof was approved by the Board of Directors of
the Corporation.
(3) Actions or Suits by or in the Right of the
Corporation. The Corporation shall indemnify any Indemnitee who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or
has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with,
another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan), or by reason of
any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorney's fees) and
amounts paid in settlement actually and reasonably incurred by
him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including
attorneys' fees) which the Court of Chancery of Delaware or such
other court shall deem proper.
(4) Indemnification for Expenses of Successful Party.
Notwithstanding the other provisions of this ARTICLE EIGHTH, to
the extent that an Indemnitee has been successful, on the merits
or otherwise, in defense of any action, suit or proceeding
referred to in Sections (2) and (3) of this ARTICLE EIGHTH, or
in defense of any claim, issue or matter therein, or on appeal
from any such action, suit or proceeding, he shall be
indemnified against all expenses (including attorneys' fees)
actually and reasonably incurred by him or on his behalf in
connection therewith. Without limiting the foregoing, if any
action, suit or proceeding is disposed of, on the merits or
otherwise (including a disposition without prejudice), without
(i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation,
(iii) a plea of guilty or nolo contendere by the Indemnitee, (iv)
an adjudication that the Indemnitee did not act in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and (v) with respect to any
criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the
Indemnitee shall be considered for the purposes hereof to have
been wholly successful with respect thereto.
(5) Notification and Defense of Claim. As a condition
precedent to his right to be indemnified, the Indemnitee must
notify the Corporation in writing as soon as practicable of any
action, suit, proceeding or investigation involving him for
which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the
Corporation is so notified, the Corporation will be entitled to
participate therein at its own expense and/or to assume the
defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the Corporation
to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal
or other expenses subsequently incurred by the Indemnitee in
connection with such claim, other than as provided below in this
Section (5). The Indemnitee shall have the right to employ his
own counsel in connection with such claim, but the ss and
expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at
the expense of the Indemnitee unless (i) the employment of
counsel by the Indemnitee has been authorized by the
Corporation, (ii) counsel to the Indemnitee shall have reasonably
concluded that there may be a conflict of interest or position
on any significant issue between the Corporation and the
Indemnitee in the conduct of the defense of such action or (iii)
the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the
fees and expenses of counsel for the Indemnitee shall be at the
expense of the Corporation, except as otherwise expressly
provided by this ARTICLE EIGHTH. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the
defense of any claim brought by or in the right of the
Corporation or as to which counsel for the Indemnitee shall have
reasonably made the conclusion provided for in clause (ii)
above.
(6) Advance of Expenses. Subject to the provisions of
Section (7) below, in the event that the Corporation does not
assume the defense pursuant to Section (5) of this ARTICLE EIGHTH
of any action, suit, proceeding or investigation of which the
Corporation receives notice under this ARTICLE EIGHTH, any
expenses (including attorneys' fees) incurred by an Indemnitee
in defending a civil or criminal action, suit, proceeding or
investigation or any appeal therefrom shall be paid by the
Corporation in advance of the final disposition of such matter,
provided, however, that the payment of such expenses incurred by
an Indemnitee in advance of the final disposition of such matter
shall be made only upon receipt of an undertaking by or on behalf
of the Indemnitee to repay all amounts so advanced in the event
that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in
this ARTICLE EIGHTH. Such undertaking may be accepted without
reference to the financial ability of such person to make such
repayment.
(7) Procedure for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to Section
(2), (3), (4) or (6) of this ARTICLE EIGHTH, the Indemnitee
shall submit to the Corporation a written request, including in
such request such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to
determine whether and to what extent the Indemnitee is entitled
to indemnification or advancement of expenses. Any such
indemnification or advancement of expenses shall be made
promptly, and in any event within 60 days after receipt by the
Corporation of the written request of the Indemnitee, unless with
respect to requests under Section (2), (3) or (6) the Corporation
determines within such 60-day period that the Indemnitee did not
meet the applicable standard of conduct set forth in Section (2)
or (3), as the case may be. Such determination shall be made in
each instance by (a) a majority vote of a quorum of directors of
the Corporation consisting of persons who are not at that time
parties to the action, suit or proceeding in question
("disinterested directors"), (b) if no such quorum is obtainable,
a majority vote of a committee of two or more disinterested
directors, (c) a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors,
voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action, suit
or proceeding in question, (d) independent legal counsel (who may
be regular legal counsel to the Corporation), or (e) a court of
competent jurisdiction.
(8) Remedies. The right to indemnification or advances
as granted by this ARTICLE EIGHTH shall be enforceable by the
Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no
disposition thereof is made within the 60-day period referred to
above in Section (7). Unless otherwise required by law, the
burden of proving that the Indemnitee is not entitled to
indemnification or advancement of expenses under this ARTICLE
EIGHTH shall be on the Corporation. Neither the failure of the
Corporation to have made a determination prior to the
commencement of such action that indemnification is proper in the
circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the
Corporation pursuant to Section (7) that the Indemnitee has not
met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the Indemnitee has not
met the applicable standard of conduct. The Indemnitee's
expenses (including attorneys' fees) incurred in connection with
successfully establishing his right to indemnification, in whole
or in part, in any such proceeding shall also be indemnified by
the Corporation.
(9) Subsequent Amendment. No amendment, termination or
repeal of ARTICLE EIGHTH or of the relevant provisions of the
Delaware Law or any other applicable laws shall affect or
diminish in any way the rights of any Indemnitee to
indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to
the final adoption of such amendment, termination or repeal.
(10) Other Rights. The indemnification and advancement of
expenses provided by this ARTICLE EIGHTH shall not be deemed
exclusive of any other rights to which an Indemnitee seeking
indemnification or advancement of expenses may be entitled under
any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in his
official capacity and as to action in any other capacity while
holding office for the Corporation, and shall continue as to an
Indemnitee who has ceased to be a director or officer, and shall
inure to the benefit of the estate, heirs, executors and
administrators of the Indemnitee. Nothing contained in this
ARTICLE EIGHTH shall be deemed to prohibit, and the Corporation
is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and
procedures different from those set forth in this ARTICLE EIGHTH.
In addition, the Corporation may, to the extent authorized from
time to time by its Board of Directors, grant indemnification
rights to other employees or agents of the Corporation or other
persons serving the Corporation and such rights may be equivalent
to, or greater or less than, those set forth in this ARTICLE
EIGHTH.
(11) Partial Indemnification. If an Indemnitee is
entitled under any provision of this ARTICLE EIGHTH to
indemnification by the Corporation for some or a portion of the
expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on
his behalf in connection with any action, suit, proceeding or
investigation and any appeal therefrom but not, however, for the
total amount thereof, the Corporation shall nevertheless
indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in
settlement to which the Indemnitee is entitled.
(12) Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan) against any
expense, liability or loss incurred by him in any such capacity,
or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware Law.
(13) Merger or Consolidation. If the Corporation is
merged into or consolidated with another corporation and the
Corporation is not the surviving corporation, the surviving
corporation shall assume the obligations of the Corporation under
this ARTICLE EIGHTH with respect to any action, suit, proceeding
or investigation arising out of or relating to any actions,
transactions or facts occurring prior to the date of such merger
or consolidation.
(14) Savings Clause. If this ARTICLE EIGHTH or any
portion thereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with any action, suit, proceeding or
investigation, whether civil, criminal or administrative,
including an action by or in the right of the Corporation, to
the fullest extent permitted by any applicable portion of this
ARTICLE EIGHTH that shall not have been invalidated and to the
fullest extent permitted by applicable law.
(15) Definition. Terms used herein and defined in Section
145(h) and Section 145(i) of the Delaware Law shall have the
respective meanings assigned to such terms in such Section 145(h)
and Section 145(i).
(16) Subsequent Legislation. If the Delaware Law is
amended after adoption of this ARTICLE EIGHTH to expand further
the indemnification permitted to Indemnitees, then the
Corporation shall indemnify such persons to the fullest extent
permitted by the Delaware Law, as so amended.
NINTH: The Corporation reserves the right to amend this
Certificate of Incorporation in any manner permitted by Delaware
Law and, with the sole exception of those rights and powers
conferred under the above ARTICLE EIGHTH, all rights and powers
conferred herein on stockholders, directors and officers, if any,
are subject to this reserved power.
