AGREEMENT AND PLAN OF MERGER by and among AMICAS, INC., AMICAS ACQUISITION CORP. and EMAGEON INC. Dated as of February 23, 2009
Exhibit 2.1
EXECUTION COPY
by and among
AMICAS, INC.,
AMICAS ACQUISITION CORP.
and
Dated as of February 23, 2009
Table of Contents
Page | ||||||||
ARTICLE I DEFINITIONS | 2 | |||||||
Section 1.1 | Certain Definitions | 2 | ||||||
Section 1.2 | Interpretation | 8 | ||||||
ARTICLE IA THE OFFER | 8 | |||||||
Section 1A.1 | The Offer | 8 | ||||||
Section 1A.2 | Company Consent; Schedule 14D-9 | 10 | ||||||
Section 1A.3 | Stockholder Lists | 11 | ||||||
Section 1A.4 | Directors | 11 | ||||||
Section 1A.5 | Top-Up Option | 12 | ||||||
ARTICLE II THE MERGER | 13 | |||||||
Section 2.1 | The Merger | 13 | ||||||
Section 2.2 | Effect of the Merger on Capital Stock | 14 | ||||||
Section 2.3 | Surrender of Certificates and Book-Entry Shares | 14 | ||||||
Section 2.4 | Dissenting Shares | 16 | ||||||
Section 2.5 | Treatment of Company Equity Awards | 17 | ||||||
Section 2.6 | Certificate of Incorporation and Bylaws | 18 | ||||||
Section 2.7 | Directors and Officers of Surviving Corporation | 18 | ||||||
Section 2.8 | Stockholder Approval | 18 | ||||||
Section 2.9 | Short-Form Merger | 19 | ||||||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 19 | |||||||
Section 3.1 | Organization; Power; Qualification | 19 | ||||||
Section 3.2 | Corporate Authorization; Enforceability | 19 | ||||||
Section 3.3 | Capitalization; Equity Awards | 20 | ||||||
Section 3.4 | Subsidiaries | 21 | ||||||
Section 3.5 | Required Filings and Consents | 21 | ||||||
Section 3.6 | Non Contravention | 22 | ||||||
Section 3.7 | Compliance with Laws and Permits | 22 | ||||||
Section 3.8 | Financial Reports and SEC Documents | 23 | ||||||
Section 3.9 | Undisclosed Liabilities | 24 | ||||||
Section 3.10 | Absence of Certain Changes | 25 | ||||||
Section 3.11 | Litigation | 25 | ||||||
Section 3.12 | Contracts | 26 | ||||||
Section 3.13 | Benefit Plans | 28 | ||||||
Section 3.14 | Taxes | 30 | ||||||
Section 3.15 | Intellectual Property | 31 | ||||||
Section 3.16 | Insurance | 33 | ||||||
Section 3.17 | Real Property | 33 | ||||||
Section 3.18 | Takeover Statutes; No Rights Agreement | 33 | ||||||
Section 3.19 | Opinion of Financial Advisor | 34 | ||||||
Section 3.20 | Brokers and Finders | 34 |
i
Table of Contents
(continued)
(continued)
Page | ||||||||
Section 3.21 | Interested Party Transactions | 34 | ||||||
Section 3.22 | Environmental Matters | 34 | ||||||
Section 3.23 | Employee Matters | 35 | ||||||
Section 3.24 | Certain Payments | 36 | ||||||
Section 3.25 | Suppliers | 36 | ||||||
Section 3.26 | Schedule 14D-9; Offer Documents | 36 | ||||||
Section 3.27 | No Other Representations or Warranties | 36 | ||||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 37 | |||||||
Section 4.1 | Organization and Power | 37 | ||||||
Section 4.2 | Corporate Authorization | 37 | ||||||
Section 4.3 | Enforceability | 37 | ||||||
Section 4.4 | Required Filings and Consents | 37 | ||||||
Section 4.5 | Non Contravention | 38 | ||||||
Section 4.6 | Absence of Litigation | 38 | ||||||
Section 4.7 | Financing | 38 | ||||||
Section 4.8 | Operations of Parent and Merger Sub | 38 | ||||||
Section 4.9 | Management Agreements | 39 | ||||||
Section 4.10 | No Other Representations and Warranties | 39 | ||||||
Section 4.11 | Offer Documents; Schedule 14D-9 | 39 | ||||||
ARTICLE V COVENANTS | 40 | |||||||
Section 5.1 | Conduct of Business of the Company | 40 | ||||||
Section 5.2 | Access to Information; Confidentiality | 43 | ||||||
Section 5.3 | Limitations on Solicitation | 43 | ||||||
Section 5.4 | Notices of Certain Events | 45 | ||||||
Section 5.5 | Information Statement; Company Proxy Statement | 46 | ||||||
Section 5.6 | Employees; Benefit Plans | 48 | ||||||
Section 5.7 | Directors’ and Officers’ Indemnification and Insurance | 49 | ||||||
Section 5.8 | Reasonable Efforts | 51 | ||||||
Section 5.9 | Public Announcements | 53 | ||||||
Section 5.10 | Fees and Expenses | 53 | ||||||
Section 5.11 | Takeover Statutes | 54 | ||||||
Section 5.12 | Resignations | 54 | ||||||
Section 5.13 | Conduct of Business of Parent and Merger Sub Pending the Merger | 54 | ||||||
Section 5.14 | Control of Operations | 54 | ||||||
Section 5.15 | Tender Agreement | 54 | ||||||
Section 5.16 | Transfer Taxes | 54 | ||||||
ARTICLE VI CONDITIONS TO THE MERGER | 54 | |||||||
Section 6.1 | Conditions to the Obligations of Each Party | 54 |
ii
Table of Contents
(continued)
(continued)
Page | ||||||||
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER | 55 | |||||||
Section 7.1 | Termination by Mutual Consent | 55 | ||||||
Section 7.2 | Termination by Either Parent or the Company | 55 | ||||||
Section 7.3 | Termination by Parent | 56 | ||||||
Section 7.4 | Termination by the Company | 56 | ||||||
Section 7.5 | Effect of Termination | 57 | ||||||
Section 7.6 | Payment of Fees Following Termination | 57 | ||||||
Section 7.7 | Amendment | 58 | ||||||
Section 7.8 | Extension; Waiver | 59 | ||||||
ARTICLE VIII MISCELLANEOUS | 59 | |||||||
Section 8.1 | Survival | 59 | ||||||
Section 8.2 | Governing Law | 59 | ||||||
Section 8.3 | Submission to Jurisdiction | 59 | ||||||
Section 8.4 | Waiver of Jury Trial | 60 | ||||||
Section 8.5 | Notices | 60 | ||||||
Section 8.6 | Entire Agreement | 61 | ||||||
Section 8.7 | No Third Party Beneficiaries | 61 | ||||||
Section 8.8 | Severability | 62 | ||||||
Section 8.9 | Assignment | 62 | ||||||
Section 8.10 | Specific Performance | 62 | ||||||
Section 8.11 | Time of Essence | 62 | ||||||
Section 8.12 | Counterparts; Effectiveness | 62 |
TENDER AGREEMENT | EXHIBIT A | |
COMPANY CERTIFICATE | EXHIBIT B | |
COMPANY OFFICERS, DIRECTORS AND AFFILIATES | EXHIBIT C | |
CONDITIONS TO THE OFFER | ANNEX A |
iii
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is dated as of February 23, 2009
by and among AMICAS, INC., a Delaware corporation (“Parent”), AMICAS ACQUISITION CORP., a
Delaware corporation and a direct, wholly-owned subsidiary of Parent (“Merger Sub”), and
EMAGEON INC., a Delaware corporation (the “Company”).
RECITALS:
WHEREAS, the Board of Directors of each of Parent, Merger Sub and the Company have approved
the acquisition of the Company by Parent on the terms and conditions set forth in this Agreement;
WHEREAS, on the terms and subject to the conditions set forth herein, Merger Sub has agreed to
commence a tender offer (the “Offer”) to purchase all Shares (as defined below) of the
Company at a price of $1.82 per Share, net to the seller in cash without interest (such price, or
any higher price as may be paid in the Offer in accordance with this Agreement, the “Offer
Price”);
WHEREAS, following consummation of the Offer, on the terms and subject to the conditions set
forth herein, the parties intend that Merger Sub be merged with and into the Company with the
Company surviving the Merger as a direct wholly-owned subsidiary of Parent (the “Merger”),
and each Share that is issued and outstanding immediately prior to the Effective Time (as defined
below), other than Excluded Shares and Dissenting Shares (each as defined below), will be cancelled
and converted into the right to receive cash in an amount equal to the Offer Price, all upon the
terms and conditions of this Agreement, and in accordance with the General Corporation Law of the
State of Delaware (the “DGCL”);
WHEREAS, the board of directors of the Company (the “Company Board”) has approved and
declared advisable this Agreement and the transactions contemplated hereby, including the Offer and
the Merger, in accordance with the DGCL, and determined to recommend that the stockholders of the
Company accept the Offer and tender their Shares to Merger Sub and, to the extent applicable, adopt
the “agreement of merger” (as such term is used in Section 251 of the DGCL) set forth in this
Agreement;
WHEREAS, the board of directors of Parent and the board of directors and the stockholder of
Merger Sub have, on the terms and subject to the conditions set forth herein, unanimously approved
and declared advisable this Agreement and the transactions contemplated hereby, including the Offer
and the Merger, and Parent (in its capacity as the sole stockholder of Merger Sub) has adopted the
“agreement of merger” set forth in this Agreement, in each case in accordance with the DGCL;
WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement
to Parent and Merger Sub entering into this Agreement and incurring the obligations set forth
herein, Parent is entering into a tender and support agreement with the executive officers and
directors, and Affiliates thereof, of the Company in the form of Exhibit A attached hereto
(the “Tender Agreement”); and
1
WHEREAS, the parties desire to make certain representations, warranties, covenants and
agreements in connection with the Offer and the Merger and also to prescribe certain conditions to
the Merger, as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the representations, warranties,
covenants and agreements contained in this Agreement, Parent, Merger Sub and the Company, intending
to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 Certain Definitions (a) For purposes of this Agreement:
“Affiliate” means, with respect to any Person, any other Person that directly or
indirectly controls, is controlled by or is under common control with, such first Person. For the
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as applied to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting securities, by
Contract or otherwise.
“Business Day” means, any day, other than a Saturday, Sunday or a day on which banking
institutions are generally closed in Boston, Massachusetts.
“Company Material Adverse Effect” means any event, change, occurrence or effect (each,
a “Change”), individually or when taken together with all other Changes, that is or
reasonably would be expected to (i) be materially adverse to the business, financial condition,
results of operations, assets, liabilities, or properties of the Company and its Subsidiaries,
taken as a whole, other than any Change relating to or resulting from: (A) Changes or developments
in the economic, business, financial or regulatory environment affecting the industries in which
the Company and its Subsidiaries operate, so long as such Changes or developments do not adversely
affect the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner
relative to other participants in the industries or markets in which they operate, (B) any
occurrence or threats of terrorist acts or an outbreak or escalation of hostilities or war (whether
declared or not declared) or any natural disaster or act of God affecting the United States, so
long as each of the foregoing do not adversely affect the Company and its Subsidiaries, taken as a
whole, in a materially disproportionate manner relative to other participants in the industries or
markets in which they operate, (C) Changes in the national or world economy or national or foreign
financial, credit or securities markets as a whole, so long as such Changes do not adversely affect
the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner
relative to other participants in the industries or markets in which they operate, (D) the
suspension of trading in securities generally on the New York Stock Exchange, American Stock
Exchange or NASDAQ, (E) Changes in applicable Law or GAAP or the enforcement or interpretation
thereof after the date hereof, so long as such Changes do not adversely affect the Company and its
Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other participants in the industries or markets in which
they operate, (F) the identity of Parent or any of its Affiliates as the acquiror of the Company,
(G) the
2
failure of the Company to meet any public expectations, projections, forecasts or estimates of revenues or earnings for any period ending on or after the date hereof (it being understood,
however, that any Change contributing, directly or indirectly, to such failure may, except as
provided in any of subsections (A), (B), (C), (D), (E), (F), (H), (I), (J) or (K) of this
definition, be deemed to constitute or be taken into account in determining whether a Company
Material Adverse Effect has occurred), (H) any Change, in and of itself (it being understood,
however, that any facts underlying such Change may, except as provided in any of subsections (A),
(B), (C), (D), (E), (F), (G), (I), (J) or (K) of this definition, be deemed to constitute or be
taken into account in determining whether a Company Material Adverse Effect has occurred), in the
market price or trading volume of the equity securities of the Company on or after the date hereof,
(I) acts or omissions of Parent or the Merger Sub after the date of this Agreement, except for such
acts or omissions made at the written request of or with the express written consent of the
Company, (J) taking any action required by this Agreement, or taking or not taking any action at
the request of, or with the express written consent of, Parent, or (K) any Legal Actions, claims or
investigations arising out of, relating to or resulting from that certain Deposit Escrow Agreement
dated as of October 21, 2008, as amended on December 29, 2008 (the “Deposit Escrow Agreement”), or
the release of the escrowed funds deposited thereunder, except in the event of a finding of knowing
complicity, recklessness or willful wrongdoing by the Company or any of its Subsidiaries; or (ii)
materially impair the ability of the Company to consummate the Merger.
“Company Termination Fee” means $1,600,000.
“Contract” means any contract, agreement, license, note, bond, mortgage, indenture,
commitment, lease or other instrument or obligation, whether written or oral.
“Environmental Laws” means any and all applicable federal, state or local statutes,
regulations, ordinances, codes or permits of the United States, or any state, local, or municipal
governmental entity, regulating or imposing liability or standards of conduct concerning protection
of the environment (including indoor air, ambient air, surface water, groundwater, land surface,
subsurface strata, or plant or animal species) or human health as affected by the environment or
Hazardous Substances (including employee health and safety).
“Hazardous Substance” means all explosive or radioactive substances, materials or
wastes, hazardous or toxic substances, materials or wastes, friable asbestos, friable
asbestos-containing materials, toxic mold, petroleum or any fraction thereof, and all other
substances, materials or wastes that are regulated pursuant to any applicable Environmental Law.
“Intellectual Property” means shall mean (a) all patents and patent applications, and
all patents issuing thereon, including utility, model and design patents and certificates of
invention, together with all reissue patents, patents of addition, divisionals, renewals,
continuations, continuations-in-part, substitutions, additions, extensions, including supplemental
protection certificates, registrations, confirmations, re-examinations and all foreign counterparts
of the forgoing which are in the process of being prepared, and all inventions and improvements
disclosed therein; (b) all know-how, including without limitation as they exist anywhere in the
world, trade secrets, formulae, ideas, concepts, inventions and invention disclosures not subject
to (a) above, whether or not patentable, discoveries, innovations, improvements, results,
reports, information and data (including without limitation all business and technical information, and
3
information and data relating to research, development, analytical methods, processes,
formulations and compositions), research summary data, research raw data, laboratory and programmer
notebooks, methods, procedures, proprietary technology and information, operating and maintenance
manuals, engineering and other drawings and sketches, manufacturing and production processes and
techniques, designs, specifications, and blueprints; (c) customer lists, supplier lists, pricing
information, cost information, business and marketing research, plans, protocols, information and
proposals, and the like not subject to (b) above; (d) registered and unregistered trademarks,
service marks, trade dress, trade names, brand names, designs, logos, commercial symbols and
corporate names, and all goodwill associated therewith, and the right to recover for past
infringement thereof, heretofore or hereafter filed or having legal force in any country of the
world; (e) copyrights and all works of authorship, whether or not registered or copyrightable, and
all applications, registrations, and renewals in connection therewith, including all rights to the
foregoing throughout the world; (f) databases, graphics and schematics; (g) all Software and all
copyrights therein throughout the world; (h) all application programming interfaces, access to
proprietary databases or other information sources; (i) all domain names, Internet addresses and
other computer identifiers, web sites, URLs, web pages, registrations for any of the foregoing and
similar rights and items, as they exist anywhere in the world; and (j) all copies and tangible
embodiments of the foregoing, whether whole or partial (in whatever form or medium, including, but
not limited to, electronic media).
“Knowledge” means, when used with respect to the Company, the actual knowledge of the
Persons set forth in Section 1.1(a) of the Company Disclosure Letter after due inquiry. “Knowledge”
means, when used with respect to Merger Sub and Parent, the actual knowledge of the Persons set
forth in Section 1.1(a) of the Acquiror Disclosure Letter after due inquiry.
“Laws” means any domestic or foreign laws, statutes, ordinances, rules or regulations
enacted, issued, adopted, promulgated or applied by any Governmental Entity that are applicable to
the Persons or Persons referenced.
“Liens” means any mortgages, deeds of trust, liens (statutory or other), pledges,
security interests, collateral security arrangements, charges, restrictions on voting or transfer,
or other encumbrances that are material to the specific property referenced.
“Merger Sub Material Adverse Effect” means any Change that, individually or in the
aggregate with all other Changes, materially impairs the ability of Parent or Merger Sub to
consummate the Offer or the Merger.
“Order” means any order, judgment, injunction, award or decree adopted or imposed by,
including any consent decree, settlement agreement or similar written agreement with, any
Governmental Entity.
“Permit” means any permit, license, approval, franchise, agreement, qualification,
authorization or registration of any Governmental Entity.
“Permitted Liens” means (i) Liens for Taxes, assessments and governmental charges or
levies not yet due and payable or that are being contested in good faith and by
4
appropriate
proceedings; (ii) mechanics’, carriers’, workmens’, repairmens’, materialmens’ or other Liens or
security interests that secure a liquidated amount that are being contested in good faith and by
appropriate proceedings; (iii) leases, subleases and licenses (other than capital leases and leases
underlying sale and leaseback transactions); (iv) pledges or deposits to secure obligations under
workers’ compensation Laws or similar legislation or to secure public or statutory obligations; (v)
pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal
bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary
course of business; (vi) easements, covenants and rights of way (unrecorded and of record) and
other similar restrictions of record, and zoning, building and other similar restrictions that,
with respect to any such unrecorded restrictions, are not materially adverse to the property
referenced; (vii) any other Liens that do not secure a liquidated amount, that have been incurred
or suffered in the ordinary course of business and that would not, individually or in the
aggregate, have a material effect on, or materially affect the use or benefit to the owner of, the
assets or properties to which they specifically relate; (viii) licenses of or other agreements
related to Intellectual Property which are not intended to secure an obligation and which are
entered into in the ordinary course of business; and (ix) such other Liens that in the aggregate
are not material.
“Person” means any individual, corporation, limited or general partnership, limited
liability company, limited liability partnership, trust, association, joint venture, Governmental
Entity or other entity or group (which term will include a “group” as such term is defined in
Section 13(d)(3) of the Exchange Act).
“Representatives” means, when used with respect to Parent, Merger Sub or the Company,
the directors, officers, members, managers, employees, consultants, accountants, legal counsel,
investment bankers, lenders or other financing sources, agents and other representatives of Parent,
Merger Sub or the Company, as applicable, and their respective Subsidiaries.
“Requisite Stockholder Vote” means the adoption of this Agreement by the affirmative
vote of the holders of a majority of the voting power of the shares of Common Stock outstanding and
entitled to vote thereon.
“Software” means all computer programs, including operating systems, application
programs, software tools, and firmware and software imbedded in equipment, including both object
code and source code.
“Subsidiary” means, when used with respect to Parent, Merger Sub or the Company, any
other Person (whether or not incorporated) that Parent, Merger Sub or the Company, as applicable,
directly or indirectly owns or has the power to vote or control more than 50% of any class or
series of capital stock or other equity interests of such Person.
“Superior Proposal” means any written Takeover Proposal that the Company Board
determines in its good faith judgment (after consultation with its financial advisor and outside
legal counsel) (i) to be more favorable from a financial perspective (taking into account such
legal, financial, regulatory and other aspects of such Takeover Proposal, the Offer and the
Merger and other transactions contemplated by this Agreement and such other factors, matters
and issues, as are deemed relevant by the Company Board, and the anticipated timing, conditions
5
and
prospects for completion of such Takeover Proposal) to the Company’s stockholders than the Offer,
the Merger and the other transactions contemplated by this Agreement (taking into account all of
the terms of any proposal by Parent to amend or modify the terms of the Offer, the Merger and the
other transactions contemplated by this Agreement), except that all percentages in the definition
of “Takeover Proposal” shall be increased to “50%” and (ii) is likely (based on the good faith
belief of the Company Board) to be consummated on the terms set forth therein if accepted.
“Takeover Proposal” means any proposal or offer from any Person or group of Persons
other than Parent that provides for, in a single transaction or a series of related transactions,
any direct or indirect acquisition or purchase of (i) 20% or more of the value (as determined by
the Company Board) of the consolidated assets of the Company and its Subsidiaries, (ii) beneficial
ownership of securities representing 20% or more (by vote or value) of the outstanding securities
of the Company, (iii) any tender offer, self tender offer or exchange offer that if consummated
would result in any Person or group of Persons beneficially owning securities representing 20% or
more (by vote or value) of the outstanding securities of the Company, or (iv) any merger,
consolidation, share exchange, business combination, recapitalization or similar transaction
involving the Company (or any Subsidiary or Subsidiaries of the Company whose business constitutes
20% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as
a whole).
“Tax” means any and all federal, state, local, foreign and other taxes, levies, fees,
duties, and similar charges (including any interest, fines, assessments, penalties or additions to
tax imposed in connection therewith or with respect thereto) imposed, assessed or collected by or
under the authority of any Governmental Entity.
“Tax Returns” means any and all reports, returns, declarations, elections,
disclosures, estimates, information reports or returns or statements required to be supplied to a
taxing authority in connection with Taxes.
(b) For purposes of this Agreement, the following terms have the meanings set forth in the
Sections listed below:
6
Defined Term | Section | Defined Term | Section | |||||||
Acquiror Disclosure Letter
|
Article IV | DGCL | Recitals | |||||||
Affiliate Transaction
|
3.21 | Depositary | 1A.5 | (a) | ||||||
Agreement
|
Preamble | Dissenting Shares | 2.4 | |||||||
Alternative Acquisition
|
5.3 | (d) | Dissenting Stockholder | 2.4 | ||||||
Agreement |
||||||||||
Antitrust Division
|
5.8 | (a) | Effective Time | 2.1 | (b) | |||||
Book-Entry Shares
|
2.2 | (c) | Employee Benefits | 5.6 | (a) | |||||
Certificate
|
2.2 | (c) | Employees | 5.6 | (a) | |||||
Certificate of Merger
|
2.1 | (b) | Equity Award Amounts | 2.5 | (d) | |||||
Change
|
1.1 | (a) | ERISA | 3.13 | (b) | |||||
Closing
|
2.1 | (b) | Exchange Act | 3.5 | ||||||
Closing Date
|
2.1 | (b) | Excluded Shares | 2.2 | (a) | |||||
Code
|
2.3 | (c) | Foreign Merger Control Laws |
3.5 | ||||||
COBRA
|
3.13 | (d) | FTC | 5.8 | (a) | |||||
Common Stock
|
2.2 | (a) | GAAP | 3.8 | (c) | |||||
Company
|
Preamble | Governmental Entity | 3.5 | |||||||
Company 401(k) Plan
|
5.6 | (c) | HSR Act | 3.5 | ||||||
Company Benefit Plan
|
3.13 | (a) | Indemnified Parties | 5.7 | (a) | |||||
Company Board
|
Recitals | Indemnifying Party | 5.7 | (a) | ||||||
Company Board Recommendation |
3.2 | (a) | Independent Directors | 1A.4 | (c) | |||||
Company Certificate
|
2.6 | (a) | Information Statement | 5.5 | (a) | |||||
Company Disclosure Letter
|
Article III | IRS | 3.13 | (a) | ||||||
Company Licensed Intellectual Property |
3.15 | (d) | Leases | 3.17 | ||||||
Company Organizational
Documents
|
3.6 | (a) | Legal Action | 3.11 | ||||||
Company Owned
Intellectual Property
|
3.15 | (a) | Material Contract | 3.12 | (a) | |||||
Company Proxy Statement
|
5.5 | (a) | Measurement Date | 3.3 | (a) | |||||
Company Restricted Share
|
2.5 | (b) | Merger | Recitals | ||||||
Company RSU
|
2.5 | (c) | Merger Consideration | 2.2 | (b) | |||||
Company SEC Documents
|
3.8 | (a) | Merger Sub | Preamble | ||||||
Company Stock Option
|
2.5 | (a) | Multiemployer Plan | 3.13 | (b) | |||||
Company Stock Plans
|
2.5 | (a) | NASDAQ | 3.5 | ||||||
Company Stockholders Meeting |
3.5 | New Plans | 5.6 | (b) | ||||||
Confidentiality Agreement
|
5.2 | (a) | Notice Period | 5.3 | (d) | |||||
Continuation Period
|
5.6 | (a) | Offer | Preamble | ||||||
Continuing Directors
|
1A.4 | (b) | Offer Conditions | 1A.1 | (a) | |||||
D&O Insurance
|
5.7 | (b) | Offer Documents | 1A.1 | (b) |
7
Defined Term | Section | Defined Term | Section | |||||||
Offer Price
|
Preamble | Schedule TO | 1A.1 | (b) | ||||||
Old Plans
|
5.6 | (b) | SEC | 3.5 | ||||||
Outside Date
|
7.2 | (a) | Securities Act | 3.5 | ||||||
Parent
|
Preamble | Shares | 2.2 | (b) | ||||||
Paying Agent
|
2.3 | (a) | Significant Suppliers | 3.25 | ||||||
Payment Fund
|
2.3 | (a) | SRO | 3.5 | ||||||
Pre-Closing Service
|
5.6 | (b) | SunTrust | 3.19 | ||||||
Preferred Stock
|
3.3 | (a) | Surviving Corporation | 2.1 | (a) | |||||
Purchase Time
|
1A.5 | (a) | Third Party Beneficiary | 8.7 | ||||||
Real Property
|
3.17 | Top-Up Option | 1A.5 | (a) | ||||||
Recommendation Change
|
5.3 | (d) | Top-Up Shares | 1A.5 | (a) | |||||
Schedule 14D-9
|
1A.2 | (b) | Treasury Regulations | 2.3 | (c) | |||||
Tender Agreement | Recitals | |||||||||
WARN | 3.23 | (d) |
Section 1.2 Interpretation. (a) The headings in this Agreement are for reference only
and do not affect the meaning or interpretation of this Agreement. Definitions apply equally to
both the singular and plural forms of the terms defined. All references in this Agreement, the
Company Disclosure Letter and the Acquiror Disclosure Letter to Articles, Sections and Exhibits
refer to Articles and Sections of, and Exhibits to, this Agreement unless the context requires
otherwise. The words “include,” “includes” and “including” are not limiting and will be deemed to
be followed by the phrase “without limitation.” The phrases “herein,” “hereof,” “hereunder” and
words of similar import will be deemed to refer to this Agreement as a whole, including the
Exhibits and Schedules hereto, and not to any particular provision of this Agreement. The word “or”
will be inclusive and not exclusive unless the context requires otherwise.
(b) The parties to this Agreement have been represented by counsel during the negotiation and
execution of this Agreement and waive the application of any Laws or rule of construction providing
that ambiguities in any agreement or other document will be construed against the party drafting
such agreement or other document.
ARTICLE IA
THE OFFER
THE OFFER
Section 1A.1 The Offer.
(a) (i) Provided that this Agreement shall not have been terminated in accordance with Article
VII and that none of the events set forth in Paragraphs 1(d) — 1(g) of Annex A hereto shall exist
or have occurred, Merger Sub shall (and Parent shall cause Merger Sub to), as promptly as possible
(but in no event later than March 5, 2009) commence (within the meaning of Rule 14d-2 under the
Exchange Act) the Offer to purchase all outstanding Shares, at the Offer Price. The obligations of
Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any Shares
tendered pursuant to the Offer shall be subject to the satisfaction or waiver of only those
conditions set forth in Annex A (the “Offer Conditions”).
Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time
to time in its sole discretion to waive any Offer Condition or modify or amend the terms of the
8
Offer, including an increase in the Offer Price, except that, without the prior written consent of
the Company, Merger Sub shall not (A) decrease the Offer Price or change the form of the
consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer,
(C) amend or waive the Minimum Tender Condition (as defined in Annex A), (D) add to the conditions
set forth on Annex A, (E) modify the conditions set forth on Annex A in a manner adverse to the
holders of Shares, (F) extend the expiration of the Offer except as required or permitted by
Section 1A.1(a)(ii) or (iii), or (G) make any other change in the terms or
conditions of the Offer which is adverse to the holders of Shares.
(ii) The initial expiration date of the Offer shall be the twentieth Business Day following
(and including the day of) the commencement of the Offer. Merger Sub shall (and Parent shall cause
Merger Sub to) extend the Offer for one period of time if requested and determined by the
Company of up to twenty Business Days. Subject to the terms and conditions of this
Agreement, Merger Sub may, without the consent of the Company, extend the Offer for one or more
periods of time of up to twenty Business Days per extension if at any scheduled expiration of the
Offer any of the Offer Conditions are not satisfied, until such time as such Offer Conditions are
satisfied or waived. Subject to the terms and conditions of this Agreement, Merger Sub shall (A)
extend the Offer for any period required by any rule, regulation, interpretation or position of the
SEC or the staff thereof or the NASDAQ applicable to the Offer, and (B) extend the Offer on one or
more occasions for periods determined by Merger Sub of up to twenty Business Days per extension if,
at any scheduled expiration of the Offer, all of the Offer Conditions have been satisfied or waived
other than the Offer Condition set forth in Paragraph 1(b) of Annex A; provided,
however, that Merger Sub shall not be required to extend the Offer (1) pursuant to clause
(A) or (B) beyond the Outside Date or (2) at any time that it is permitted to terminate this
Agreement pursuant to Article VII.
(iii) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver
by Merger Sub of the Offer Conditions as of the time of any scheduled expiration of the Offer,
Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for Shares
validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after such
scheduled expiration and Merger Sub shall, and Parent shall cause Merger Sub to, promptly accept
and pay for all Shares as they are validly tendered during any subsequent offer period. Parent
shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to
purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file or cause to be
filed with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and
supplements thereto, the “Schedule TO”) with respect to the Offer which shall contain the
offer to purchase and related letter of transmittal and summary advertisement and other ancillary
Offer documents and instruments pursuant to which the Offer will be made (collectively with any
supplements or amendments thereto, the “Offer Documents”). Parent and Merger Sub agree to
cause the Offer Documents to be disseminated as and to the extent required by the Exchange Act.
The Company and its counsel shall be given a reasonable opportunity to
review and comment on the Offer Documents prior to their filing with the SEC. Parent and
Merger Sub agree (i) to provide the Company with, and to consult with the Company regarding,
9
any
comments that may be received from the SEC or its staff with respect to the Offer Documents
promptly after receipt thereof and prior to responding thereto and (ii) to provide the Company with
any comments or responses thereto. If at any time prior to the Closing, any information relating to
the Offer, the Merger, the Company, Parent, Merger Sub or any of their respective Affiliates,
directors or officers, should be discovered by the Company or Parent which should be set forth in
an amendment or supplement to the Offer Documents, so that the Offer Documents shall not contain
any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under
which they are made, not misleading, the party which discovers such information shall promptly
notify the other party, and an appropriate amendment or supplement describing such information
shall be filed with the SEC and disseminated to the stockholders of the Company, as and to the
extent required by applicable Law or any applicable rule or regulation of any stock exchange.
(c) Parent and Merger Sub shall not terminate the Offer prior to any scheduled expiration date
without the prior written consent of the Company, except if this Agreement is terminated pursuant
to Article VII. If this Agreement is terminated pursuant to Article VII, Merger Sub
shall (and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such
termination) terminate the Offer and shall not acquire the Shares pursuant thereto. If the Offer is
terminated by Parent or Merger Sub, or this Agreement is terminated prior to the purchase of Shares
in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of
Merger Sub to return, in accordance with applicable Law, all tendered Shares that have not then
been purchased in the Offer to the registered holders thereof.
Section 1A.2 Company Consent; Schedule 14D-9.
(a) The Company hereby approves of and consents to the Offer.
(b) On the date the Offer Documents are filed, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and
supplements thereto, the “Schedule 14D-9”) containing, subject to Section 5.3(d),
the Company Board Recommendation. The Company hereby consents to the inclusion of the Company Board
Recommendation in the Offer Documents and to the inclusion of a copy of the Schedule 14D-9 with the
Offer Documents mailed or furnished to the Company’s stockholders. Parent and Merger Sub shall be
given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with
the SEC. The Company agrees (i) to provide Parent and Merger Sub with, and to consult with Parent
and Merger Sub regarding, any comments that may be received from the SEC or its staff with respect
to the Schedule 14D-9 promptly upon receipt thereof and prior to responding thereto and (ii) to
provide Parent and Merger Sub with any comments or responses thereto. If at any time prior to the
Closing, any information relating to the Offer, the Merger, the Company, Parent, Merger Sub or any
of their respective Affiliates, directors or officers, should be discovered by the Company or
Parent which should be set forth in an amendment or supplement to the Schedule 14D-9, so that the
Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the
circumstances under which they are made, not misleading, the party which discovers such
information shall promptly notify the other party, and an appropriate amendment or supplement
10
describing such information shall be filed with the SEC and disseminated to the stockholders of the
Company, as and to the extent required by applicable Law or any applicable rule or regulation of
any stock exchange.
Section 1A.3 Stockholder Lists. In connection with the Offer, the Company shall cause
its transfer agent to, promptly (but in any event within five Business Days following the date
hereof), furnish Parent and Merger Sub with mailing labels, security position listings and a
listing and computer file containing the names and addresses of the record holders of the Shares as
of the latest practicable date and shall furnish Parent and Merger Sub with such information and
assistance (including periodic updates of such information) as Parent or Merger Sub or their agents
may reasonably request in communicating the Offer to the record and beneficial holders of the
Shares. Subject to the requirements of applicable Law, and except for such actions as are
reasonably necessary to disseminate the Offer Documents and otherwise to perform its obligations
hereunder, Merger Sub shall hold all information and documents provided to it under this Section
1A.3 in confidence in accordance with the Confidentiality Agreement, and shall use such information
and documents only in connection with the Offer, and if this Agreement shall have been terminated
Parent and Merger Sub shall deliver to the Company all such information and documents (and all
copies thereof).
Section 1A.4 Directors.
(a) Promptly upon the purchase by Merger Sub pursuant to the Offer of such number of Shares as
represents at least a majority of the then-outstanding Shares, and from time to time thereafter,
Merger Sub shall be entitled to designate such number of directors, rounded up to the next whole
number, on the Company Board as will give Merger Sub representation on the Company Board equal to
the product of (x) the total number of directors on the Company Board (after giving effect to any
increase in the number of directors pursuant to this Section 1A.4) and (y) the percentage
that such number of Shares so purchased bears to the total number of Shares outstanding, and the
Company shall, upon request by Merger Sub, promptly increase the size of the Company Board or use
its reasonable best efforts to secure the resignations of such number of directors as is necessary
to provide Merger Sub with such level of representation and shall cause Merger Sub’s designees to
be so elected or appointed. The Company shall also cause individuals designated by Merger Sub to
constitute the same percentage of each committee of the Company Board as the percentage of the
entire Company Board represented by individuals designated by Merger Sub. The Company’s obligations
to appoint designees to the Company Board shall be subject to Section 14(f) of the Exchange Act. At
the request of Merger Sub, the Company shall take all actions necessary to effect any such election
or appointment of Merger Sub’s designees, including mailing to its stockholders the information
required by Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder which, unless
Merger Sub otherwise elects, shall be so mailed together with the Schedule 14D-9. Parent and Merger
Sub will supply to the Company all information with respect to themselves and their respective
officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-l
promulgated thereunder.
(b) Following the election or appointment of Merger Sub’s designees pursuant to Section
1A.4(a) and prior to the Effective Time, any amendment or termination of this Agreement by the
Company, any extension of time for the performance of any of the obligations
11
or other acts of
Parent or Merger Sub under this Agreement, any waiver of compliance with any of the agreements or
conditions under this Agreement other than those that are for the benefit of the Parent, any
exercise of the Company’s rights or remedies under this Agreement, any action to seek to enforce
any obligation of Parent or Merger Sub under this Agreement (or any other action by the Company
Board with respect to this Agreement or the Merger if such other action adversely affects, or could
reasonably be expected to adversely affect, any of the holders of Shares other than Parent or
Merger Sub) or any amendment to the Company’s charter or bylaws may only be authorized by, and will
require the authorization of, a majority of the directors of the Company then in office who are
directors of the Company on the date hereof or their successors as appointed by such continuing
directors (the “Continuing Directors”); provided, however, that if there
shall be no Continuing Directors as a result of such individuals’ deaths, disabilities,
resignations or refusal to serve, then such actions may be effected by majority vote of the
Independent Directors, or, if no Independent Directors are then in office, by a majority vote of
the Company Board; provided further, however, that for so long as there remains at
least one Continuing Director, in the event any Continuing Director is unable to continue to serve
as a result of death, disability, resignation or refusal to serve the Company shall take all
necessary action so that the remaining Continuing Director(s) shall be entitled to elect or
designate another Person that satisfies the applicable independence requirements to fill such
vacancy, and such Person shall be deemed to be a Continuing Director for purposes of this
Agreement. The Continuing Directors shall have, and the Parent shall cause the Continuing
Directors to have, the authority to retain such counsel (which may include current counsel to the
Company or the Board or any committee thereof) and other advisors at the expense of the Company as
determined by the Continuing Directors, and the authority to institute any action on behalf of the
Company to enforce performance of this Agreement.
(c) In the event that Parent’s designees are elected or appointed to the Company Board
pursuant to Section 1A.4(a), until the Effective Time, (i) the Company Board shall have at
least such number of directors as may be required by the NASDAQ rules or the federal securities
laws who are considered independent directors within the meaning of such rules and laws (the
“Independent Directors”) and (ii) each committee of the Company Board that is required (or
a majority of which is required) by the NASDAQ rules or the federal securities laws to be composed
solely of Independent Directors shall be so composed; provided, however, that in such event, if the
number of Independent Directors shall be reduced below the number of directors as may be required
by such rules or laws for any reason whatsoever, and subject to the last proviso of the penultimate
sentence of Section 1A.4(b), the remaining Independent Director(s) shall be entitled to
designate persons to fill such vacancies who shall be deemed to be Independent Directors for
purposes of this Agreement or, if no other Independent Director then remains, the other directors
shall designate such number of directors, as may be required by the NASDAQ rules and the federal
securities laws, to fill such vacancies who shall not be stockholders or Affiliates of Parent or
Merger Sub, and such Persons shall be deemed to be Independent Directors for purposes of this
Agreement.
Section 1A.5 Top-Up Option.
(a) The Company hereby irrevocably grants to Merger Sub an option (the “Top-Up
Option”), exercisable only after Merger Sub’s acceptance for payment of Shares validly tendered
and not withdrawn as of the expiration date of the Offer and payment for such
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Shares in accordance
with the terms of the Offer by depositing the aggregate purchase price therefor with the Depositary
(the “Depositary”) for the Offer (the date and time of such deposit with the Depositary
being referred to as the “Purchase Time”), and prior to the Effective Time, to purchase
from the Company that number of Shares (the “Top-Up Shares”) equal to the number of Shares
that, when added to the number of Shares owned directly or indirectly by Parent or Merger Sub
immediately following the consummation of the Offer, shall constitute one share more than 90% of
the total Shares then outstanding (after giving effect to the issuance of the Top-Up Shares) at a
price per Share equal to the Offer Price; provided, however, that in no event shall
the Top-Up Option be exercisable to the extent it would be exercisable for a number of Shares in
excess of the Company’s then authorized and unissued shares of Common Stock (including as
authorized and unissued shares of Common Stock, for purposes of this Section 1A.5, any
Shares held in the treasury of the Company).
(b) If Merger Sub wishes to exercise the Top-Up Option, Parent or Merger Sub shall deliver to
the Company a notice setting forth (i) the number of Top-Up Shares that Merger Sub wishes to
purchase pursuant to the Top-Up Option, and (ii) the place and time at which the closing of the
purchase of the Top-Up Shares is to take place. At the closing of the purchase of the Top-Up
Shares, Merger Sub shall pay the Company (which payment, except to the extent of the par value of
the Top-Up Shares, may be in the form of a note) for the Top-Up-Shares against delivery of
certificates therefor.
(c) Parent and Merger Sub understand that the Shares that Merger Sub may acquire upon exercise
of the Top-Up Option will not be registered under the Securities Act, and will be issued in
reliance upon an exemption thereunder for transactions not involving a public offering. Merger Sub
agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are being
and will be acquired for the purpose of investment and not with a view to or for resale in
connection with any distribution thereof within the meaning of the Securities Act. Any certificates
evidencing Top-Up Shares may include any legends required by applicable securities laws.
ARTICLE II
THE MERGER
THE MERGER
Section 2.1 The Merger. (a) On the terms and subject to the conditions set forth in
this Agreement, and in accordance with the DGCL, at the Effective Time, (i) Merger Sub will be
merged with and into the Company, (ii) the separate corporate existence of Merger Sub will cease,
and (iii) the Company will continue its corporate existence under Delaware law as the surviving
corporation in the Merger (the “Surviving Corporation”) and a direct wholly-owned
subsidiary of Parent. The Merger will have the effects set forth in this Agreement and the
applicable provisions of the DGCL.
(b) Unless otherwise mutually agreed in writing by the Company and Parent, the closing of the
Merger (the “Closing”) will take place at the offices of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, at 10:00 a.m., Boston,
Massachusetts time, within two (2) Business Days following the day on which all of the conditions
set forth in Article VI (other than those conditions that by their nature are to be
satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) are
satisfied
13
or, if permissible, waived in accordance with this Agreement, or another date mutually
agreed to in writing by Parent and the Company. Subject to the provisions of this Agreement, at the
Closing, the Company and Parent will cause a certificate of merger or a certificate of ownership
and merger, as the case may be (in each such case, the “Certificate of Merger”) to be
executed, acknowledged and filed with the Secretary of State of the State of Delaware in accordance
with the relevant provisions of the DGCL. The Merger will become effective at such time as the
Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or
at such later date or time as may be agreed by Parent and the Company in writing and specified in
the Certificate of Merger in accordance with the DGCL (the date on which the Closing actually
occurs being hereinafter referred to as the “Closing Date,” and the date and time at which
the Merger becomes effective being hereinafter referred to as the “Effective Time”).
Section 2.2 Effect of the Merger on Capital Stock. At the Effective Time, as a result
of the Merger and without any action on the part of Merger Sub, Parent or the Company or any holder
of any securities of Merger Sub, Parent or the Company:
(a) Cancellation of Certain Common Stock. Each share of common stock, par value
$0.001 per share, of the Company (the “Common Stock”) that is owned by Merger Sub, Parent,
the Company (as treasury stock or otherwise) or any Subsidiary of the Company (each an
“Excluded Share,” and collectively the “Excluded Shares”) will automatically be
cancelled and will cease to exist, and no consideration will be delivered in exchange therefor.
(b) Conversion of Common Stock. Each share of Common Stock (each share of Common
Stock, a “Share” and collectively, the “Shares”), issued and outstanding
immediately prior to the Effective Time (other than Excluded Shares and, except as provided in
Section 2.4, Dissenting Shares), will be converted into the right to receive the Offer
Price in cash from the Surviving Corporation (through the Paying Agent as provided in Section
2.3), without interest (the “Merger Consideration”).
(c) Cancellation of Shares. At the Effective Time, all Shares will cease to be
outstanding, will be cancelled and will cease to exist, and, in the case of non-certificated shares
represented by book-entry (“Book-Entry Shares”), the names of the former registered holders
will be removed from the registry of holders of such shares, and, subject to Section 2.4,
each holder of a certificate formerly representing any such Shares (each, a “Certificate”)
and each holder of a Book-Entry Share, in each case other than Excluded Shares and Dissenting
Shares, will cease to have any rights with respect thereto, except the right to receive the Merger
Consideration in accordance with Section 2.3 and any dividends declared with a record date
prior to the Effective Time that remain unpaid at the Effective Time and that are due to such
holder, in each case without interest.
(d) Conversion of Merger Sub Capital Stock. Each share of common stock, par value
$0.001 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time will
be converted into one share of common stock, par value $0.001 per share, of the Surviving
Corporation.
Section 2.3 Surrender of Certificates and Book-Entry Shares(a) Paying Agent.
Prior to the Effective Time, for the benefit of the holders of Shares (other than Excluded Shares
and
14
Dissenting Shares), Parent will (i) designate, or cause to be designated, a bank or trust
company that is reasonably acceptable to the Company (the “Paying Agent”), and (ii) enter
into a paying agent agreement, in form and substance reasonably acceptable to the Company, with
such Paying Agent to act as agent for the payment of the Merger Consideration in respect of
Certificates upon surrender of such Certificates (or effective affidavits of loss in lieu thereof
and a bond, if required, pursuant to Section 2.3(f)) and the Book-Entry Shares in
accordance with this Article II from time to time after the Effective Time. On the Closing
Date, contemporaneously with the filing of the Certificate of Merger, Parent or Merger Sub will
deposit, or cause to be deposited, with the Paying Agent cash in the amount necessary for the
payment of the Merger Consideration pursuant to Section 2.2(b) upon surrender of such
Certificates and Book-Entry Shares (such cash being herein referred to as the “Payment
Fund”). The Payment Fund shall not be used for any purpose other than the payment of Merger
Consideration pursuant to Section 2.2(b) and the terms of this Agreement. The Payment Fund
shall be invested by the Paying Agent as directed by the Surviving Corporation; provided,
however, that such investments shall be (i) in obligations of, or guaranteed by, the United
States or any agency or instrumentality thereof and backed by the full faith and credit of the
United States, (ii) in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors
Service, Inc. or Standard & Poor’s Corporation, respectively, or (iii) in certificates of deposit,
bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $10
billion (based on the most recent financial statements of such bank which are then publicly
available). Any net profit resulting from, or interest or income produced by, such investments
shall be the property of and payable to the Surviving Corporation.
(b) Payment Procedures. Prior to or promptly after the Effective Time, but in no
event more than three (3) Business Days after the Effective Time, the Surviving Corporation or
Parent will cause the Paying Agent to mail to each holder of record of Shares (other than Excluded
Shares and Dissenting Shares) a letter of transmittal in customary form reasonably acceptable to
the Company and Parent (which shall specify that delivery will be effected, and risk of loss and
title to Certificates and Book-Entry Shares will pass, only upon proper delivery of Certificates
(or effective affidavits of loss in lieu thereof and a bond, if required, pursuant to Section
2.3(f)) or Book-Entry Shares, as the case may be, to the Paying Agent) and instructions for use
in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof and
a bond, if required, pursuant to Section 2.3(f)) and Book-Entry Shares in exchange for the
Merger Consideration. Upon the proper surrender of a Certificate (or effective affidavit of loss
in lieu thereof and a bond, if required, pursuant to Section 2.3(f)) or Book-Entry Share to
the Paying Agent, together with a properly completed letter of transmittal, duly executed, and such
other documents as may reasonably be requested by the Paying Agent, the holder of such Certificate
or Book-Entry Share will be entitled to receive in exchange therefor cash in an amount equal to the
Merger Consideration (after giving effect to any required tax withholdings)
for each Share (other than Excluded Shares and Dissenting Shares) formerly represented by such
Certificate or Book-Entry Share that such holder has the right to receive pursuant to this
Article II, and the Certificate or Book-Entry Share so surrendered will be cancelled. No
interest will be paid or accrued on any amount payable upon due surrender of the Certificates or
Book-Entry Shares. In the event of a transfer of ownership of Shares that is not registered in the
transfer records of the Company, the Merger Consideration to be paid upon due surrender of the
Certificate or Book-Entry Share may be paid to such a transferee if the Certificate or Book-Entry
Share formerly representing such Shares is presented to the Paying Agent, accompanied by all
15
documents required to evidence and effect such transfer and to evidence that any applicable stock
transfer Taxes have been paid or are not applicable.
(c) Withholding Taxes; Transfer Taxes. Parent, the Surviving Corporation or the
Paying Agent will be entitled to deduct and withhold from amounts otherwise payable pursuant to
this Agreement in connection with the Offer and the Merger to any holder of Shares, Company Stock
Options, Company Restricted Shares or Company RSU’s, as the case may be, any amounts required to be
deducted and withheld with respect to such payments under the Internal Revenue Code of 1986 (the
“Code”), and the rules and Treasury regulations thereunder (the “Treasury
Regulations”), or any provision of state, local or foreign Tax law. Any amounts so deducted and
withheld will be timely paid to the applicable Tax authority and will be treated for all purposes
of this Agreement as having been paid to the holder of the Shares, Company Stock Options, Company
Restricted Shares or Company RSUs, as the case may be, in respect of which such deduction and
withholding was made. All stock transfer, real estate transfer, documentary, stamp, recording and
other similar Taxes (including interest, penalties and additions to any such Taxes) incurred in
connection with the Offer or the Merger shall be paid by Parent, and the Company shall cooperate
with Parent in preparing, executing and filing any Tax Returns in respect of such Taxes.
(d) No Further Transfers. At the close of business on the day on which the Effective
Time occurs, there will be no transfers on the stock transfer books of the Company of Shares that
were outstanding immediately prior to the Effective Time other than to settle transfers of Shares
that occurred prior to such close of business. If, after such close of business, Certificates or
Book-Entry Shares are presented to the Paying Agent, they will be cancelled and exchanged for the
Merger Consideration as provided in this Article II.
(e) Termination of Payment Fund. Any portion of the Payment Fund that remains
undistributed to the holders of the Certificates or Book-Entry Shares eighteen (18) months after
the Effective Time will be delivered to the Surviving Corporation, on demand, and any holder of a
Certificate or Book-Entry Share who has not theretofore complied with this Article II will
thereafter look only to the Surviving Corporation and Parent for payment of such holder’s claims
for Merger Consideration. Notwithstanding the foregoing, to the fullest extent permitted by
applicable Law, none of Parent, Merger Sub, the Company, the Surviving Corporation, the Paying
Agent or any other Person will be liable to any former holder of Shares for any amount delivered to
a public official pursuant to applicable abandoned property, escheat or similar Laws.
(f) Lost, Stolen or Destroyed Certificates. In the event any Certificate has 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 customary amount and upon such terms as the
Surviving Corporation may reasonably determine are necessary as indemnity against any claim that
may be made against it with respect to such Certificate, the Paying Agent will issue, in exchange
for such lost, stolen or destroyed Certificate, the Merger Consideration pursuant to this
Agreement.
Section 2.4 Dissenting Shares. Notwithstanding any provision of this Agreement to the
contrary and to the extent provided under the DGCL, any Shares outstanding immediately
16
prior to the
Effective Time that are held by any stockholder that has neither voted in favor of the adoption of
this Agreement nor consented thereto in writing and that has demanded properly in writing appraisal
for such Shares and otherwise properly perfected and not withdrawn or lost such stockholder’s
rights in accordance with Section 262 of the DGCL (each such stockholder a “Dissenting
Stockholder,” and such Shares the “Dissenting Shares”) will not be converted into, or
represent the right to receive, the Merger Consideration. Such Dissenting Stockholders will be
entitled to receive payment of the appraised value of Dissenting Shares held by them in accordance
with the provisions of such Section 262, except that all Dissenting Shares held by stockholders who
have failed to perfect or who effectively have withdrawn or lost their rights to appraisal of such
Dissenting Shares pursuant to Section 262 of the DGCL will thereupon be deemed to have been
converted into, and represent the right to receive, the Merger Consideration in the manner provided
in this Article II and will no longer be Dissenting Shares. The Company will give Parent
prompt notice of any written demands for appraisal, attempted withdrawals of such demands, and any
other instruments served pursuant to applicable Law received by the Company relating to
stockholders’ rights of appraisal. The Company will give Parent the opportunity to participate in
and direct all negotiations and proceedings with respect to demands for appraisal. The Company
will not, except with the prior written consent of Parent, make any payment with respect to any
demands for appraisal of Dissenting Shares, offer to settle or settle any such demands or approve
any withdrawal or other treatment of any such demands.
Section 2.5 Treatment of Company Equity Awards(a) As of the Effective Time, each
option to acquire shares of Common Stock (a “Company Stock Option”) under the Company
Benefit Plans identified in Section 3.13(a) of the Company Disclosure Letter pursuant to which
Shares can be issued (the “Company Stock Plans”), whether vested or unvested, that is
outstanding immediately prior to the Effective Time shall become vested (a complete list of which
is set forth on Section 2.5(a) of the Company Disclosure Letter as of the date of this Agreement)
with respect to the maximum number of shares of Common Stock covered thereby and shall be
cancelled, and the holder of such Company Stock Option will thereafter be entitled to receive from
the Surviving Corporation an amount in cash equal to the product of (i) the excess, if any, of the
Merger Consideration over the exercise price per Share of such Company Stock Option multiplied by
(ii) the maximum number of Shares subject to such Company Stock Option with respect to which such
Company Stock Option shall not theretofore have been previously exercised.
(b) At the Effective Time, each Share subject to a restricted stock agreement under the
Company Stock Plans (each, a “Company Restricted Share”) that is outstanding
immediately prior to the Effective Time (a complete list of which is set forth on Section
2.5(b) of the Company Disclosure Letter as of the date of this Agreement) shall become fully vested
and free of all restrictions as of the Effective Time and shall, as of the Effective Time, be
cancelled and converted into the right to receive the Merger Consideration in accordance with
Section 2.2.
(c) As of the Effective Time, each restricted stock unit award with respect to Shares granted
by the Company under the Company Stock Plans (each, a “Company RSU”) that is outstanding
immediately prior to the Effective Time (a complete list of which is set forth on Section 2.5(c) of
the Company Disclosure Letter as of the date of this Agreement) shall be cancelled, and the holder
of such Company RSU shall be entitled to receive from the Surviving Corporation an amount in cash
equal to (i) the Merger Consideration multiplied by the maximum
17
number of Shares subject to such
Company RSU as of the Effective Time plus (ii) any dividend equivalents accrued with respect to
such Company RSU prior to the Effective Time but not yet distributed as of the Effective Time
(other than any such dividend equivalents that are held in the form of Company RSUs as of the
Effective Time).
(d) The amounts payable under Section 2.5(a), Section 2.5(b) and Section
2.5(c) shall be referred to herein as the “Equity Award Amounts.” All Equity Award
Amounts shall, subject to Section 2.3(b), be paid by the Surviving Corporation as promptly
as practicable following the Effective Time, without interest, except as necessary to comply with
Section 409A of the Code.
(e) The Company shall use reasonable efforts to ensure that, as of the Effective Time, the
Company Stock Plans shall terminate and no person shall have any right under the Company Stock
Plans, except as set forth herein.
(f) Prior to the Effective Time, the Company Board (or a committee thereof) will adopt such
resolutions and will take such other actions as shall be required to effect the actions
contemplated by this Section 2.5.
Section 2.6 Certificate of Incorporation and Bylaws.
(a) At the Effective Time, the Company’s certificate of incorporation (the “Company
Certificate”), as in effect immediately prior to the Effective Time, shall be amended and
restated to read in its entirety as set forth in Exhibit B attached hereto and, as so
amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter
amended as provided therein or by applicable Law; and
(b) The bylaws of the Company, as in effect immediately prior to the Effective Time, shall be
amended and restated to read in their entirety as the bylaws of Merger Sub (except that the name
shall change to the name of the Surviving Corporation) and, as so amended, shall be the bylaws of
the Surviving Corporation until thereafter amended as provided therein or by applicable Law.
Section 2.7 Directors and Officers of Surviving Corporation The directors and officers of Merger Sub as of the Effective Time shall, from and after the
Effective Time, be the directors and officers, respectively, of the Surviving Corporation until
their successors have been duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the certificate of incorporation or bylaws of the
Surviving Corporation.
Section 2.8 Stockholder Approval. Unless the Merger is consummated in accordance with
Section 253 of the DGCL as contemplated by Section 2.9 of this Agreement, if permitted by
applicable Law, the Company Organizational Documents and any applicable rule or regulation of any
stock exchange, as soon as practicable following the consummation of the Offer, but not earlier
than twenty days after an Information Statement is first distributed to the Company’s stockholders,
Parent and Merger Sub shall, as stockholders of the Company representing the Requisite Stockholder
Vote, adopt by written consent the “agreement of merger” (as such term is used in Section 251 of
the DGCL) without a meeting of the stockholders of the Company. The Company, acting through the
Company Board, shall take such actions as may be necessary under
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Law and the Company Organizational
Documents to permit the Requisite Stockholder Vote being obtained without a meeting of the
stockholders of the Company and without prior notice (except as required under the Exchange Act) by
written consent signed by the holders of Company Common Stock representing the Requisite
Stockholder Vote. If required by Law, the Company Organizational Documents or any applicable rule
or regulation of any stock exchange or otherwise, the Company, acting through the Company Board,
shall, in accordance with applicable Law, duly call, give notice of, convene and hold the Company
Stockholder Meeting as soon as practicable following the consummation of the Offer for the purpose
of adopting the “agreement of merger” (as such term is used in Section 251 of the DGCL) set forth
in this Agreement and include in the Proxy Statement the Company Board Recommendation; provided,
that nothing herein shall be deemed to limit Section 5.3(d). Parent and Merger Sub each agree that,
at the Company Stockholders Meeting, if such Company Stockholder Meeting is required, all of the
Shares acquired pursuant to the Offer or otherwise owned by Parent or Merger Sub or Parent’s
Subsidiaries will be voted in favor of the Merger.
Section 2.9 Short-Form Merger. If, following the Offer and any subsequent offering
period or the exercise of the Top-Up Option, Parent, Merger Sub, or any other direct or indirect
Subsidiary of Parent, shall own at least 90% of the outstanding shares of each class of capital
stock of the Company, each of Parent, Merger Sub and the Company shall (subject to Article VI) take
all necessary and appropriate action to cause the Merger to become effective, as soon as
practicable after the consummation of the Offer, without a meeting of stockholders of the Company,
in accordance with Section 253 of the DGCL.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the letter delivered to Parent and Merger Sub by the Company
concurrently with entering into this Agreement (the “Company Disclosure Letter”), the
Company represents and warrants to Parent and Merger Sub as follows:
Section 3.1 Organization; Power; Qualification . The Company and each of its Subsidiaries is a corporation, limited liability company or
other legal entity duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization. Each of the Company and its Subsidiaries has the requisite corporate
or similar power and authority to own, lease and operate its assets and to carry on its business as
now conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do
business as a foreign corporation, limited liability company or other legal entity and is in good
standing (to the extent such concept is legally recognized) in each jurisdiction where the
character of the assets and properties owned, leased or operated by it or the nature of its
business makes such qualification or license necessary, except where the failure to be so qualified
or licensed or in good standing would not reasonably be expected to have a Company Material Adverse
Effect.
Section 3.2 Corporate Authorization; Enforceability.
(a) The Company has the requisite corporate power and authority to enter into and to perform
its obligations under this Agreement and to consummate the Merger and the other transactions
contemplated by this Agreement, subject, in the case of the Merger, to receipt
of the
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Requisite
Stockholder Vote. The execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the Merger and the other transactions contemplated hereby have been
duly and validly authorized by the Company Board, subject, in the case of the Merger, to receipt of
the Requisite Stockholder Vote. No other corporate proceedings on the part of the Company are
necessary to approve this Agreement or to consummate the Merger or the other transactions
contemplated hereby other than, in the case of the Merger, the Requisite Stockholder Vote and the
filing of the Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the provisions of the DGCL. Subject to Section 5.3(d), the Company Board
has unanimously, by resolutions adopted at a meeting duly called and held, (i) approved and
declared advisable this Agreement, the Offer, the Merger and the other transactions contemplated
hereby, (ii) determined that the terms of this Agreement are fair to, and in the best interests of,
the Company and its stockholders, and (iii) resolved to recommend (A) that the Company’s
stockholders accept the Offer and tender their Shares to Merger Sub pursuant to the Offer and (B) a
vote in favor of adoption of the “agreement of merger” (as such term is used in Section 251 of the
DGCL) contained in this Agreement by the stockholders of the Company (the “Company Board
Recommendation”) and directed that the Agreement be submitted to the holders of the Shares for
their adoption of the plan of merger contained in this Agreement at a stockholders meeting duly
called and held for such purpose. The Requisite Stockholder Vote is the only vote of the holders of
any class or series of capital stock of the Company necessary for the Company to adopt this
Agreement and for the Company to consummate the Merger and the other transactions contemplated
hereby.
Section 3.3 Capitalization; Equity Awards. (a) The Company’s authorized capital stock
consists solely of 165,050,000 shares of Common Stock and 88,415,000 shares of preferred stock, par
value $0.001 per share, (the “Preferred Stock”). As of the close of business on February
17, 2009 (the “Measurement Date”), 21,449,718 shares of Common Stock were issued and
outstanding (including Company Restricted Shares), all of which are validly issued, fully paid and
nonassessable, and no shares of Preferred Stock were issued or outstanding. As of the Measurement
Date, 175,757 shares of Common Stock and no shares of Preferred Stock were held in the treasury of
the Company. No Shares are held by any Subsidiary of the Company. As of the Measurement Date,
Company Stock Options to purchase 2,474,883 shares of Common Stock were outstanding and 117,461
shares of Common Stock were subject to outstanding Company RSUs. As of the date of this Agreement,
except as set forth in this Section 3.3, or in Section 3.3 of the Company Disclosure
Letter, there are no outstanding shares of capital stock or securities or other rights convertible
or exchangeable into or exercisable for shares of capital stock of the Company. From the
Measurement Date through the date of this Agreement, other
20
than in connection with the issuance of
Shares pursuant to the exercise of Company Stock Options or settlement of Company RSUs, in each
case, outstanding as of the Measurement Date, there have been no issuances of any securities of the
Company.
(b) Section 3.3 of the Company Disclosure Letter sets forth a correct and complete list, as of
the date of this Agreement, of outstanding Company Restricted Shares, Company Stock Options and
Company RSUs, including the holder thereof, the date of grant, the term (in the case of Company
Stock Options), the number of Shares subject to such Company Stock Option or Company RSU, the
Company Stock Plan under which such award was granted and, where applicable, the exercise price.
(c) Except as set forth in this Section 3.3 and except pursuant to the Company Stock
Plans, there are no preemptive or other outstanding rights, options, warrants, conversion rights,
stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls or
commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue,
sell, or otherwise transfer to any Person, or to repurchase, redeem or otherwise acquire from any
Person, any Shares, Preferred Stock, capital stock of any Subsidiary of the Company, or securities
or other rights convertible or exchangeable into or exercisable for shares of capital stock of the
Company or any Subsidiary of the Company.
(d) There are no voting trusts or other agreements or understandings to which the Company is a
party with respect to the voting of the Common Stock other than the Tender Agreement.
(e) There are no agreements or understandings requiring consent or approval from the holder of
any Company Stock Options, Company Restricted Shares, Company RSUs or warrants to purchase any
Shares, Preferred Stock, or capital stock of the Company or any of its Subsidiaries to effectuate
the terms of this Agreement.
Section 3.4 Subsidiaries. Section 3.4 of the Company Disclosure Letter lists each
Subsidiary of the Company as of the date of this Agreement and the jurisdiction of organization of
each such Subsidiary. All of the issued and outstanding shares of capital stock, voting securities,
profits interests or other equity or equity-like interests of the Company’s Subsidiaries are
directly or indirectly owned, beneficially and of record, by the Company, free and clear of all
Liens, other than Liens created as a result of federal or state securities laws, Liens for Taxes
not yet due or that are being contested in good faith and Liens imposed or granted pursuant to or
in connection with the Company’s existing credit facilities or other outstanding indebtedness, and
all such shares or interests have been duly authorized, validly issued and fully paid and, in the
case of shares of capital stock issued by a corporate entity formed under the laws of the United
States, nonassessable, free of any preemptive rights.
Section 3.5 Required Filings and Consents. The execution, delivery and performance of
this Agreement by the Company do not, and the consummation by the Company of the transactions
contemplated by this Agreement, including the Offer and the Merger, will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any international,
foreign, national, federal, state, provincial or local governmental, regulatory or administrative
authority, including the SEC and any self-regulatory authority (“SRO”) (including
21
The
NASDAQ Global Market, or any successor entity or entities thereto (“NASDAQ”)), agency,
commission or court (each, a “Governmental Entity”), other than: (i) the filing and
recordation of the Certificate of Merger with the Secretary of State of the State of Delaware; (ii)
applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the “Exchange Act”) or the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (the “Securities Act”); (iii)
any filings with, and approvals from, relevant state securities administrators or related to the
blue sky laws of various states; (iv) the filing with the Securities and Exchange Commission (the
“SEC”) of the Information Statement or the Company Proxy Statement relating to a special
meeting of the holders of the Company’s Common Stock to consider the adoption of this Agreement
(the “Company Stockholders Meeting”); (v) the filings or notices required by, and any
approvals required under the rules and regulations of NASDAQ or other SROs; (vi) compliance with
and filings under (A) the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
“HSR Act”), if applicable, and (B) other applicable competition or merger control Laws of
any jurisdiction (the “Foreign Merger Control Laws”); and (vii) in such other circumstances
where the failure to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not reasonably be expected to have a Company Material Adverse
Effect.
Section 3.6 Non Contravention. The execution, delivery and performance of this
Agreement by the Company do not, and the consummation by the Company of the transactions
contemplated by this Agreement, including the Offer and the Merger, will not:
(a) conflict with or result in any breach of any provision of the certificates of
incorporation and bylaws (or the equivalent organizational documents) of the Company or any of its
Subsidiaries, in each case as in effect on the date of this Agreement (the “Company
Organizational Documents”);
(b) result in any violation, or the breach of, constitute a default, give rise to any right of
modification, termination, cancellation or acceleration under, or result in the creation or
imposition of a Lien under, any Material Contract to which the Company or any of its Subsidiaries
is a party or by which any of them is otherwise bound, except for such violations, breaches,
defaults, or rights of termination, cancellation or acceleration, or the imposition of Liens, as to
which requisite waivers or consents have been obtained or will be obtained prior to the Effective
Time;
(c) contravene or conflict with, or result in any violation or breach of, any material Permit
of the Company or any of its Subsidiaries; or
(d) violate in any material respect the provisions of any Law or Order applicable to the
Company or any of its Subsidiaries.
Section 3.7 Compliance with Laws and Permits.
(a) The Company and each of its Subsidiaries are and have been since January 1, 2005 in
compliance in all material respects with applicable Laws, including, but not limited to, applicable
statutes and implementing regulations administered or enforced by the United States Food and Drug
Administration.
22
(b) The Company and each of its Subsidiaries holds all material Permits necessary for the
ownership, operation and use of the respective properties and assets of the Company and its
Subsidiaries and the conduct of their respective businesses as currently conducted. All such
material Permits are in full force and effect and no suspension or cancellation of any of the
material Permits is pending or, to the Knowledge of the Company, threatened.
(c) Since January 1, 2006, no Governmental Entity has, to the Knowledge of the Company,
initiated, and no Governmental Entity has provided written notice to the Company or its
Subsidiaries of, any proceeding or investigation into the business or operations of the Company or
any of its Subsidiaries, except, in the case of any proceeding or investigation initiated or with
respect to which written notice was provided since the date of this Agreement, as would not,
individually or in the aggregate, be material to the Company and its Subsidiaries taken as a whole.
Section 3.8 Financial Reports and SEC Documents.
(a) The Company has filed or furnished all forms, statements, certifications, reports and
documents required to be filed with, or furnished to, the SEC pursuant to the Exchange Act since
January 1, 2006 (the forms, statements, reports and documents filed or furnished with the SEC since
January 1, 2006, including any exhibits and amendments thereto, the “Company SEC
Documents”). Each of the Company SEC Documents, at the time of its filing or furnishing (except
as and to the extent such Company SEC Document has been modified or superseded in any subsequent
Company SEC Document filed with, or furnished to, the SEC prior to the date of this Agreement),
complied in all material respects with the applicable requirements of each of the Exchange Act and
the Securities Act. As of their respective dates, except as and to the extent modified or
superseded in any subsequent Company SEC Document filed or furnished with the SEC prior to the date
of this Agreement, the Company SEC Documents did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made, not misleading. To
the Company’s Knowledge, as of the date of this Agreement, none of the Company SEC Documents is the
subject of ongoing SEC review, outstanding SEC investigation or outstanding material SEC comment.
(b) The Company maintains disclosure controls and procedures as required by Rule 13a-15 under
the Exchange Act. These disclosure controls and procedures were designed to ensure that (i)
material information required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the rules and forms of the SEC, and (ii) all such information is accumulated
and communicated to the Company’s management as appropriate to allow timely decisions regarding
disclosure and to make the certifications of the principal executive officer and principal
financial officer of the Company required under the Exchange Act with respect to such reports. The
Company is in compliance in all material respects with all provisions of the Xxxxxxxx-Xxxxx Act of
2002, and with all provisions of the NASDAQ Marketplace Rules, which are currently applicable to
it.
23
(c) The Company maintains internal control over financial reporting as required by Rule 13a-15
under the Exchange Act. This internal control over financial reporting was designed to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with accounting principles generally
accepted in the United States (“GAAP”) (and includes policies and procedures that (i)
pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial statements in accordance
with GAAP, and that receipts and expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company, and (iii) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition of the
Company’s assets that could have a material effect on its financial statements.
(d) Each of the consolidated balance sheets, statements of income, changes in stockholders’
equity and cash flows of the Company and its Subsidiaries included in or incorporated by reference
into the Company SEC Documents (including any related notes and schedules) (i) fairly presents in
all material respects the consolidated financial position of the Company and its Subsidiaries as of
the date of each such balance sheet, and the results of operations and cash flows of the Company
and its Subsidiaries, as the case may be, for the periods set forth in each such consolidated
statement of income, changes in stockholders’ equity and cash flows (subject, in the case of
unaudited statements, to the absence of notes and normal year-end audit adjustments), and (ii) has
in each case been prepared in accordance with GAAP consistently applied during the periods
involved, except as may be noted therein or in the notes thereto.
Section 3.9 Undisclosed Liabilities. As of the date of this Agreement, neither the
Company nor any of its Subsidiaries has any liabilities or obligations of any nature (whether or
not accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a
consolidated balance sheet of the Company and its Subsidiaries (including the notes thereto), other
than (i) liabilities or obligations in the amounts reflected on, or reserved against, in the
Company’s consolidated balance sheet as of December 31, 2007 (or the notes thereto) included in the
Company’s financial statements, (ii) liabilities or obligations incurred in the ordinary course of
business since December 31, 2007, (iii) liabilities or obligations that are not material to the
financial condition of the Company and its Subsidiaries, taken as a whole, and (iv) liabilities or
obligations incurred by the Company in connection with the transactions contemplated by this
Agreement, or in connection with any Legal Action, claim or investigation described in Subsection
(K) of the definition of Company Material Adverse Effect.
24
Section 3.10 Absence of Certain Changes.
(a) From December 31, 2007 through the date of this Agreement, the Company and its
Subsidiaries have conducted their respective businesses in all material respects in the ordinary
course of business consistent with past practice.
(b) From December 31, 2007 through the date of this Agreement, there has not been a Company
Material Adverse Effect, and there has not been any Change that would reasonably be expected to
have a Company Material Adverse Effect.
(c) From December 31, 2007 through the date of this Agreement, there have not been:
(i) any amendments or changes in the Company Organizational Documents;
(ii) 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 of its Subsidiaries other than in the
ordinary course of business consistent with past practice;
(iii) any split, combination or reclassification of any of the capital stock or other equity
interest of the Company or any of its Subsidiaries or any issuance or the authorization of any
issuance of any other securities in respect of, in lieu of or in substitution for shares of the
capital stock or other equity interest of the Company or any of its Subsidiaries;
(iv) any material change in accounting methods, principles or practices used by the Company
affecting its assets, liabilities or business, except insofar as may have been required by a change
in GAAP; or
(v) any action or event that would require Parent’s consent under Section 5.1 if such
action or event had occurred after the date of this Agreement.
(d) Except (i) as required pursuant to the terms of any Company Benefit Plan as in effect on
December 31, 2007, (ii) as required to comply with applicable Law (including Section 409A of the
Code) or (iii) in the ordinary course of business consistent with past practice, since December 31,
2007 through the date of this Agreement, there has not been any (A) grant or payment of any
severance or termination benefits to any director, officer or employee of the Company or any of its
Subsidiaries, (B) material increase in the compensation, perquisites or benefits payable to any
director, officer or employee of the Company or any of its Subsidiaries, (C) grant of equity or
equity-based awards that may be settled in Shares, Preferred Stock or any other securities of the
Company or any of its Subsidiaries or the value of which is linked directly or indirectly, in whole
or in part, to the price or value of any Shares, Preferred Stock or other Company securities or
Subsidiary securities, or (D) acceleration in the vesting or payment of compensation payable or
benefits provided or to become payable or to be provided to any current or former director, officer
or employee of the Company or any of its Subsidiaries.
Section 3.11 Litigation. There are no material (a) claims, actions, suits, demand
letters, judicial, administrative or regulatory proceedings, arbitrations, or hearings, notices of
violation
25
(each, a “Legal Action”), or, to the Company’s Knowledge, investigations before
any Governmental Entity pending or, to the Knowledge of the Company, threatened, against the
Company or any of its Subsidiaries, or (b) outstanding Orders against the Company or any of its
Subsidiaries or by which any property, asset or operation of the Company or any of its Subsidiaries
is bound or affected, except, in each case, of the nature described in Subsection (K) of the
definition of Company Material Adverse Effect.
Section 3.12 Contracts.
(a) As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a
party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K
promulgated under the Securities Act) to be performed in full or in part after the date of this
Agreement that has not been filed, described, or incorporated by reference in the Company SEC
Documents;
(ii) employment agreement pursuant to which an employee is entitled to receive a base salary
in excess of $100,000 per year (other than those that are terminable at will by the Company or any
of its Subsidiaries, as applicable, without cost, payment or penalty);
(iii) loan or guaranty agreement, indenture or other instrument, contract or agreement under
which in excess of $200,000 has been borrowed or loaned or any note, bond or other evidence of
indebtedness in excess of $200,000 has been issued, other than guarantees by the Company of real
property leases of certain of its subsidiaries;
(iv) mortgage, security agreement, conditional sales contract, capital lease or similar
agreement with total payments in excess of $200,000 per year or that effectively creates a lien,
encumbrance or security interest on any material assets of the Company or any of its Subsidiaries;
(v) any Leases requiring the Company to make payments in excess of $100,000 per year;
(vi) material partnership or joint venture agreement;
(vii) collective bargaining agreement;
(viii) agreements relating to the acquisition of any material assets or relating to the merger
or consolidation of the Company or any of its Subsidiaries with any other entity that have (A) not
been consummated as of the date hereof or (B) that, if consummated as of the date hereof, have any
remaining outstanding monetary obligations in excess of $200,000;
(ix) investment banking agreement of any kind or nature whatsoever;
(x) contract, whether as licensor or licensee, for the license of any patent, know-how,
trademark, trade name, service xxxx, copyright or other intangible asset that
26
provides for payments
by or to the Company or such Subsidiary in excess of $100,000 per year (other than licenses of
commercial off-the-shelf computer software);
(xi) contract which contains any provision that would prohibit or materially restrict the
ability of the Company or any of its Subsidiaries from engaging in business or from competing with
any other parties, including, but not limited to, operating in any geographical area;
(xii) other agreements (other than those listed in clauses (i) through (xi) above) (A) with a
term longer than one (1) year from the date hereof that involve payments by the Company and/or any
of its Subsidiaries in excess of $200,000 per year; or (B) with a term less than one (1) year from
the date hereof that involve payments by the Company and/or any of its Subsidiaries in excess of
$200,000, that are not terminable without premium or penalty on less than 30 days’ notice;
(xiii) agreements or insurance policies providing for indemnification of any officer or
director of the Company or any of its Subsidiaries, other than the existing directors’ and
officers’ insurance policies and the certificate of incorporation and bylaws or other
organizational documents, as currently in effect, of the Company and each of its Subsidiaries; or
(xiv) agreements evidencing a loan to any officer or director of the Company or any of its
Subsidiaries, other than advances for expenses pursuant to the Company’s standard expense
reimbursement policies.
Each contract, arrangement, commitment or understanding described in clauses (i) through (xiv),
filed in the Company SEC Documents, or set forth in Section 3.12(a) of the Company Disclosure
Letter, is referred to herein as a “Material Contract.”
(b) Each Material Contract is valid and binding on the Company and any of its Subsidiaries
that is a party thereto, as applicable, and in full force and effect, other than any such Material
Contract that expires or is terminated after the date hereof in accordance with its terms or
amended (as permitted by Section 5.1) by agreement with the counterparty thereto (provided
that, if any such Material Contract is so amended or terminated in accordance with its terms after
the date hereof, then to the extent the representation and warranty contained in this sentence is
made or deemed made as of any date that is after the date of such amendment or termination, the
reference to “Material Contract” in the first clause of this sentence shall be deemed to be a
reference to such contract as so amended and shall be deemed to exclude any such terminated
contract). The Company and each of its Subsidiaries has performed in all material respects all
obligations required to be performed by it to date under each Material Contract, except where such
noncompliance would not be material to the Company and its Subsidiaries, taken as a whole. Neither
the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party to
any Material Contract: (A) is in breach of or in default under any Material Contract, or (B) knows
of, or has received written notice of, the
existence of any event or condition which constitutes, or, after notice or lapse of time or
both, will constitute, a material default on the part of such party under any such Material
Contract. True and complete copies of all written Material Contracts and true and correct summaries
of all oral Material Contracts have been delivered or made available to Parent.
27
Section 3.13 Benefit Plans.
(a) Section 3.13(a) of the Company Disclosure Letter contains a list, as of the date of this
Agreement, of each “employee benefit plan” within the meaning of Section 3(3) of ERISA, including
each Multiemployer Plan and each other stock purchase, stock option, restricted stock, severance,
retention, employment, consulting, change-of-control, bonus, incentive (equity-based or otherwise),
deferred compensation, welfare benefit, fringe benefit and other benefit plan, agreement, program,
policy, commitment or other arrangement, whether or not subject to ERISA, in each case sponsored,
maintained or contributed to, or required to be sponsored, maintained or contributed to, by the
Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries
has any material liability (each, a “Company Benefit Plan”). No entity other than the
Company and its Subsidiaries is a member of the Company’s “controlled group” (within the meaning of
Section 414 of the Code). With respect to each such Company Benefit Plan, the Company has provided
or made available to Parent true, complete and correct copies of (i) each such Company Benefit
Plan; (ii) the most recent summary plan descriptions for each such Company Benefit Plan for which a
summary plan description is required by applicable Law; (iii) the three (3) most recent annual
reports on Form 5500 filed with the Internal Revenue Service (“IRS”); (iv) if the plan is
intended to qualify under Section 401(a) of the Code, the most recent determination letter or
opinion letter received from the IRS; (v) the most recent actuarial report and/or financial
statements, to the extent that any such reports or financial statements are required under
applicable Law to be prepared with respect to such Company Benefit Plan; (vi) all applicable
nondiscrimination testing for the three (3) most recent closed Company Benefit Plan years; and
(vii) any related trust agreement or funding instrument now in effect or required in the future as
a result of the transactions contemplated by this Agreement.
(b) No Company Benefit Plan is subject to Title IV of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), or Section 412 of the Code or is a Company Benefit Plan
that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA (a “Multiemployer
Plan”), or a plan that has two or more contributing sponsors, at least two of whom are not
under common control, within the meaning of Section 4063 of ERISA.
(c) Each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code has
been issued a favorable determination letter or opinion letter by the IRS with respect to such
qualification, its related trust has been determined to be exempt from taxation under Section
501(a) of the Code and no such determination letter has been revoked nor, to the Knowledge of the
Company, has revocation been threatened. Each Company Benefit Plan has been established, funded and
administered in compliance, in all material respects, with its terms and with the applicable
provisions of ERISA, the Code and other applicable Laws. All contributions required by applicable
Law to each Company Benefit Plan have been made by the
Company or its Subsidiaries as of the Effective Time with respect to current or prior plan
years in all material respects or such contributions have been accrued in all material respects in
accordance with GAAP.
(d) There are no Company Benefit Plans under which welfare benefits are provided to past
employees or made available to present employees of the Company and its Subsidiaries beyond their
retirement or other termination of service, other than coverage
28
mandated by the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”), Section 4980B of the Code, Part 6 of
Subtitle B of Title I of ERISA or any similar state group health plan continuation Laws. Other than
payroll practices, short-term disability or flexible spending accounts, no material Company Benefit
Plan is self-funded or funded from the general assets of the Company or its Subsidiaries.
(e) Except as provided in Section 2.5, neither the execution and delivery by the
Company of this Agreement nor the consummation by the Company of the transactions contemplated
hereby (alone or in combination with any other event) would: (i) result in any payment becoming
due, or increase the amount of any compensation or benefits due, to any current or former employee
of the Company or its Subsidiaries or with respect to any Company Benefit Plan (except as required
by applicable Law); (ii) increase any benefits otherwise payable under any Company Benefit Plan;
(iii) result in the acceleration of the time of payment or vesting of any such compensation or
benefits, other than vesting to comply with Section 401(a) of the Code; (iv) trigger the funding of
any compensation or benefits due to any current or former employee of the Company or its
Subsidiaries (except as required by applicable Law); (v) result in any “excess parachute payment”
within the meaning of Section 280G of the Code pursuant to any Company Benefit Plan or other plan
or agreement as in effect on the date of this Agreement; or (vi) result in any payment that would
be nondeductible under Code Section 162(m).
(f) Except as would not, individually or in the aggregate, reasonably be expected to result in
a material liability, none of the Company, any of its Subsidiaries, or any Company Benefit Plan,
nor to the Knowledge of the Company, any “disqualified person”(as defined in Section 4975 of the
Code) or “party in interest” (as defined in Section 3(14) of ERISA) with respect to any Company
Benefit Plan, has engaged in any non-exempt prohibited transaction (within the meaning of Section
4975 of the Code or Section 406 of ERISA) with respect to any Company Benefit Plan. With respect to
any Company Benefit Plan, as of the date of this Agreement, (i) no Legal Actions (including any
administrative investigation, audit or other proceeding by the Department of Labor or the IRS but
excluding routine claims for benefits in the ordinary course) are pending or, to the Knowledge of
the Company, threatened, and (ii) to the Knowledge of the Company, no events or conditions have
occurred or exist that would reasonably be expected to give rise to any such Legal Actions, except
in the case of both clauses (i) and (ii), as would not, individually or in the aggregate,
reasonably be expected to result in a material liability.
(g) Each Company Benefit Plan that is a nonqualified deferred compensation plan subject to
Section 409A of the Code is in compliance with Section 409A of the Code and any Internal Revenue
Service guidance issued thereunder, and to the Knowledge of the Company no amounts under any such
Company Benefit Plan are or have been subject to the interest and additional tax set forth under
Code Section 409A(a)(1)(B). The Company does not have any
actual or potential obligation to reimburse or otherwise gross-up any Person for the interest
or additional tax set forth under Code Section 409A(a)(1)(B). No Company Stock Option or Company
Restricted Share is subject to Section 409A of the Code.
(h) Except where such misclassification would not result in a material liability to the
Company and its Subsidiaries, taken as a whole, all employees, independent contractors,
29
consultants, leased employees or similar non-employee classification workers of the Company or any
of its Subsidiaries are properly classified as such.
(i) Each Company Benefit Plan established or maintained for the benefit of Canadian employees
has been administered in material compliance with all applicable Laws.
(j) Other than individual agreements, obligations accrued and vested pursuant to the Company
Benefit Plans or required by Laws, or as set forth on Section 3.13(j) of the Company Disclosure
Letter, each Company Benefit Plan may be amended or terminated at any time.
Section 3.14 Taxes.
(a) All material Tax Returns required to be filed by or with respect to the Company or any of
its Subsidiaries have been properly prepared and timely filed and all such Tax Returns are true,
correct and complete in all material respects. There are no adjustments relating to such Tax
Returns that have been proposed in writing by any Tax authority and there are no Tax liens on any
of the assets for Taxes that are not Permitted Liens. The Company has delivered or made available
to Parent true and complete copies of all material federal, state, and local income Tax Returns
filed since January 1, 2006.
(b) The Company and its Subsidiaries have paid, or will timely pay, all material Taxes
required to be paid by any of them shown as due and payable on such Tax Returns except to the
extent that such Taxes are being contested in good faith and the Company, or the appropriate
Subsidiary, has set aside reserves in accordance with GAAP. The Company and its Subsidiaries have
provided, in all material respects, for any Taxes that are not yet due and payable for all taxable
periods on the most recent financial statements contained in the Company SEC Documents to the
extent required by GAAP or in the case of foreign entities, in accordance with generally applicable
accounting principles in the relevant jurisdiction.
(c) As of the date of this Agreement, there are no outstanding agreements extending or waiving
the statutory period of limitations applicable to any claim for, or the period for the collection,
assessment or reassessment of, Taxes due from the Company or any of its Subsidiaries for any
taxable period and, to the Knowledge of the Company, no request for any such waiver or extension is
currently pending. The Company has not received any written requests for information by any Tax
authority that are currently outstanding that could adversely affect the Taxes of the Company or
any of its Subsidiaries; and there are no proposed material reassessments received in writing by
the Company of any property owned by the Company or
any of its Subsidiaries or other proposals that could materially increase the amount of any
Tax to which the Company or any of its Subsidiaries would be subject.
(d) As of the date of this Agreement, no audit or other proceeding by any Governmental Entity
is pending or, to the Knowledge of the Company, threatened with respect to any Taxes due from or
with respect to the Company or any of its Subsidiaries.
(e) Neither the Company nor any of its Subsidiaries is a party to any Tax sharing or similar
Tax agreement (other than an agreement exclusively between or among the
30
Company and its Subsidiaries) pursuant to which it will have any obligation to make any payments on account of
Taxes after the Closing Date. Neither the Company nor any of its Subsidiaries has any liability as
a result of being or having been, before the Closing Date, a member of an affiliated, consolidated,
combined or unitary group, other than a group of which the Company and its Subsidiaries are
currently members, or as a result of a Tax sharing, Tax indemnity or Tax allocation agreement.
(f) Neither the Company nor any of its Subsidiaries has participated in a “listed transaction”
within the meaning of Treasury Regulation Section 1.6011-4, other than a transaction exempted from
the reporting requirements of such Regulation.
(g) The Company and its Subsidiaries have timely withheld and paid all material Taxes required
to have been withheld and paid in connection with amounts paid or owing to any employee, creditor,
independent contractor, shareholder, member or other third party.
(h) The Company has not been a United States real property holding corporation within the
meaning of section 897(c)(2) of the Code during the applicable period identified in section 897(c)
(1)(A)(ii) of the Code.
(i) The Company has not distributed stock of another Person or has had its stock distributed
by another Person in a transaction that was purported or intended to be governed in whole or in
part by section 355 or 361 of the Code.
Section 3.15 Intellectual Property.
(a) Section 3.15(a) of the Company Disclosure Letter sets forth a list of all registered
Intellectual Property and material unregistered Intellectual Property which is owned by the Company
or its Subsidiaries and which is material to the conduct of the business of the Company and its
Subsidiaries, the “Company Owned Intellectual Property”).
(b) The Company or one or more of its Subsidiaries owns or otherwise has a valid right to use
all Intellectual Property necessary to conduct the business of the Company and its Subsidiaries as
such is conducted as of the date of this Agreement and as currently expected by the Company to be
conducted.
(c) Except as would not reasonably be expected to have a Company Material Adverse Effect, all
registered Company Intellectual Property has been duly registered and/or filed, as applicable, with
each applicable Governmental Entity in each applicable jurisdiction, all necessary affidavits of
continuing use have been filed, and all necessary maintenance fees have been paid to continue all
such rights in effect.
(d) To the Knowledge of the Company, none of the Company or its Subsidiaries has infringed
upon or otherwise violated, or is infringing upon or otherwise violating, the Intellectual Property
rights of any third party. To the Knowledge of the Company, no Person or any product or service of
any Person is infringing upon or otherwise violating any Company Owned Intellectual Property. No
licensor of any Intellectual Property which is used by the Company or its Subsidiaries and which is
material to the conduct of the business of the
31
Company or its Subsidiaries (“Company Licensed
Intellectual Property”) has notified the Company or any of its Subsidiaries in writing that any
Person or any product or service of any Person is infringing upon or otherwise violating in any
material respect any Company Licensed Intellectual Property.
(e) There are no outstanding Legal Actions instituted or pending against the Company or any of
its Subsidiaries or which, to the Knowledge of the Company, have been threatened in writing, with
respect to the infringement or violation by the Company or any of its Subsidiaries in any material
respect of the Intellectual Property rights of a third party. The Company has not been notified in
writing of any possible infringement or other violation, in any material respect, by the Company or
any of its Subsidiaries of the Intellectual Property rights of any third party.
(f) The Company and its Subsidiaries have taken commercially reasonable actions to protect,
preserve and maintain the Company Owned Intellectual Property and to maintain the confidentiality
and secrecy of their confidential information, trade secrets and proprietary information under
applicable Law.
(g) To the extent that any Software that is owned by a third party is distributed to customers
of the Company or any of its Subsidiaries together with the Company Owned Intellectual Property,
such third party rights have been identified in Section 3.15(g) of the Company Disclosure Letter,
all necessary licenses have been obtained for, and no royalties or payments are due from the
Company or any of its Subsidiaries in respect of, such Software.
(h) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i)
none of the source code of the Company or any of its Subsidiaries has been published or disclosed
by the Company or any of its Subsidiaries except pursuant to a non-disclosure agreement, and (ii)
except for source code provided to third party developers to make modifications or derivative works
for the benefit of the Company or any of its Subsidiaries, no licenses or rights have been granted
to a third person to distribute, or to otherwise use to create derivative works, the source code
for any Software that is used by the Company or that is commercially available from the Company or
any of its Subsidiaries.
(i) Except as set forth on Section 3.15 of the Company Disclosure Letter, the Company Owned
Intellectual Property and the Company Licensed Intellectual Property are owned or licensed, as the
case may be, free and clear of any Liens.
(j) Except as would not reasonably be expected to have a Company Material Adverse Effect, the
incorporation of any so-called “open source” software into any product of the Company or any
Subsidiary has not resulted in the license to a third party of any Intellectual Property owned by
the Company or any Subsidiary used in conjunction with such open source software.
(k) Assuming that all required consents are obtained as set forth in Section 6.2(d) of the
Company Disclosure Letter, the consummation of the transactions contemplated by this Agreement will
not result in the loss or impairment of the Company or any Subsidiary’s right to own or use any of
the Company Owned Intellectual Property or, except as would not
32
reasonably be expected to have a
Company Material Adverse Effect, Company Licensed Intellectual Property.
(l) Except as would not reasonably be expected to have a Company Material Adverse Effect,
neither the Company nor any Subsidiary has any liability under its contracts with customers for
replacement or repair of any product of the Company or any Subsidiary, except under the warranty
provisions and the support and maintenance provisions in such contracts (copies of which have been
delivered to Parent).
Section 3.16 Insurance. Section 3.16 of the Company Disclosure Letter lists each
material insurance policy maintained by the Company or its Subsidiaries and the respective
expiration dates thereof, and such policies are in full force and effect as of the date of this
Agreement. The Company and its Subsidiaries are in compliance in all material respects with
respect to their obligations under any of such insurance policies. Since January 1, 2006, neither
the Company nor any of its Subsidiaries has received any written notice of cancellation,
termination or material increase in premiums of any such policy or rejection of any material claim
thereunder, nor, to the Knowledge of the Company as of the date hereof, is there any basis for such
cancellation, termination or material increase. The Company has received from its current directors
and officers’ liability insurance program insurers, i.e., Chubb, Liberty Mutual Insurance Company,
and AXIS, a forty-five day extension through and until April 14, 2009 at 12:01 a.m. for each of the
four policies currently in place and previously scheduled to expire on March 1, 2009 at 12:01 a.m.
This forty-five day extension does not constitute an extended reporting period, rather it is an
extension of the policy period for the Company’s directors and officers’ liability insurance
program that commenced on February 8, 2008.
Section 3.17 Real Property. Section 3.17 of the Company Disclosure Letter lists any
and all (i) real property owned by the Company and its Subsidiaries (the “Real Property”)
and (ii) leases (including subleases) of real property and any modifications or amendments thereto
(the “Leases”), and with respect to the Leases (A) the rent (base and additional) due and
payable thereunder and (B) the respective
tenant’s proportionate share for taxes and operating expenses. The Company and each of its
Subsidiaries have good, valid and marketable fee title to the Real Property, free and clear of all
Liens, except for Permitted Liens and as expressly set forth on Section 3.17 of the Company
Disclosure Letter, and good and valuable leasehold interests in the Leases. The Leases are in good
standing, valid and effective against the Company and each of its Subsidiaries, as applicable, and
there is not under any Lease any existing material default by the Company or any of its
Subsidiaries or, to the Company’s Knowledge, the counterparties thereto, or any event which, with
notice or lapse of time or both, would become a material default by the Company or any of its
Subsidiaries or, to the Company’s Knowledge, the counterparties thereto. The Company and its
Subsidiaries have not entered into any agreements for the sale of the Real Property and will not
enter into any such agreements without Parent’s and Merger Sub’s consent.
Section 3.18 Takeover Statutes; No Rights Agreement(a) Assuming the accuracy of the
representations and warranties set forth in Section 4.10, the Company and the Company Board
have taken all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination or other similar anti-takeover provision under the Company
Certificate or the laws of Delaware or any other jurisdiction that is, or is reasonably likely to
33
become, applicable to the Company as a result of the transactions contemplated by this Agreement,
including the Merger.
(b) The Company has not adopted a stockholder rights plan or similar arrangement relating to
accumulations of beneficial ownership of Common Stock upon a change in control of the Company.
Section 3.19 Opinion of Financial Advisor. SunTrust Xxxxxxxx Xxxxxxxx, Inc.
(“SunTrust”) has delivered to the Company Board, its written opinion (or oral opinion
confirmed in writing) to the effect that, as of the date of this Agreement, the Merger
Consideration is fair to the stockholders of the Company from a financial point of view.
Section 3.20 Brokers and Finders. Other than SunTrust and Xxxxxxxxx & Company, Inc.,
no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or
commission in connection with the Merger or the other transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.
Section 3.21 Interested Party Transactions. Except for employment Contracts entered
into in the ordinary course of business consistent with past practice or filed or incorporated by
reference as an exhibit to a Company SEC Document, Section 3.21 of the Company Disclosure Letter
sets forth a list, as of the date hereof, of the Contracts or other arrangements under which the
Company or any of its Subsidiaries has any existing or future liabilities required to be reported
by the Company pursuant to Item 404 of Regulation S-K promulgated by the SEC (each such Contract or
other arrangement, an “Affiliate Transaction”).
Section 3.22 Environmental Matters.
(a) Neither the Company nor any of its Subsidiaries is the subject of any federal, state,
local or foreign investigation, decree, order or judgment, and neither the Company nor any of its
Subsidiaries has received any written notice or claim, or entered into any negotiations or
agreements with any person, relating to any material liability or remedial action under any
applicable Environmental Laws;
(b) The Company and its Subsidiaries have materially complied and currently materially comply
with all Environmental Laws;
(c) Neither the Company nor any of its Subsidiaries has manufactured, treated, stored,
disposed of, arranged for or knowingly permitted the disposal of, generated, handled or released
any Hazardous Substance or, to the Knowledge of the Company, owned or operated any property or
facility, in each case in a manner that has given or would reasonably be expected to give rise to
any material liability under Environmental Laws;
(d) To the Knowledge of the Company, no Hazardous Substances have been released or otherwise
come to be located at any property or facility owned or operated by the Company or any of its
Subsidiaries in a manner that is in material violation of any Environmental Law or that has given
or would reasonably be expected to give rise to any liability under Environmental Laws; and
34
(e) To the Knowledge of the Company, the Company and each of its Subsidiaries holds and is in
compliance, in all material respects, with all Permits required to conduct its business and
operations under all applicable Environmental Laws.
Section 3.23 Employee Matters(a) As of the date hereof, there are no labor or employment
claims, grievances, arbitration demands, actions, suits or disputes pending or, to the Knowledge of
the Company, threatened involving the Company or any of its Subsidiaries and any of their employees
or former employees, other than those that would not reasonably be expected to have a Company
Material Adverse Effect. Except as set forth on Section 3.23(a) of the Company Disclosure Letter,
there has been: (i) to the Knowledge of the Company, no labor union organizing or attempting to
organize any employee of the Company or any of its Subsidiaries into one or more collective
bargaining units; and (ii) no labor dispute, strike, work slowdown, work stoppage, picketing, or
lock out or other collective labor action by or with respect to any employees of the Company or any
of its Subsidiaries pending or occurring since January 1, 2006 or, to the Knowledge of the Company,
threatened against the Company or any of its Subsidiaries. Neither the Company nor any of its
Subsidiaries is a party to, or bound by, any collective bargaining agreement or other agreement
with any labor organization applicable to the employees of the Company or any of its Subsidiaries
and no such agreement is currently being negotiated.
(b) The Company and its Subsidiaries (i) are in compliance in all material respects with all
applicable Laws, regulations, policies and procedures, and collective bargaining and other
contractual obligations respecting employment and employment practices, terms and conditions of
employment, including all such obligations relating to health and safety, discrimination,
harassment, immigration, compensation, and wages and hours, and are not engaged in any unfair labor
practice as defined by the National Labor Relations Act, (ii) are not liable in any material
respect for any arrears of wages or any penalty for failure to comply with any of the foregoing and
(iii) are not liable for any material payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation benefits, social security or
other benefit or obligations for employees (other than routine payments to be made in the ordinary
course of business and consistent with past practice).
(c) To the Knowledge of the Company, no employee of the Company or any of its Subsidiaries has
provided or is providing information to any law enforcement agency regarding the commission or
possible commission of any crime or the violation or possible violation of any applicable Law
involving the Company or any of its Subsidiaries. None of the Company, any of its Subsidiaries or,
to the Knowledge of the Company, any officer, employee, contractor, subcontractor or agent of the
Company or any of its Subsidiaries has discharged, demoted, suspended, threatened, harassed or in
any other manner discriminated against an employee of the Company or any of its Subsidiaries in the
terms and conditions of employment because of any act of such employee described in 18 U.S.C.
Section 1514A(a).
(d) Neither the Company nor any of its Subsidiaries: (i) has had since January 1, 2006 any
mass layoff of employees, as defined under the Workers Adjustment and Retraining Notification Act
(“WARN”) (or other similar state law); or (ii) has implemented since January 1, 2006 any early mass
retirement or mass separation program.
35
Section 3.24 Certain Payments. Neither the Company nor, to the Knowledge of the
Company, any of the directors, executive officers, agent or employees of the Company or any of its
Subsidiaries acting in his or her capacity as a director, executive officer, agent or employee of
the Company or any of its Subsidiaries (a) has used or is using any corporate funds for any illegal
contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b)
has used or is using any corporate funds for any direct or indirect unlawful payments to any
foreign or domestic governmental officials or employees, (c) has violated or is violating any
provision of the Foreign Corrupt Practices Act of 1977, (d) has established or maintained, or is
maintaining, any unlawful fund of corporate monies or other properties, or (e) has made any bribe,
unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature.
Section 3.25 Suppliers Section 3.25 of the Company Disclosure Letter sets forth the
10 largest suppliers of the Company and its Subsidiaries, taken as a whole, for the year ended
December 31, 2008 based on aggregate payments made to such suppliers by the Company and its
Subsidiaries during such period (the “Significant Suppliers”). To the Knowledge of the
Company, since December 31, 2008 and through the date hereof, neither the Company nor any of its
Subsidiaries has received
from any of the Significant Suppliers any written notice of termination or material alteration
of any contract or business relationship governed thereby.
Section 3.26 Schedule 14D-9; Offer Documents. None of the information supplied or to
be supplied by or on behalf of the Company or any Affiliate of the Company for inclusion in the
Offer Documents will, at the times such documents are filed with the SEC and are mailed to
stockholders of the Company, 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, in light
of the circumstances under which they are made, not misleading. The Schedule 14D—9 will not, at
the time the Schedule 14D—9 is filed with the SEC and at all times prior to the Purchase Time,
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, in light of the circumstances under
which they are made, not misleading. Notwithstanding the foregoing, no representation or warranty
is made by the Company with respect to information supplied in writing by or on behalf of Parent,
Purchaser or any Affiliate of Parent or Purchaser expressly for inclusion in the Offer Documents or
the Schedule 14D-9. The Schedule 14D—9 will, at the time the Schedule 14D-9 is filed with the SEC,
at the time it is mailed to the stockholders of the Company, and at the time any amendment or
supplement thereto is filed with the SEC, comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations of the SEC thereunder.
Section 3.27 No Other Representations or Warranties. Except for the representations
and warranties contained in this Article III or in any certificates delivered by the Company in
connection with the Closing, each of Parent and Merger Sub acknowledges that neither the Company
nor any Person on behalf of the Company makes or has made any other express or implied
representation or warranty with respect to the Company or any of its Subsidiaries or with respect
to any other information provided or made available to Parent or Merger Sub in connection with the
transactions contemplated by this Agreement.
36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as set forth in the letter delivered by Parent and Merger Sub to the Company
concurrently with the execution of this Agreement (the “Acquiror Disclosure Letter”),
Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as follows:
Section 4.1 Organization and Power. Parent is a corporation, duly organized, validly
existing and in good standing under the Laws of the State of Delaware and has the requisite power
and authority to own, lease and operate its assets and properties and to carry on its business as
now conducted and as it will be conducted through the Effective Time. Merger Sub is a corporation,
duly organized, validly existing and in good standing under the Laws of the State of Delaware and
has the requisite power and authority to own, lease and operate its assets and properties and to
carry on its business as now conducted and as it will be conducted through the Effective Time.
Section 4.2 Corporate Authorization. Parent and Merger Sub each have the requisite
corporate or other power and authority to
enter into and to perform their respective obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of this Agreement by
each of Parent and Merger Sub and the consummation by each of Parent and Merger Sub of the
transactions contemplated hereby have been duly and validly authorized by all necessary corporate
action on the part of each of Parent and Merger Sub.
Section 4.3 Enforceability. This Agreement has been duly executed and delivered by
each of Parent and Merger Sub and, assuming the due authorization, execution and delivery of this
Agreement by the Company, constitutes a legal, valid and binding agreement of each of Parent and
Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, except
to the extent that the enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar Laws now or hereafter in effect
relating to creditor’s rights generally, (b) general principles of equity (regardless of whether
such enforcement is considered in a proceeding at law or in equity), and (c) the remedy of specific
performance and injunctive and other forms of equitable relief being subject to the discretion of
the Governmental Entity before which any enforcement proceeding therefor may be brought.
Section 4.4 Required Filings and Consents. The execution, delivery and performance of
this Agreement by each of Parent and Merger Sub do not, and the consummation by each of Parent and
Merger Sub of the transactions contemplated by this Agreement, will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any Governmental Entity
other than: (a) the filing and recordation of the Certificate of Merger with the Secretary of State
of the State of Delaware; (b) applicable requirements of the Exchange Act or the Securities Act;
(c) compliance with and filings under (i) the HSR Act, if applicable, and (ii) any applicable
requirements of any Foreign Merger Control Law; and (d) in such other circumstances where the
failure to obtain such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not reasonably be expected to have a Merger Sub Material Adverse Effect.
37
Section 4.5 Non Contravention. The execution, delivery and performance of this
Agreement by each of Parent and Merger Sub do not and the consummation by each of Parent and Merger
Sub of the transactions contemplated by this Agreement, including the Merger, will not:
(a) conflict with, or result in any breach of any provision of the certificate of
incorporation, bylaws or other organizational documents of either Parent or Merger Sub;
(b) result in any violation, or the breach of, or constitute a default under, give rise to any
right of modification, termination, cancellation or acceleration under, or result in the creation
or imposition of a Lien, under any Contract to which Parent or Merger Sub is a party or by which
any of them is otherwise bound, except for such violations, breaches, defaults, or rights of
termination, cancellation or acceleration, or the imposition of Liens as to which requisite
waivers or consents have been obtained or will be obtained prior to the Effective Time or
which would not reasonably be expected to have a Merger Sub Material Adverse Effect;
(c) contravene or conflict with, or result in any violation or breach of, any Permit of Parent
or Merger Sub except as would not reasonably be expected to have a Merger Sub Material Adverse
Effect; or
(d) violate the provisions of any Law or Order applicable to Parent or Merger Sub, except for
any such violations that would not reasonably be expected to have a Merger Sub Material Adverse
Effect.
Section 4.6 Absence of Litigation. As of the date of this Agreement, there is no
Legal Action pending, or to the Knowledge of Parent, threatened, against Parent or any of its
Affiliates before any Governmental Entity that would or seeks to materially delay the consummation
of the Offer or the Merger or otherwise prevent or materially delay Parent or Merger Sub from
performing their obligations hereunder. As of the date hereof, neither Parent nor any of its
Affiliates is subject to any continuing order of, consent decree, settlement agreement or other
similar written agreement with, any Governmental Entity, or any order, judgment, injunction or
decree of any Governmental Entity that would or seeks to prevent or materially delay the
consummation of the Offer or the Merger or otherwise prevent or materially delay Parent or any of
its Affiliates from performing their obligations hereunder.
Section 4.7 Financing.
At the date hereof, Parent and Merger Sub have, and at the Purchase Time and at the Closing,
Parent and Merger Sub will have, immediately available funds sufficient to pay the aggregate Offer
Price or Merger Consideration, as the case may be, and any other payments contemplated by this
Agreement and to pay all fees and expenses of Parent and Merger Sub related to the Offer, the
Merger or any other transactions contemplated by this Agreement.
Section 4.8 Operations of Parent and Merger Sub Merger Sub was formed solely for the
purpose of engaging in the transactions contemplated by this Agreement and has not engaged in any
business activities or conducted any operations other than in connection with the transactions
contemplated by this Agreement.
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Section 4.9 Management Agreements. Except as contemplated in this Agreement, there
are no Contracts, understandings or arrangements between Parent or Merger Sub or any of their
Affiliates, on the one hand, and any member of the Company’s management or the Company Board, on
the other hand. Neither Parent nor Merger Sub, alone or together with any other Person, has been
at any time, or became, an “interested stockholder” or has taken any action that would cause any
anti-takeover statute
under the DGCL to be applicable to this Agreement, the Merger or any other transaction
contemplated by this Agreement.
Section 4.10 No Other Representations and Warranties. Except for the representations
and warranties contained in this Article IV or in any certificates delivered by Parent or
Merger Sub in connection with the Closing, the Company acknowledges that neither Parent, Merger Sub
nor any Person on behalf of Parent or Merger Sub makes or has made any other express or implied
representation or warranty with respect to Parent or Merger Sub or with respect to any other
information provided or made available to the Company in connection with the transactions
contemplated by this Agreement.
Section 4.11 Offer Documents; Schedule 14D-9. (a) The Offer Documents will not, at
the times such documents are filed with the SEC and are mailed to stockholders of the Company,
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, in light of the circumstances under
which they are made, not misleading. Notwithstanding the foregoing, no representation or warranty
is made by the Parent with respect to information supplied in writing by or on behalf of the
Company or any Affiliate of the Company expressly for inclusion in the Offer Documents. The Offer
Documents will, at the time the Offer Documents are filed with the SEC, at the time they are mailed
to the stockholders of the Company, and at the time any amendment or supplement thereto is filed
with the SEC, comply as to form in all material respects with the provisions of the Exchange Act
and the rules and regulations of the SEC thereunder.
(b) None of the information supplied or to be supplied by or on behalf of the Parent or any
Affiliate of the Parent for inclusion in the Schedule 14D-9 will, at the times such document is
filed with the SEC and at all times prior to the Purchase Time, 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, in light of the circumstances under which they are made, not misleading.
(c) The information supplied by Parent and Merger Sub expressly for inclusion in the Company
Proxy Statement will not contain at the time the Company Proxy Statement is first mailed to
stockholders of the Company, or at the time of the Company Stockholders Meeting, any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, Parent and Merger Sub make no
representation or warranty with respect to any information supplied in writing by or on behalf of
the Company that is contained in the Company Proxy Statement or any amendment or supplement
thereto.
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ARTICLE V
COVENANTS
COVENANTS
Section 5.1 Conduct of Business of the Company. Except as expressly contemplated by this Agreement, as set forth in Section 5.1 of the
Company Disclosure Letter or otherwise required by Law, without the prior written consent of Parent
(which shall not be unreasonably withheld or delayed), from the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement in accordance with Article
VII, the Company will, and will cause each of its Subsidiaries to, (x) conduct its operations,
in all material respects, in the ordinary course of business, and (y) use its commercially
reasonable efforts to: maintain and preserve intact its business organization, keep available the
services of its current officers, employees, consultants and independent contractors, and preserve,
in all material respects, the Company’s goodwill and its current relationships with material
customers, licensees and suppliers and other persons and entities with which the Company has
material business relations. Without limiting the generality of the foregoing, except with the
prior written consent of Parent (which shall not be unreasonably withheld or delayed), as expressly
contemplated by this Agreement or as set forth in Section 5.1 of the Company Disclosure Letter or
otherwise required by Law, from the date of this Agreement until the earlier of the Effective Time
or the termination of this Agreement in accordance with Article VII, the Company will not,
and will cause each of its Subsidiaries not to, directly or indirectly, take any of the following
actions:
(a) amend the Company Organizational Documents;
(b) declare, set aside, or pay any dividend or make any other distribution with respect to any
shares of its capital stock or otherwise make any payments to stockholders in their capacity as
such; provided, however, that this Section 5.1(b) shall not apply to dividends or
distributions paid by a Subsidiary to the Company or any other Subsidiary of the Company in the
ordinary course of business;
(c) (i) split, combine, subdivide or reclassify its capital stock, (ii) purchase, redeem, or
otherwise acquire any shares of its capital stock, or any securities or other rights convertible or
exchangeable into or exercisable for any shares of its capital stock, other than (A) the
acquisition by the Company of shares of Common Stock in connection with the surrender of shares of
Common Stock by holders of Company Stock Options in order to pay the exercise price of the Company
Stock Options, (B) the withholding of shares of Common Stock to satisfy Tax obligations with
respect to awards granted pursuant to the Company Stock Plans, (C) the acquisition by the Company
of Company Stock Options, Company Restricted Shares and Company RSUs in connection with the
forfeiture of such awards, or (D) the acquisition on the open market by the trustee of the
Company’s 401(k) Plan of shares of Common Stock in order to satisfy participant investment
elections under the Company’s 401(k) Plan, (iii) issue, grant, deliver, sell, pledge, transfer,
convey, dispose of or permit the imposition of any Lien or other encumbrance on any shares of its
capital stock, any options, warrants, securities exercisable, exchangeable or convertible into any
shares of its capital stock or any outstanding stock appreciation rights, stock awards, restricted
stock, restricted stock awards, performance units, phantom stock, profit participation or similar
rights with respect to the Company or any of its Subsidiaries or any shares of the Company’s
capital stock, other than (A) pursuant to the exercise of Company Stock Options and settlement of
Company RSUs outstanding as of the date of this
40
Agreement, (B) as required pursuant to any Company
Benefit Plan or (C) the sale by the trustee of the Company’s 401(k) Plan of shares of Common Stock
in order to satisfy participant investment elections under the Company’s 401(k) Plan, or (iv) enter
into any Contract,
understanding or arrangement with respect to the sale, voting, pledge, encumbrance,
disposition, acquisition, transfer, registration or repurchase of its capital stock or such
securities or other rights, except in each case as permitted under Section 5.1(d);
(d) except (i) in the case of officers, employees, independent contractors and consultants of
the Company or its Subsidiaries in the ordinary course of business or as required pursuant to
existing written agreements, (ii) as required pursuant to the terms of any Company Benefit Plan (or
related trust agreement), (iii) as otherwise expressly permitted by this Agreement, or (iv) with
the prior written consent of Parent (which shall not be unreasonably withheld or delayed), (A)
increase the compensation or benefits payable to any directors, officers or employees of the
Company or its Subsidiaries or enter into any new bonus or incentive arrangement with directors,
officers or employees of the Company or its Subsidiaries, (B) grant or pay any severance or
termination pay to any of the directors, officers or employees of the Company or its Subsidiaries,
(C) enter into any new employment or severance agreement with any directors, officers or employees
of the Company or its Subsidiaries, (D) establish, adopt, enter into, amend or take any action to
accelerate rights or fund benefits under any Company Benefit Plan, or (E) otherwise make any change
in any compensation arrangement or contract with any present or former employee, officer, director,
independent contractor, consultant, or stockholder or establish, terminate or materially amend any
Company Benefit Plan or materially increase benefits (including acceleration of benefits) under any
Company Benefit Plan, or grant any awards under any Company Benefit Plan, provided, however, that
the foregoing clauses (A), (C), (D) and (E) shall not restrict the Company or any of its
Subsidiaries from entering into or making available to newly hired employees or promoted employees,
in each case in the ordinary course of business, plans, agreements, benefits and compensation
arrangements that have a value that is consistent with the Company’s past practice of making
compensation and benefits available to newly hired or promoted employees in similar positions. The
Company shall confer with Parent (i) prior to implementing any reduction in force of Company
employees and (ii) with respect to the implementation of a bonus program to incent key employees to
remain with the Company until after the Closing;
(e) sell, lease, license or otherwise dispose of or effect a Lien on any assets with a value
in excess of $50,000 individually or $200,000 in the aggregate, other than in the ordinary course
of business;
(f) license, lease, acquire, sublease, grant any Lien (other than Permitted Liens) affecting
and/or transfer any material interest in any material asset other than leases entered into in the
ordinary course of business, or enter into any amendment, extension or termination of any leasehold
interest in any property other than in the ordinary course of business;
(g) make any acquisitions of, capital contributions to, or investments in, by purchase of
stock or other equity interests, or by merger, consolidation or other business combination, of any
business, corporation, partnership, limited liability company, association, joint venture or other
entity, or make any purchases of any material property or assets from any
41
Person (other than a
wholly-owned Subsidiary of the Company), other than purchases of current assets in the ordinary
course of business;
(h) incur, assume, guarantee or prepay any indebtedness for borrowed money or offer, place or
arrange any issue of debt securities or commercial bank or other credit facilities, other than
short-term borrowings by the Company in the ordinary course of business pursuant to the Company’s
existing credit facilities and consistent with past practice, or an incurrence of indebtedness that
does not cause the principal amount of outstanding indebtedness of the Company to exceed $1,000,000
at any time;
(i) make any material loans, advances or capital contributions to, or investments in, any
other Person, other than contributions or investments (i) to or in Subsidiaries, (ii) among
Subsidiaries, (iii) constituting advances of expenses to employees in the ordinary course of
business, or (iv) pursuant to Contracts existing on the date of this Agreement;
(j) authorize or make any capital expenditure, other than (i) as specifically provided on
Schedule 5.1 to the Company Disclosure Letter or (ii) capital expenditures of approximately
$100,000 following the date hereof;
(k) change its financial accounting principles, policies or procedures, other than as required
by Law or GAAP, or write up, write down or write off the book value of any assets of the Company
and its Subsidiaries, other than in any such case (i) in the ordinary course of business, or (ii)
as may be required by Law or GAAP;
(l) waive, release, assign, settle or compromise any material Legal Action, other than as
reflected or reserved against in the most recent audited financial statements of the Company (or
the notes thereto) included in the Company SEC Documents (for amounts not in excess of such
reserves);
(m) (i) settle or compromise any material Tax audit, make or change any material Tax election
or file any material amendment to a material Tax Return, (ii) except as required by applicable Law,
change any annual Tax accounting period or adopt or change any material Tax accounting method, or
(iii) enter into any material closing agreement, surrender any right to claim a material refund of
Taxes or consent to any extension or waiver of the limitation period applicable to any material Tax
claim or assessment relating to the Company or its Subsidiaries;
(n) other than as permitted hereunder, satisfy, discharge, waive or settle any material right
or obligation, other than in the ordinary course of business;
(o) enter into, terminate or materially amend any Material Contract (it being agreed, for
avoidance of doubt, that ordinary course licenses by the Company of its commercial off-the-shelf
computer software are not Material Contracts for purposes of this Agreement);
(p) (i) eliminate the positions of any employees, (ii) terminate the employment of employees
except for terminations of individual employees based on such employee’s failure to properly
perform his or her duties and responsibilities, or (iii) terminate the employment of two or more
employees;
42
(q) fail to use its diligent efforts to keep in force insurance policies or replacement or
revised provisions providing insurance coverage with respect to the assets,
operations and activities of the Company and its Subsidiaries substantially as the same are
currently in effect, and in no event will such coverage not be commercially reasonable, taking into
account the circumstances of the Company and its Subsidiaries; or
(r) agree or commit to do any of the foregoing.
Section 5.2 Access to Information; Confidentiality.
(a) Subject to applicable Law and that certain confidentiality agreement by and between the
Company and Parent, dated as of December 21, 2007 (the “Confidentiality Agreement”), and
solely with respect to financing sources that are not a party to any Confidentiality Agreement as
of the date of this Agreement other confidentiality provisions reasonably acceptable to the
Company, the Company will provide and will cause its Subsidiaries and its and their respective
Representatives to provide Parent and its Representatives and financing sources, at Parent’s
expense, during normal business hours and upon reasonable advance notice (i) such access to the
officers, management employees, offices, properties, books and records of the Company and such
Subsidiaries (so long as such access does not unreasonably interfere with the operations of the
Company or the performance of their duties) as Parent reasonably may request, and (ii) subject to
applicable Law and the Company’s existing written policies with respect to the protection of
employee privacy and protection of attorney-client privilege and attorney work product, all
documents that Parent reasonably may request.
(b) The Company makes no representation or warranty as to the accuracy of any information
provided pursuant to Section 5.2(a), and neither Merger Sub nor Parent may rely on the
accuracy of any such information, in each case other than as expressly set forth in the Company’s
representations and warranties contained in Article III.
(c) All non-public or otherwise confidential information regarding the Company or any of its
Subsidiaries obtained by Parent or its Representatives shall be kept confidential by Parent and its
Representatives in accordance with the Confidentiality Agreement.
Section 5.3 Limitations on Solicitation.
(a) Subject to Section 5.3(b) and Section 5.3(d):
(i) The Company shall not, shall cause its officers, directors and Subsidiaries not to, and
shall not authorize its Representatives to initiate, solicit or knowingly encourage or knowingly
facilitate the submission of any Takeover Proposal, or engage in negotiations with respect thereto.
(ii) The Company shall not, shall cause its officers, directors, and Subsidiaries not to, and
shall not authorize its Representatives to approve or recommend, or publicly propose to approve or
recommend, a Takeover Proposal, or effect a Recommendation Change, or enter into any merger
agreement, letter of intent, agreement in principle, purchase agreement, option agreement or other
similar agreement providing for a Takeover Proposal.
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(b) Notwithstanding anything to the contrary contained in this Section 5.3, if prior
to the Purchase Time, (i) the Company has received a written Takeover Proposal from a third party
that the Company Board determines in good faith (after consultation with its financial advisor and
outside legal counsel) to be bona fide, (ii) the Company has not intentionally or materially
breached this Section 5.3, (iii) the Company Board determines in good faith (after
consultation with its financial advisor and outside legal counsel) that such Takeover Proposal
constitutes or is reasonably expected to lead to a Superior Proposal, and (iv) the Company Board
determines in good faith (after consultation with its outside legal counsel) that the failure to
take the actions described in clauses (A) and (B) below could result in a violation of its
fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (A)
furnish information with respect to the Company and its Subsidiaries to the Person making such
Takeover Proposal, and (B) participate, engage or assist in any manner in discussions or
negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal;
provided, however, the Company (x) will not, and will not allow its Subsidiaries or
authorize its or their Representatives to, disclose any non-public information to such Person
without first entering into a confidentiality agreement with such Person that contains
confidentiality provisions that are not materially less restrictive in the aggregate to such Person
than those provisions contained in the Confidentiality Agreement are to Parent, and (y) will
promptly provide to Parent any non-public information concerning the Company or its Subsidiaries
provided to such other Person which was not previously provided to Parent.
(c) Subject to the fiduciary duties of the Company Board, in the event the Company receives:
(i) any Takeover Proposal or any bona fide proposal or offer with respect to a Takeover Proposal;
(ii) any request for non-public information relating to the Company or any of its Subsidiaries
concerning a Takeover Proposal; or (iii) any bona fide inquiry or request for discussions or
negotiations regarding any Takeover Proposal, the Company shall promptly, but in no event later
than two (2) Business Days thereafter, notify Parent and disclose to Parent the material terms of
such Takeover Proposal, request or inquiry.
(d) Notwithstanding anything in Section 5.3(a)(ii) to the contrary, if at any time
prior to the Purchase Time, (A) the Company Board determines in good faith (after consultation
with its financial advisor and outside legal counsel) that a Takeover Proposal received by the
Company constitutes a Superior Proposal, and (B) the Company Board determines in good faith (after
consultation with its outside legal counsel) that failing to take such action could result in a
breach of the fiduciary duties of the Company Board under applicable Law, the Company Board may
(x) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner
adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend or endorse, or
propose publicly to recommend or endorse, any Takeover Proposal (a “Recommendation
Change”), and/or (y) cause the Company to terminate this Agreement in order to enter into a
definitive agreement with respect to such Superior Proposal; provided, however,
that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) and any
such purported termination shall be void ab initio, unless in advance of or concurrently with such
termination the Company pays the Company Termination Fee as required by Section 7.6(a)(ii)
and simultaneously with such termination enters into an acquisition agreement, merger agreement or
similar definitive agreement (the “Alternative Acquisition Agreement”) and terminates this
Agreement in compliance with Section 7.4(c) and provided, further, that the
Company Board may not make a Recommendation Change
44
or terminate this Agreement pursuant to the foregoing clause (y) and any such purported
termination shall be void ab initio unless the Company shall have provided prior written notice to
Parent, at least three (3) Business Days in advance (the “Notice Period”), of its intention
to take such action with respect to such Superior Proposal, which notice shall specify the material
terms and conditions of such Superior Proposal. During the Notice Period, the Company shall, and
shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the
extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and
conditions of this Agreement, and the Company Board shall take into account any changes to the
financial and other terms of this Agreement proposed by Parent and Merger Sub (in the form of a
binding, written and complete proposal, including all exhibits, ancillary agreements, schedules and
necessary amendments to the terms of this Agreement) in response to any such written notice by the
Company or otherwise, so that the Takeover Proposal ceases to constitute a Superior Proposal (it
being understood and agreed that any amendment to the financial terms or other material terms of
such Superior Proposal shall require a new written notice by the Company and a new three (3)
Business Day period).
(e) Subject to this Section 5.3 the Company shall not terminate, waive, amend or
modify any material provision of any standstill or confidentiality agreement to which it is a party
that relates to a transaction of a type described in the definition of Takeover Proposal;
provided, however¸ that the Company may permit to be taken any of the actions
prohibited under a standstill agreement if the Company Board determines in good faith, after
consultation with outside counsel, that failure to take such action would be inconsistent with its
fiduciary duties to the stockholders of the Company under applicable Law.
(f) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i)
complying with its disclosure obligations under United States federal or state Law with regard to a
Takeover Proposal, including taking and disclosing to the stockholders of the Company a position
with respect to any tender or exchange offer by a third party pursuant to Rule 14e-2(a) or Rule
14d-9 promulgated under the Exchange Act (or any similar communication to stockholders) or (ii)
making any required (based on the good faith determination of the Company Board) “stop, look and
listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the
Exchange Act.
(g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub
and their respective Affiliates) from the restrictions on “business combinations” contained in
Section 203 of the DGCL (or any similar provisions of any other Law) or otherwise cause such
restrictions not to apply unless such actions are taken simultaneously with a termination of this
Agreement.
Section 5.4 Notices of Certain Events.
(a) The Company will notify Parent and Merger Sub (and provide copies if applicable) of (i)
any written or, to the Knowledge of the Company, oral communication from (x) any Governmental
Entity or (y) any third party alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement (and the
response thereto from the Company, its Subsidiaries or its Representatives), (ii) any
communication from any Governmental Entity in connection with the transactions contemplated
45
by this Agreement (and the response thereto from the Company, its Subsidiaries or its Representatives),
(iii) the commencement or threat, in writing, of any Legal Action affecting the Company or any of
its Subsidiaries or any of their respective properties or assets, or, to the Knowledge of the
Company, any employee, agent, director or officer, in his or her capacity as such, which if pending
on the date hereof, would have been required to have been disclosed by the Company pursuant to this
Agreement or which relates to the transactions contemplated by this Agreement (and the response
thereto from the Company, its Subsidiaries or its Representatives), (iv) any event, change,
occurrence, circumstance or development between the date of this Agreement and the Effective Time
of which causes, or would reasonably be expected to cause, any condition to the obligations of the
Company to effect the Merger and the other transactions contemplated by this Agreement not to be
satisfied, (v) any material failure of the Company to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder, and (vi) the occurrence of
an event which would reasonably be expected to have a Company Material Adverse Effect or that would
otherwise reasonably be expected to cause a condition in Article VI not to be satisfied.
With respect to any of the foregoing, the Company will consult with Parent and Merger Sub and their
Representatives so as to permit the Company and Parent and their respective Representatives to
cooperate to take appropriate measures to avoid or mitigate adverse consequences that may result
from any of the foregoing.
(b) Parent and Merger Sub will notify the Company of (i) any written or, to the Knowledge of
Parent or Merger Sub, oral communication from (x) any Governmental Entity or (y) any third party
alleging that the consent of such Person (or another Person) is or may be required in connection
with the transactions contemplated by this Agreement (and the response thereto from Parent and
Merger Sub or their Representatives), (ii) any communication from any Governmental Entity in
connection with the transactions contemplated by this Agreement (and the response thereto from
Parent and Merger Sub or their Representatives), (iii) the commencement or threat in writing of any
Legal Actions affecting Parent or any of its Affiliates that are related to the transactions
contemplated by this Agreement (and the response thereto from Parent and Merger Sub or their
Representatives), (iv) any event, change, occurrence, circumstance or development between the date
of this Agreement and the Purchase Time and the Effective Time, as the case may be, of which Parent
or Merger Sub learns and which causes, or is reasonably expected to cause, any condition to the
obligations of Parent or Merger Sub to effect the Offer or the Merger and the other transactions
contemplated by this Agreement not to be satisfied, (v) any material failure of Parent or Merger
Sub to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied
by it hereunder; and (vi) the occurrence of any event that would reasonably be expected to cause a
condition in Article VI or Annex A not to be satisfied. With respect to any of the
foregoing, Parent and Merger Sub will consult with the Company and its Representatives so as to
permit the Company and Parent and Merger Sub and their respective Representatives to cooperate to
take appropriate measures to avoid or mitigate adverse consequences that may result from any of the
foregoing.
Section 5.5 Information Statement; Company Proxy Statement. The parties will take
all necessary action such that the letter to stockholders and information statement that may be
provided to stockholders of the Company in connection with the Merger (including any amendments or
supplements) and any schedules required to be filed with the SEC in connection therewith
(collectively, the “Information Statement”) or, if required by applicable Law, the letter
46
to stockholders, notice of meeting, proxy statement and form of proxy that may be provided to
stockholders of the Company in connection with the Merger (including any amendments or supplements)
and any schedules required to be filed with the SEC in connection therewith (collectively, the
“Company Proxy Statement”) will not, at the time the Information Statement or Company Proxy
Statement, as applicable, is first mailed and at the time of the Company Stockholders Meeting, if
one is held, 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, in light of the
circumstances under which they are made, not misleading. The parties will take all necessary action
such that the Information Statement or Company Proxy Statement, as applicable, will, at the time
the such document is first mailed, at the time any amendment or supplement thereto is filed with
the SEC, and at the time of the Company Stockholders Meeting, if one is held, comply as to form in
all material respects with the provisions of the Exchange Act and the rules and regulations of the
SEC promulgated thereunder.
(b) Unless the Merger is consummated in accordance with Section 253 of the DGCL as
contemplated by Section 2.9, as soon as practicable after the consummation of the Offer, the
Company shall, subject to the prior review and approval of Parent and Merger Sub (which approval
shall not be unreasonably withheld) prepare and file with the SEC the Information Statement or, if
required, the Company Proxy Statement in preliminary form as required by the Exchange Act and the
rules and regulations promulgated thereunder. The Company shall obtain and furnish the information
required to be included in the Information Statement or Company Proxy Statement, as applicable,
shall provide Parent and Merger Sub with, and consult with Parent and Merger Sub regarding, any
comments that may be received from the SEC or its staff with respect thereto, shall, subject to the
prior review and approval of Parent and Merger Sub (which approval shall not be unreasonably
withheld), respond promptly to any such comments made by the SEC or its staff with respect to the
Information Statement or Company Proxy Statement, as applicable, and shall cause the Information
Statement or Company Proxy Statement, as applicable, in definitive form to be mailed to the
Company’s stockholders at the earliest practicable date. If at any time prior to the Closing, any
information relating to the Offer, the Merger, the Company, Parent, Merger Sub or any of their
respective Affiliates, directors or officers, should be discovered by the Company or Parent which
should be set forth in an amendment or supplement to the Information Statement or Company Proxy
Statement, as applicable, so that the Information Statement or Company Proxy Statement shall not
contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading, the party which discovers such information shall
promptly notify the other party, and an appropriate amendment or supplement describing such
information shall be filed with the SEC and, if required, otherwise disseminated to the
stockholders of the Company.
(c) The Company and Parent each agrees, as to itself and its Subsidiaries, that none of the
information supplied or to be supplied by it or its Subsidiaries for inclusion or incorporation by
reference in the Information Statement or the Company Proxy Statement and any amendment or
supplement thereto will, at the date of mailing to stockholders and at the time of the Company
Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, except that no
47
covenant is made by
the Company with respect to statements made or incorporated by reference therein based on
information supplied by Parent or any of its Subsidiaries in connection with the preparation of the
Information Statement or the Company Proxy Statement for inclusion or incorporation by reference
therein. The Company agrees that the Information Statement and the Company Proxy Statement will
comply as to form in all material respects with the requirements of the Exchange Act.
Section 5.6 Employees; Benefit Plans.
(a) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans
(including any severance, retention, change of control and similar plans, agreements, offer
letters, offer summaries and other written arrangements, but excluding any commitment,
understanding or promise to grant equity compensation) in accordance with their terms as in effect
immediately prior to the Effective Time, subject to any amendment or termination thereof that may
be expressly permitted by the terms of such Company Benefit Plans. During the period from the
Effective Date through the first (1st) anniversary of the Effective Time (the
“Continuation Period”), the Surviving Corporation will provide all employees of the Company
and its Subsidiaries as of the Effective Time who continue employment with the Surviving
Corporation (“Employees”) with benefits under employee benefit plans (within the meaning of
Section 3(3) of ERISA) and other perquisites and fringe benefits (collectively, “Employee
Benefits”), other than equity based compensation, that are substantially similar in the
aggregate, on a group rather than an individual basis, than the Employee Benefits provided by the
Company and its Subsidiaries as in effect at the Effective Time; provided, however, that, subject
to the requirements of the portion of this sentence that precedes this proviso, nothing herein
shall (i) require that the Surviving Corporation maintain or continue any particular Company
Benefit Plan or (ii) interfere with the Surviving Corporation’s right or obligation to make changes
to any Company Benefit Plan or New Plan. Notwithstanding anything to the contrary set forth herein,
subject to Section 5.6(a), nothing herein shall preclude the Surviving Corporation from
terminating the employment of any Employee.
(b) For all purposes under the employee benefit plans of the Surviving Corporation and its
Affiliates providing benefits to any Employees after the Effective Time (the “New Plans”),
the Surviving Corporation shall cause each Employee to receive credit for all service with the
Company and its Affiliates before the Effective Time (including predecessor or acquired entities or
any other entities with respect to which the Company and its Affiliates have given credit for prior
service) to the extent recognized in any similar Company Benefit Plans in which such Employee
participated immediately prior to the Closing (such service, “Pre-Closing Service”) for all
purposes, other than benefit accruals unless such accrual credit is required by
law, including determining eligibility to participate, level of benefits and vesting except to
the extent such credit would result in a duplication of accrual of benefits for the same period of
service. In addition, and without limiting the generality of the foregoing, (A) each Employee
immediately will be eligible to participate, without any waiting time, in any New Plan to the
extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit
Plan in which such Employee participated immediately before the Effective Time (such plans,
collectively, the “Old Plans”), and (B) for purposes of each New Plan providing medical,
dental, pharmaceutical, vision and/or disability benefits to any Employee, the Surviving
Corporation will use its commercially reasonable efforts to cause all pre-existing condition
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exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and
his or her covered dependents, to the extent any such exclusions or requirements were waived or
were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving
Corporation will cause any eligible expenses incurred by such Employee and his or her covered
dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s
participation in the corresponding New Plan begins to be taken into account under such New Plan for
purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements
applicable to such Employee and his or her covered dependents for the applicable plan year as if
such amounts had been paid in accordance with such New Plan.
(c) If requested by Parent no later than ten days prior to the Closing, the Company shall take
(or cause to be taken) all actions necessary or appropriate to terminate, effective no later than
the day prior to the date on which the Merger becomes effective, any Company Benefit Plan that
contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a
“Company 401(k) Plan”). If the Company is required to terminate any Company 401(k) Plan,
then the Company shall, at the request of Parent, provide to Parent prior to the Closing Date
written evidence of the adoption by the Company Board of Directors of resolutions authorizing the
termination of such Company 401(k) Plan (the form and substance of which resolutions shall be
subject to the prior review of Parent). The Company also shall take such other actions in
furtherance of terminating such Company 401(k) Plan as Parent may reasonably request. Any actions
taken under this Section 5.6(c) shall be made contingent upon the consummation and Closing
of the Transaction.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties to
this Agreement, and no current or former employee, director, independent contractor or consultant
of the Company or its Subsidiaries or any other Person associated therewith shall be regarded as a
third party beneficiary of this Section 5.6. No provision of this Agreement shall be
construed as amending any Company Benefit Plan and any provisions hereof regarding Company Benefit
Plans shall not become effective unless and until the Company Board or any other entity overseeing
such Company Benefit Plans takes such action as they deem necessary and appropriate to implement
such provisions. Neither the Company Board’s nor any other entities’ approval of this Agreement,
nor the execution of this Agreement by an officer or director of the Company, shall constitute the
required action to amend any such Company Benefit Plan.
Section 5.7 Directors’ and Officers’ Indemnification and Insurance.
(a) In the event of any threatened or actual Legal Action, whether civil, criminal or
administrative, including any such Legal Action or investigation in which any present or former
director or officer of the Company or any of its Subsidiaries (together, the “Indemnified
Parties”) is, or is threatened to be, made a party based in whole or in part on, or arising in
whole or in part out of, or pertaining in whole or in part to, any action or failure to take action
by any such Person in such capacity taken prior to the Effective Time (including with respect to
any action or failure to take action occurring in connection with the approval of this Agreement
and the consummation of the Merger or any of the other transactions contemplated hereby), Parent
and the Surviving Corporation (each, an “Indemnifying Party”) will, jointly and severally,
from and after the Effective Time, indemnify, defend and hold harmless, as and to the fullest
extent permitted or required by applicable Law and required by the Company
49
Organizational Documents
(or any similar organizational document of the Company or any of its Subsidiaries), and when
applicable any indemnity agreements applicable to any such Indemnified Party or any Contract
between an Indemnified Party and the Company or one of its Subsidiaries, in each case, in effect on
the date of this Agreement, against any losses, claims, damages, liabilities, costs, reasonable
legal and other expenses (including reimbursement for reasonable legal and other fees and expenses
incurred in advance of the final disposition of any Legal Action or investigation to each
Indemnified Party), judgments, fines and amounts paid in settlement incurred by such Indemnified
Party in connection with such Legal Action or investigation. To the extent permitted by applicable
Law and the Company Organizational Documents, Parent shall, or shall cause the Surviving
Corporation to, promptly advance all out-of-pocket expenses of each Indemnified Party in connection
with any such Legal Action or investigation as such expenses (including reasonable attorneys’ fees
and disbursements) are incurred upon receipt from such Indemnified Party of a request therefor;
provided, however, (if and to the extent required by the DGCL or other applicable
Law or the Company Organizational Documents) that such Indemnified Party undertakes to repay such
amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified
under the DGCL or other applicable Law or the Company Organizational Documents with respect to such
Legal Action or investigation. In the event any Legal Action or investigation is brought against
any Indemnified Party, Parent and the Surviving Corporation shall each use all commercially
reasonable efforts to assist in the vigorous defense of such matter; provided,
however, that (i) neither Parent nor the Surviving Corporation shall settle, compromise or
consent to the entry of any judgment in any Legal Action or investigation (and in which
indemnification could be sought by such Indemnified Party hereunder) without the prior written
consent of such Indemnified Party if and to the extent such settlement, compromise or judgment
involves non-monetary relief from such Indemnified Party and (ii) no Indemnifying Party shall be
liable for any settlement, compromise or consent to the entry of any judgment in any Legal Action
or investigation effected without its prior written consent.
(b) For a period of six (6) years after the Effective Time, the Surviving Corporation shall
maintain in effect the Company’s current directors’ and officers’ liability insurance and fiduciary
liability insurance (the “D&O Insurance”) in respect of acts or omissions occurring at or
prior to the Effective Time, covering each Person currently covered by the D&O Insurance (a
complete and accurate copy of which has been heretofore made available to Parent), on terms with
respect to the coverage, deductible and amounts no less favorable in the aggregate than those of
the D&O Insurance in effect on the date of this Agreement; provided, however, that
(x) in satisfying its obligations under this Section 5.7(b) the Surviving Corporation shall
not be
obligated to pay annual premiums in excess of 200% of the amount currently paid by the Company
(which premiums are set forth in Section 5.7(b) of the Company Disclosure Letter), it being
understood and agreed that the Surviving Corporation shall nevertheless be obligated to provide the
maximum amount of such coverage as may be obtained for such annual 200% amount, and (y) in the
event of the application of clause (x), any Indemnified Party, upon reasonable written notice
thereof (which notice shall be provided no later than thirty (30) days prior to the Effective Time
and shall set forth in reasonable detail for each Person to be covered the policy coverage,
premiums, deductibles, limitations and other pertinent information), who desires to obtain
additional coverage such that, when combined with the coverage obtained by the Surviving
Corporation in accordance with clause (x), it provides insurance coverage equivalent to the D&O
Insurance in effect on the date hereof, may so elect and, if available the
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Surviving Corporation
shall acquire such additional coverage on behalf of such Person; provided, however,
that in the event any Indemnified Party makes such an election, such Indemnified Party shall pay
the portion of the premium of such D&O Insurance in excess of the amount which the Surviving
Corporation is obligated to pay pursuant to this Section 5.7. The Company shall purchase,
in consultation with Parent and subject to Parent’s prior approval, which approval shall not be
unreasonably withheld or delayed, as soon as practicable after the date of this Agreement, a six
(6)-year pre-paid “tail policy” on terms and conditions (in both amount and scope) providing
substantially equivalent benefits as the current D&O Insurance maintained by the Company and its
Subsidiaries with respect to matters arising on or before the Effective Time, covering without
limitation the transactions contemplated hereby. Any pre-paid tail policy purchased pursuant to
this Section 5.7(b) shall be subject to a cap of $725,000 on the amount to be expended to
purchase such policy. In either case, any such policy, when fully paid for, shall be in lieu of
satisfying the Surviving Corporation’s obligations pursuant to the first sentence of this
Section 5.7(b). The obligation to maintain insurance provided in this Section
5.7(b) shall continue in full force and effect for a period of not less than six (6) years from
and after the Effective Time; provided, however, that in the event any claim or
claims are asserted or made within such six (6)-year period, the Surviving Corporation shall ensure
that such insurance remains in full force and effect with respect to such claims until final
disposition thereof.
(c) Following the Effective Time, the Surviving Corporation and each of its Subsidiaries shall
include and maintain in effect in their respective certificates of incorporation or bylaws (or
similar organizational documents) for a period of six (6) years after the Effective Time,
provisions regarding the elimination of liability of directors (or their equivalent),
indemnification of officers and directors thereof and advancement of expenses which are, with
respect to each such entity, no less advantageous to the Indemnified Parties than the corresponding
provisions contained in such organizational documents as of the date of this Agreement.
(d) If the Surviving Corporation or any of its successors or assigns shall (i) consolidate
with or merge into any other Person and shall not be the continuing or surviving corporation or
entity of such consolidation or merger, or (ii) transfer all or substantially all of its properties
and assets to any Person, then, and in each such case, proper provisions shall be made so that the
successors and assigns of the Surviving Corporation (or acquirer of such assets) shall assume all
of the obligations of the Surviving Corporation set forth in this Section 5.7.
(e) The provisions of this Section 5.7 will survive the Closing and are intended to be
for the benefit of, and will be enforceable by, each Indemnified Party and its successors and
representatives after the Effective Time and their rights under this Section 5.7 are in
addition to, and will not be deemed to be exclusive of, any other rights to which an Indemnified
Party is entitled, whether pursuant to Law, Contract, the Company Organizational Documents (or
similar organizational documents of the Surviving Corporation or any of its Subsidiaries) or
otherwise.
Section 5.8 Reasonable Efforts.
(a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance
with applicable Laws, each of the parties to this Agreement will use its
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reasonable best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable to ensure that the conditions set forth in Article VI and Annex A are
satisfied and to consummate the transactions contemplated by this Agreement as promptly as
practicable, including (i) obtaining all necessary actions or non-actions, waivers, consents and
approvals from any Governmental Entity, (ii) if applicable, making, as promptly as practicable, an
appropriate filing with the United States Federal Trade Commission (the “FTC”) and the
Antitrust Division of the United States Department of Justice (the “Antitrust Division”) of
a Notification and Report Form pursuant to the HSR Act with respect to the transactions
contemplated hereby, as applicable, which filings shall specifically request early termination of
the waiting period prescribed by the HSR Act, and submitting as promptly as practicable any
supplemental information requested in connection therewith pursuant to the HSR Act, (iii) making,
as promptly as practicable, appropriate filings under any Foreign Merger Control Law, if required,
(iv) obtaining all consents, approvals or waivers from, or taking other actions with respect to,
third parties necessary or advisable to be obtained or taken in connection with the transactions
contemplated by this Agreement (provided, however, in no event shall obtaining such consents,
approvals or waivers be required as a condition to consummating the Offer or Closing hereunder),
(v) subject to first having used its commercially reasonable efforts to negotiate a reasonable
resolution of any objections underlying such lawsuits or other legal proceedings, defending and
contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging
this Agreement or the consummation of the transactions contemplated by this Agreement, including
seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated
or reversed, and (vi) executing and delivering any additional instruments necessary to consummate
the transactions contemplated hereby, and to fully carry out the purposes of this Agreement.
(b) Parent and Merger Sub and the Company will cooperate and consult with each other in
connection with the making of all such filings, notifications and any other material actions
pursuant to this Section 5.8, subject to applicable Law, by permitting counsel for the
other party to review in advance, and consider in good faith the views of the other party in
connection with, any proposed material written communication to any Governmental Entity and by
providing counsel for the other party with copies of all filings and submissions made by such party
and all correspondence between such party (and its advisors) with any Governmental Entity and any
other information supplied by such party and such party’s Affiliates to or received
from any Governmental Entity in connection with the transactions contemplated by this
Agreement; provided, however, that material may be redacted (x) as necessary to
comply with contractual arrangements, (y) as necessary to address good faith legal privilege or
confidentiality concerns and (z) as necessary to comply with applicable Law. Neither Parent and
Merger Sub nor the Company shall consent to any voluntary extension of any statutory deadline or
waiting period or to any voluntary delay of the consummation of the transactions contemplated by
this Agreement at the behest of any Governmental Entity without the consent of the other party
(which consent shall not be unreasonably withheld, delayed or conditioned).
(c) Each of Parent and Merger Sub and the Company will promptly inform the other party upon
receipt of any material communication from the FTC, the Antitrust Division, or any Governmental
Entity regarding any of the transactions contemplated by this Agreement. If Parent and Merger Sub
or the Company (or any of their respective Affiliates) receives a request for additional
information or documentary material from any such Person that is related to the
52
transactions
contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other party, an appropriate
response in compliance with such request. The parties agree not to participate, or to permit their
Affiliates to participate, in any substantive meeting or discussion with the FTC, the Antitrust
Division, or any Governmental Entity in connection with the transactions contemplated by this
Agreement unless, except where prohibited by Law, it so consults with the other party in advance
and, to the extent not prohibited by the FTC, the Antitrust Division, or such Governmental Entity,
gives the other party the opportunity to attend and participate. Each party will advise the other
party promptly of any understandings, undertakings or agreements (oral or written) which the first
party proposes to make or enter into with the FTC, the Antitrust Division, or any Governmental
Entity in connection with the transactions contemplated by this Agreement. In furtherance and not
in limitation of the foregoing, each party will use its commercially reasonable efforts (i) to
resolve any objections that may be asserted with respect to the transactions contemplated by this
Agreement under any antitrust, competition, premerger notification, trade regulation or merger
control Law, including (subject to first having used commercially reasonable efforts to negotiate a
resolution to any such objections) contesting and resisting any action or proceeding, and (ii) to
have vacated, lifted, reversed or overturned any decree, judgment, injunction or other Order,
whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the Merger or the other transactions contemplated by this Agreement and
to have such statute, rule, regulation, decree, judgment, injunction or other Order repealed,
rescinded or made inapplicable so as to permit consummation of the transactions contemplated by
this Agreement.
Section 5.9 Public Announcements. The initial press release concerning this Agreement
or the transactions contemplated hereby shall be a joint press release and, thereafter, so long as
the Agreement remains in effect, the parties agree that no public release or announcement
concerning the transactions contemplated by this Agreement shall be issued by either party without
the prior consent of the other party (which consent shall not be unreasonably withheld, conditioned
or delayed), except as such release or announcement shall be required by Law or the rules or
regulations of any securities exchange in which case the party required to make the release or
announcement shall use its commercially reasonable efforts to allow the other party reasonable time
to comment on
such release or announcement in advance of such issuance; provided, however, that each of
Parent and the Company may make any public statement in response to specific questions by the
press, analysts, investors or those attending industry conferences or financial analyst conference
calls, so long as any such statements are not inconsistent with previous public releases or
announcements made by Parent or the Company in compliance with this Section 5.9 and do not
reveal non-public information regarding the other party; provided, further, however, that the
Company may issue any public release or announcement, without prior consultation with Parent,
contemplated by, or with respect to any Recommendation Change or any other action taken in
connection with Section 5.3.
Section 5.10 Fees and Expenses. All expenses (including those payable to
Representatives) incurred by any party to this Agreement or on its behalf in connection with this
Agreement and the transactions contemplated by this Agreement will be paid by the party incurring
those expenses, except as otherwise provided in Section 5.7, Section 5.13 and
Section 7.6; provided, however, that Parent shall pay any filing fee under
the HSR Act, if applicable.
53
Section 5.11 Takeover Statutes. If any takeover statute is or becomes applicable to
this Agreement, the Offer, the Merger or the other transactions contemplated by this Agreement,
each of Parent, Merger Sub and the Company and their respective boards of directors will (a) take
all necessary action to ensure that such transactions may be consummated as promptly as practicable
upon the terms and subject to the conditions set forth in this Agreement, and (b) otherwise act to
eliminate or minimize the effects of such takeover statute.
Section 5.12 Resignations. The Company shall use its reasonable best efforts to
obtain and deliver to Parent at the Closing evidence reasonably satisfactory to Parent of the
resignation effective, as of the Effective Time, of those directors and officers of the Company or
any Subsidiary of the Company designated by Parent to the Company in writing prior to the Closing.
Section 5.13 Conduct of Business of Parent and Merger Sub Pending the Merger. Each of
Parent and Merger Sub agrees that, between the date of this Agreement and the Effective Time, it
shall not, directly or indirectly, knowingly take or permit any action (a) to cause its
representations and warranties set forth in Article IV to be untrue in any material
respect; or (b) that would, or would reasonably be expected to, individually or in the aggregate,
prevent, materially delay or materially impede the ability of Parent and Merger Sub to consummate
the Offer or the Merger or the other transactions contemplated by this Agreement.
Section 5.14 Control of Operations. Without in any way limiting any party’s rights or
obligations otherwise set forth under this Agreement, the parties understand and agree that (i)
nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control
or direct the Company’s operations
prior to the Effective Time and (ii) prior to the Effective Time, the Company shall exercise,
consistent with the terms and conditions of this Agreement, complete control and supervision over
its operations.
Section 5.15 Tender Agreement. Contemporaneously with the execution of this
Agreement, the Company shall cause the Tender Agreement to be delivered to Parent from each of the
Company’s executive officers and directors, and their Affiliates, identified on Exhibit C.
Section 5.16 Transfer Taxes. The Company and Parent shall cooperate in the
preparation, execution and filing of all returns, questionnaires, applications or other documents
regarding any sales, transfer, stamp, stock transfer, value added, use, real property transfer or
gains and any similar Taxes which become payable in connection with the transactions contemplated
by this Agreement. Notwithstanding anything to the contrary herein, each of Parent and the
Surviving Corporation agrees to assume liability for and pay any sales, transfer, stamp, stock
transfer, value added, use, real property transfer or gains and any similar Taxes, as well as any
transfer, recording, registration and other fees that may be imposed upon, payable or incurred in
connection with this Agreement and the transactions contemplated hereby.
ARTICLE VI
CONDITIONS TO THE MERGER
CONDITIONS TO THE MERGER
Section 6.1 Conditions to the Obligations of Each Party. The respective obligation of
each party to this Agreement to effect the Merger is subject to the satisfaction or waiver on or
prior to the Closing Date of each of the following conditions:
54
(a) Stockholder Approval. Unless the Merger is consummated pursuant to Section 253 of
the DGCL, as contemplated by Section 2.9 of this Agreement, the Requisite Stockholder Vote shall
have been obtained.
(b) Regulatory Approvals. (a) If applicable, the waiting period applicable to the
consummation of the Merger under the HSR Act (or any extension thereof) shall have expired or early
termination thereof shall have been granted and (b) if any Foreign Merger Control Law is applicable
to the transactions contemplated hereby, then the applicable Governmental Entity shall have given
all necessary approvals or consents, except for those approvals or consents the failure of which to
obtain would not be material to the Company and its Subsidiaries, taken as a whole.
(c) No Injunctions or Restraints. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent)
which is then in effect that have the effect of making the Merger illegal or otherwise preventing
or prohibiting the consummation of the Merger. No Governmental Entity shall have commenced and not
withdrawn any proceeding seeking to enjoin or otherwise prohibit consummation of the Merger.
(d) Consummation of Offer. Merger Sub shall have accepted for purchase and paid for
the Shares tendered (and not withdrawn) pursuant to the Offer.
Section 6.2. It shall be a condition to the Parent’s obligation to effect the Merger that the
Company shall have filed with the SEC its Annual Report on Form 10-K for the fiscal year ended
December 31, 2008.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
TERMINATION, AMENDMENT AND WAIVER
Section 7.1 Termination by Mutual Consent. This Agreement may be terminated and the
Offer and the Merger may be abandoned at any time prior to the Effective Time, by mutual written
consent of Parent and the Company.
Section 7.2 Termination by Either Parent or the Company. This Agreement may be
terminated by either Parent or the Company by written notice at any time prior to the Effective
Time:
(a) whether prior to or after the satisfaction of the condition set forth in Section
6.1(a), if the Purchase Time is not on or before July 31, 2009 (the “Outside Date”);
provided, however, that Parent shall not be entitled to terminate the Agreement on
the Outside Date if Merger Sub is otherwise required to accept for payment and pay for shares
validly tendered and not withdrawn on the Outside Date in accordance with Section
1A.1(iii); or
(b) if any Law or Governmental Entity prohibits consummation of the Merger or if any Order
restrains, enjoins or otherwise prohibits consummation of the Merger, and such Order has become
final and nonappealable; provided, however that the party seeking to terminate
55
this
Agreement pursuant to this Section 7.2(b) shall have used all reasonable best efforts to
prevent the entry of and to remove or avoid such prohibition or Order to the extent within its
control or influence;
provided, however, that in each case the right to terminate this Agreement under
this Section 7.2 will not be available to any party to this Agreement whose failure to
fulfill any of its obligations under this Agreement has been a principal cause of, or resulted in,
the failure of a condition to the Merger.
Section 7.3 Termination by Parent. This Agreement may be terminated and the Merger
may be abandoned by Parent by written notice at any time prior to the Purchase Time:
(a) (i) due to a failure of any of the Offer Conditions to be satisfied at the scheduled
expiration of the Offer (as the same may have been extended pursuant to the terms of this
Agreement), the Offer shall have expired or been terminated and Merger Sub shall not have accepted
for payment and paid for Shares pursuant to the Offer in accordance with the terms
thereof; provided, that Parent shall not have the right to terminate this Agreement pursuant
to this Section 7.3(a)(i) if any of the events or circumstances referred to in this
Section 7.3(a)(i) directly or indirectly resulted from or was caused by Parent’s failure to
comply in any material respect with any of its obligations, covenants or agreements under this
Agreement or by the failure of any representation or warranty of the Parent or Merger Sub contained
in this Agreement to be true and correct; or
(ii) if, (i) the Company Board shall have made a Recommendation Change, (ii) the Company Board
approves, endorses or recommends any Takeover Proposal other than the Merger or has entered into
any letter of intent or similar document or any contract accepting any Takeover Proposal, or (iii)
the Company has intentionally and knowingly materially breached any of its obligations under
Section 5.3;
(b) if a breach of any representation, warranty, covenant or agreement on the part of the
Company set forth in this Agreement shall have occurred which would give rise to the failure of the
Offer Condition set forth in either Paragraph 1(e) or Paragraph 1(f) of Annex
A to this Agreement to be satisfied, and such breach is incapable of being cured by the Outside
Date; provided, however, that neither Parent nor Merger Sub shall be entitled to terminate this
Agreement at such time if (A) any material covenant of Parent or Merger Sub contained in this
Agreement shall have been breached in any material respect, and such breach shall not have been
cured; or (B) there exists a material breach of or inaccuracy in any representation or warranty of
Parent or Merger Sub contained in this Agreement which has not then been cured.
Section 7.4 Termination by the Company. This Agreement may be terminated by the
Company by written notice if, at any time prior to the Purchase Time:
(a) if (i) due to a failure of any of the Offer Conditions to be satisfied at the scheduled
expiration of the Offer (as the same may have been extended pursuant to the terms of this
Agreement), the Offer shall have expired or been terminated and Merger Sub shall not have accepted
for payment and paid for Shares pursuant to the Offer in accordance with the terms thereof or (ii)
Merger Sub fails to purchase validly tendered Shares if required to do so pursuant
56
to and in
accordance with the terms of the Offer, in violation of the terms of this Agreement; provided, that
the Company shall not have the right to terminate this Agreement pursuant to clauses (i) or (ii) of
this Section 7.4(a) if any of the events or circumstances referred to in such clauses (i)
or (ii) of this Section 7.4(a) directly or indirectly resulted from material breach by the
Company of this Agreement such that the conditions set forth in either Paragraph 1(e) or
Paragraph 1(f) of Annex A to this Agreement would not be satisfied;
(b) a breach of any representation, warranty, covenant or agreement on the part of Parent or
Merger Sub set forth in this Agreement shall have occurred which would prevent Parent or Merger Sub
from consummating the transactions contemplated by this Agreement, and such breach is incapable of
being cured by the Outside Date; provided, however, that the Company is not then in
material breach of this Agreement such that the conditions set forth in either Paragraph
1(e) or Paragraph 1(f) of Annex A to this Agreement would not be satisfied; or
(c) pursuant to and in accordance with Section 5.3(d).
Section 7.5 Effect of Termination. If this Agreement is terminated pursuant to this
Article VII, it will become void and of no further force and effect, with no liability on
the part of any party to this Agreement (or any of their respective former, current, or future
general or limited partners, stockholders, managers, members, directors, officers, Affiliates or
agents), except that the provisions of Section 5.2(c), Section 5.10, the indemnity
and reimbursement provisions of Section 5.12(a), this Section 7.5, Section
7.6 and Article VIII will survive any termination of this Agreement; provided,
however, that except as otherwise provided in Section 7.6, nothing herein shall
relieve any Party from liabilities as a result of any intentional breach of any of its
representations, warranties, covenants or other agreements set forth in this Agreement prior to
such termination. It shall be deemed to be an intentional breach of this Agreement by Merger Sub
if the Company has the right to terminate this Agreement pursuant to Section 7.4(a)(ii).
Section 7.6 Payment of Fees Following Termination.
(a) The Company will pay, or cause to be paid, to an account or accounts designated by Parent,
by wire transfer of immediately available funds, an amount equal to the Company Termination Fee:
(i) if this Agreement is terminated by Parent pursuant to Section 7.3(a)(ii), in which
event payment will be made within two (2) Business Days after such termination;
(ii) if this Agreement is terminated by the Company pursuant to Section 7.4(c), in
which event payment must be made in advance of or concurrent with such termination; or
(iii) if (A) a bona fide Takeover Proposal shall have been made known publicly and not
withdrawn prior to the termination of this Agreement and (B) this Agreement is terminated by Parent
or the Company pursuant to Section 7.2(a) or Section 7.2(b), or by Parent pursuant
to Section 7.3(b), and within twelve (12) months following the date of such termination,
57
the Company or any of its Subsidiaries enters into a definitive agreement providing for the
implementation of such Takeover Proposal or the Company thereafter consummates such Takeover
Proposal, in which event payment will be made on or prior to the date on which the Company enters
into such definitive agreement.
For purposes of this Section 7.6 only, references in the definition of the term “Takeover
Proposal” to the figure “20%” will be deemed to be replaced by “more than 50%.”
(b) In no event shall the Company be required to pay the Company Termination Fee on more than
one occasion.
(c) The Company acknowledges that the agreements contained in this Section 7.6 are an
integral part of the transactions contemplated by this Agreement, that without these agreements
Parent and Merger Sub would not have entered into this Agreement, and that the damages resulting
from termination of this Agreement under circumstances where a Company Termination Fee is payable
are uncertain and incapable of accurate calculation and that the amounts payable pursuant to this
Section 7.6 are reasonable forecasts of the actual damages which may be incurred and
constitute liquidated damages and not a penalty.
(d) If the Company fails to pay as directed in writing by Parent any amounts due to accounts
designated by Parent pursuant to this Section 7.6 within the time periods specified in this
Section 7.6, the Company shall pay the costs and expenses (including reasonable legal fees
and expenses) incurred by Parent and/or Merger Sub in connection with any action, including the
filing of any lawsuit, taken to collect payment of such amounts, together with interest on such
unpaid amounts at the prime lending rate prevailing during such period as published in The Wall
Street Journal, calculated on a daily basis from the date such amounts were required to be paid
until the date of actual payment.
(e) Each of Parent and Merger Sub hereby agrees, that upon any termination of this Agreement
under circumstances where it is entitled to a termination fee pursuant to this Section 7.6
and provided such termination fee is paid in full, Parent, Merger Sub and their Affiliates shall be
precluded from any other remedy against the Company or its Affiliates or Representatives, at Law or
in equity or otherwise, and neither Parent, Merger Sub nor any of their Affiliates may seek (and
Parent shall cause such Persons not to seek) to obtain any recovery, judgment, or damages of any
kind, including consequential, indirect, or punitive damages, against the Company or its
Representatives, Affiliates, directors, officers, employees, partners, managers, members, or
stockholders in connection with this Agreement or the transactions contemplated hereby.
Section 7.7 Amendment. This Agreement may be amended by the parties to this Agreement
at any time prior to the Effective Time, whether before or after stockholder approval hereof;
provided, however, that (a) no amendment that requires further stockholder approval
under applicable Laws after stockholder approval hereof will be made without such required further
approval and (b) such amendment has been duly authorized or approved by each of Parent and the
Company. This Agreement may not be amended except by an instrument in writing signed by each of the
parties to this Agreement.
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Section 7.8 Extension; Waiver. At any time prior to the Effective Time, Parent (for
itself and Merger Sub), on the one hand, and the Company, on the other hand, may (a) extend the
time for the performance of any of the obligations of the other party, (b) waive any inaccuracies
in the representations and warranties of the other party contained in this Agreement or in any
document delivered under this Agreement, or (c) unless prohibited by applicable Laws, waive
compliance with any of the covenants or conditions contained in this Agreement. Any agreement on
the part of a party to any extension or waiver will be valid only if set forth in an instrument in
writing signed by such
party. The failure of any party to assert any of its rights under this Agreement or otherwise
will not constitute a waiver of such rights.
ARTICLE VIII
MISCELLANEOUS
MISCELLANEOUS
Section 8.1 Survival. None of the representations, warranties and covenants to be
performed prior to the Purchase Time contained in this Agreement or in any instrument delivered
under this Agreement will survive the Purchase Time; provided, however, that this
Section 8.1 does not limit any covenant of the parties to this Agreement, which, by its
terms, contemplates performance after the Purchase Time. Without limiting the preceding sentence,
the covenants and agreements of the parties contained in Section 7.5 (and the Sections
referred to therein) and Section 7.6 and Article VIII of this Agreement shall
survive termination of this Agreement in accordance with their terms. The Confidentiality Agreement
will (a) survive termination of this Agreement in accordance with its terms and (b) the
Confidentiality Agreement shall terminate as of the Effective Time.
Section 8.2 Governing Law. This Agreement will be governed by, and construed in
accordance with, the Laws of the State of Delaware, without giving effect to any applicable
principles of conflict of laws that would cause the Laws of another State to otherwise govern this
Agreement.
Section 8.3 Submission to Jurisdiction. Each of the parties hereto irrevocably agrees
that any legal action or proceeding with respect to this Agreement and the rights and obligations
arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement
and the rights and obligations arising hereunder brought by the other party hereto or its
successors or assigns shall be brought and determined exclusively in any state or federal court in
the State of Delaware. Each of the parties hereto hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect of its property, generally and unconditionally,
to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this Agreement in any court
or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives,
and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action
or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or
for recognition and enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder (a) any claim that it is not personally subject to the jurisdiction
of the above named courts for any reason other than the failure to serve process in accordance with
this Section 8.3, (b) any claim that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid
59
of execution of judgment,
execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable Law,
any claim that (A) the suit, action or proceeding in such court is brought in an inconvenient
forum, (B) the venue of such suit, action
or proceeding is improper, or (C) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
Section 8.4 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL
ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.4.
Section 8.5 Notices. Any notice, request, instruction or other communication under
this Agreement will be in writing and delivered by hand or overnight courier service or by
facsimile:
If to Parent or Merger Sub, to:
|
If to the Company, to: | |||
AMICAS, Inc.
|
Emageon Inc. | |||
00 Xxxxx Xxxxxx, Xxxxx 000
|
0000 Xxxxxxxxx Xxxxx | |||
Xxxxxx, XX 00000
|
Suite 200 | |||
Facsimile No.: (000) 000-0000
|
Xxxxxxxxxx, Xxxxxxx 00000 | |||
Attn: President and Chief Executive
|
Facsimile No.: (000) 000-0000 | |||
Officer and Chief Financial Officer |
Attn: Chief Financial Officer | |||
With a copy to (which will not
constitute notice to Parent or Merger Sub):
|
With a copy to (which will not constitute notice to the Company): |
|||
Mintz, Levin, Cohn, Ferris, Glovsky and
|
Bass, Xxxxx & Xxxx PLC | |||
Popeo, P.C.
|
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 | |||
Xxx Xxxxxxxxx Xxxxxx
|
Xxxxxxxxx, XX 00000 | |||
Xxxxxx, XX 00000
|
Facsimile No.: (000) 000-0000 | |||
Facsimile No.: (000) 000-0000
|
Attn: Xxxxxx X. Xxxxx III | |||
Attn: Xxxx X. Xxxxxxxxx
|
Xxxxxx X. XxXxxxx |
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and | ||||
Sirote & Permutt, PC | ||||
0000 Xxxxxxxx Xxxxxx Xxxxx | ||||
Xxxxxxxxxx, XX 00000 | ||||
Facsimile No.: (000) 000-0000 | ||||
Attn: W. Xxxx Xxxxxxxx |
or to such other Persons, addresses or facsimile numbers as may be designated in writing by the
Person entitled to receive such communication as provided above. Each such communication will be
effective (a) if delivered by hand or overnight courier, when such delivery is made at the address
specified in this Section 8.5, or (b) if delivered by facsimile, when such facsimile is
transmitted to the facsimile number specified in this Section 8.5 and appropriate
confirmation is received.
Section 8.6 Entire Agreement. This Agreement (including the Exhibits to this
Agreement), the Company Disclosure Letter, the Acquiror Disclosure Letter, the Tender Agreements
and the Confidentiality Agreement constitute the entire agreement and supersede all other prior
agreements, understandings, representations and warranties, both written and oral, among the
parties to this Agreement with respect to the subject matter of this Agreement. No representation,
warranty, inducement, promise, understanding or condition not set forth in this Agreement has been
made or relied upon by any of the parties to this Agreement.
Section 8.7 No Third Party Beneficiaries. This Agreement is not intended to confer
upon any person, other than the parties hereto and their successors and permitted assigns, any
rights or remedies hereunder, except that the parties hereto agree and acknowledge that the
agreements and covenants contained in Section 5.7 are intended for the direct and
irrevocable benefit of the Indemnified Parties described therein and their respective heirs and
legal representatives (each such Indemnified Party, a “Third Party Beneficiary”), and that
each such Third Party Beneficiary, although not a party to this Agreement, shall be and is a direct
and irrevocable third party beneficiary of such agreements and covenants and shall have the right
to enforce such agreements and covenants against the Surviving Corporation in all respects fully
and to the same extent as if such Third Party Beneficiary were a party hereto. Notwithstanding the
foregoing or anything to the contrary in this Agreement, Parent acknowledges and agrees that in the
event of any breach, or wrongful repudiation or termination, of this Agreement by Parent and/or
Merger Sub, the actual or potential damages incurred by the Company for purposes of determining any
remedy at Law or equity under this Agreement would include the actual and/or potential damages
incurred by the Company’s stockholders in the event such Persons do not receive the benefit of the
bargain negotiated by the Company on their behalf, subject to the Requisite Stockholder Approval
(if applicable), as set forth in this Agreement; provided, however, that it is agreed that neither
this provision nor any other provision in this Agreement is intended to provide the Company’s
stockholders (or any party acting on their behalf) the ability to directly seek (prior to the
Closing
Date) the enforcement of, or directly seek any remedies pursuant to, this Agreement, or
otherwise create any rights in the Company’s stockholders under this Agreement or otherwise,
including against the Company or its directors, under any theory of Law or equity, including under
the applicable Laws of agency or the Laws relating to the rights
61
and obligations of third party
beneficiaries. For avoidance of doubt as to the parties’ intent, the determination of whether and
how to terminate, amend, make any waiver or consent under or enforce this Agreement, and whether
and how (if applicable) to distribute any damages award to its stockholders, shall exclusively
belong to the Company in its sole discretion.
Section 8.8 Severability. The provisions of this Agreement are severable and the
invalidity or unenforceability of any provision will not affect the validity or enforceability of
the other provisions of this Agreement. If any provision of this Agreement, or the application of
that provision to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision will be substituted for that provision in order to carry out, so far as may be
valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of that provision to other Persons or circumstances
will not be affected by such invalidity or unenforceability, nor will such invalidity or
unenforceability affect the validity or enforceability of that provision, or the application of
that provision, in any other jurisdiction.
Section 8.9 Assignment. This Agreement may not be assigned by any party without the
prior written consent of the other party whether by operation of Law or otherwise. Any purported
assignment not permitted under this Section 8.9 will be null and void ab initio. This
Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and
their successors and assigns.
Section 8.10 Specific Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement, including each party’s failure to
take all actions pursuant hereto as are necessary on its part to consummate the Offer and the
Merger, were not performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that, regardless of the availability of an adequate and available damages
remedy, the parties shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement, including the
requirements that each party take all actions pursuant hereto as are necessary on its part to
consummate the Offer and the Merger, in the Delaware Court of Chancery, this being in addition to
any other remedy to which they may be entitled at law or in equity.
Section 8.11 Time of Essence. With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence.
Section 8.12 Counterparts; Effectiveness. This Agreement may be executed in two or more identical counterparts, all of which shall be
considered one and the same agreement and shall become effective when counterparts have been signed
by each party and delivered to each other party. In the event that any signature to this Agreement
or any amendment hereto is delivered by facsimile transmission or by e-mail delivery of a “pdf’
format data file, such signature shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force and effect as if such facsimile
or “pdf” signature page were an original thereof.
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[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto as of the date first written above.
PARENT: AMICAS, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx, M.D. | |||
Name: | Xxxxxxx X. Xxxxxx, M.D. | |||
Title: | Chief Executive Officer | |||
MERGER SUB: AMICAS ACQUISITION CORP. |
||||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Chief Financial Officer | |||
COMPANY: EMAGEON INC. |
||||
By: | /s/ Xxxxxxx X. Xxxx, Xx. | |||
Name: | Xxxxxxx X. Xxxx, Xx. | |||
Title: | Chief Executive Officer | |||
[Signature Page to Agreement and Plan of Merger]
64
ANNEX A
CONDITIONS TO THE OFFER
Capitalized terms used in this Annex A and not otherwise defined herein shall have the
meanings assigned to them in the Agreement to which it is attached (the “Merger
Agreement”).
1. Notwithstanding any other provision of the Offer or the Merger Agreement, Merger Sub shall
not be required to accept for payment or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-l(c) under the Exchange Act (relating to Merger Sub’s obligation to pay for
or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for
any Shares tendered in connection with the Offer unless, immediately prior to the expiration of the
offering period for the Offer, as the same may be extended from time to time (the “Expiration
Date”):
(a) there shall have been validly tendered (not including any Shares tendered pursuant to
procedures for guaranteed delivery) in the Offer and not properly withdrawn that number of Shares
which, together with the number of Shares, if any, then owned beneficially by Parent, Merger Sub or
their Subsidiaries, constitutes at least a majority of the total number of then-outstanding Shares
on a fully diluted basis (which shall mean, as of any time, the number of Shares outstanding,
together with all Shares (if any) which the Company would be required to issue pursuant to any then
outstanding warrants, options, benefit plans or obligations or securities convertible or
exchangeable into Shares or otherwise, but only to the extent then so exercisable, convertible or
exchangeable) (the “Minimum Tender Condition”);
(b) the applicable waiting period under the HSR Act in respect of the transactions
contemplated by the Merger Agreement shall have expired or been terminated, and any required
approvals or consents in respect of the transactions contemplated by the Merger Agreement shall
have been obtained under any applicable Foreign Antitrust Laws (and any applicable waiting periods
thereunder have expired or been terminated).
(c) No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any
Law or Order (whether temporary, preliminary or permanent) which is then in effect that has the
effect of (i) making the Merger illegal or otherwise preventing or prohibiting the consummation of
the Merger, (ii) imposing material limitations on the ability of Parent, Merger Sub or any of their
respective Subsidiaries or Affiliates to acquire or hold, transfer or dispose of, or effectively to
exercise all rights of ownership of, some or all of the Shares including the right to vote the
Shares purchased by it pursuant to the Offer on an equal basis with all other Shares on all matters
properly presented to the stockholders of the Company. There shall not be pending or threatened in
writing (and any such written threat shall have been withdrawn), any material action or proceeding
by any Governmental Entity challenging the making or consummation of the Offer or the Merger or
seeking, directly or indirectly, to result in any of the consequences referred to in clauses (i) or
(ii) above;
(d) no Company Material Adverse Effect shall have occurred since the date of the Merger
Agreement;
(e) the Company shall not have breached in any material respect any material covenant of the
Company contained in the Merger Agreement unless the breach shall have been cured in all material
respects;
(f) (1) The representations and warranties of the Company set forth in Article 3 of
the Merger Agreement (i) subject to any qualification as to “materiality,” “Company Material
Adverse Effect” or words of similar meaning set forth therein shall be true and correct, and (ii)
not subject to any such qualification shall be true and correct in all material respects, in each
case as of the date of the expiration of the Offer, as if made at and as of such date (except to
the extent expressly made as of an earlier date, in which case as of such date); or
65
(g) the Merger Agreement shall have been terminated pursuant to its terms;
which, in the sole judgment of Parent or Merger Sub, in any case, makes it inadvisable to proceed
with the Offer or with acceptance for payment or payment for Shares.
Immediately prior to the expiration of the Offer, the Company shall deliver to Parent a
certificate executed on behalf of the Company by the Chief Executive Officer and Chief Financial
Officer of the Company certifying that the conditions and events set forth in Paragraphs 1(e) and
1(f) of this Annex A shall not exist or have not occurred as of such time and date.
The conditions set forth in this Annex A are for the benefit of Parent and Merger Sub and,
regardless of the circumstances, may be asserted by Parent or Merger Sub in whole or in part at any
applicable time or from time to time prior to the Expiration Date, and any condition may be waived
by Parent or Merger Sub in its discretion in whole or in part at any applicable time or from time
to time, in each case subject to the terms and conditions of the Merger Agreement and the
applicable rules and regulations of the SEC. The failure of Parent or Merger Sub at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right that may be asserted at any time and from time to time. The
foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent and
Merger Sub to extend, terminate, amend and/or modify the Offer pursuant to the terms and conditions
of the Merger Agreement.
66