AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 27, 2006
BY AND AMONG
ARMOR HOLDINGS, INC.,
XXXXXXX ACQUISITION CORP.
AND
XXXXXXX & XXXXXXXXX SERVICES, INC.
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS; INTERPRETATION...................................... 1
1.01 Definitions...................................................... 1
1.02 Interpretation................................................... 6
ARTICLE II THE MERGER....................................................... 7
2.01 The Merger....................................................... 7
2.02 Closing.......................................................... 7
2.03 Effective Time................................................... 8
2.04 Effects of the Merger............................................ 8
2.05 Articles of Incorporation and By-laws............................ 8
2.06 Directors and Officers........................................... 8
ARTICLE III CONSIDERATION; EXCHANGE PROCEDURES............................... 8
3.01 Conversion or Cancellation of Shares............................. 8
3.02 Exchange of Certificates; Payment of the Merger Consideration.... 9
3.03 Stock Options.................................................... 10
3.04 Dissenting Shareholders.......................................... 11
ARTICLE IV CONDUCT OF BUSINESS PENDING THE MERGER........................... 11
4.01 Agreements of the Company........................................ 11
4.02 Agreements of Parent............................................. 14
ARTICLE V REPRESENTATIONS AND WARRANTIES................................... 14
5.01 Disclosure Schedules............................................. 14
5.02 Standard for Breach of Representations and Warranties............ 14
5.03 Representations and Warranties................................... 15
5.04 Representations and Warranties about Merger Sub.................. 23
ARTICLE VI COVENANTS........................................................ 24
6.01 Reasonable Best Efforts.......................................... 24
6.02 Shareholder Approvals............................................ 24
6.03 Filings.......................................................... 25
6.04 Press Releases................................................... 25
6.05 Access; Information.............................................. 26
6.06 No Solicitation.................................................. 26
6.07 Takeover Laws and Provisions..................................... 28
6.08 Regulatory Applications.......................................... 28
6.09 Indemnification.................................................. 29
6.10 Employee Matters................................................. 30
6.11 Notification of Certain Matters.................................. 32
6.12 Parent Financing................................................. 32
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TABLE OF CONTENTS
(continued)
PAGE
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ARTICLE VII CONDITIONS TO THE MERGER......................................... 33
7.01 Conditions to Each Party's Obligation to Effect the Merger....... 33
7.02 Conditions to the Company's Obligation........................... 33
7.03 Conditions to Parent's Obligation................................ 33
ARTICLE VIII TERMINATION...................................................... 34
8.01 Termination...................................................... 34
8.02 Effect of Termination............................................ 35
8.03 Expenses......................................................... 35
ARTICLE IX MISCELLANEOUS.................................................... 36
9.01 Survival......................................................... 36
9.02 Waiver; Amendment................................................ 36
9.03 Counterparts..................................................... 36
9.04 Governing Law; Jurisdiction; Venue............................... 37
9.05 Notices.......................................................... 37
9.06 Entire Understanding; No Third Party Beneficiaries............... 38
9.07 Severability..................................................... 38
9.08 Assignment; Successors........................................... 38
Schedules
Schedule 2.06 Officers of the Surviving Corporation
Schedule 6.01 Contract Consents
Company's Disclosure Schedule
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
February 27, 2006, is by and among Armor Holdings, Inc., a Delaware corporation
("Parent"), Xxxxxxx Acquisition Corp., a Texas corporation ("Merger Sub"), and
Xxxxxxx & Xxxxxxxxx Services, Inc., a Texas corporation (the "Company").
RECITALS
A. The Proposed Transaction. The parties intend to effect a strategic
business combination through the merger of Merger Sub with and into the Company
(the "Merger"), with the Company being the surviving corporation (the "Surviving
Corporation").
B. Board Determinations. The respective boards of directors of Parent,
Merger Sub and the Company have each determined that the Merger and the other
transactions contemplated hereby are in the best interests of their respective
stockholders or shareholders, as the case may be, and, therefore, have approved
the Merger and this Agreement and the plan of merger contained in this Agreement
(the "Plan of Merger"), and the respective boards of directors of Merger Sub and
the Company have each recommended that this Agreement and the Merger be approved
by the respective shareholders of Merger Sub and the Company.
NOW, THEREFORE, in consideration of the premises, and of the mutual
representations, warranties, covenants and agreements contained in this
Agreement, Parent, Merger Sub and the Company agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
1.01 Definitions. This Agreement uses the following definitions:
"Acquisition Proposal" means any proposal or offer (whether or not in
writing) with respect to (a) any purchase of an equity interest (including by
means of a tender or exchange offer) representing more than 15% of the voting
power in the Company or any of its Subsidiaries, (b) a merger, consolidation,
other business combination, reorganization, recapitalization, dissolution,
liquidation or similar transaction involving the Company or any of its
Subsidiaries or (c) any purchase of assets, businesses, securities or ownership
interests (including the securities of any Subsidiary of the Company)
representing more than 15% of the consolidated assets of the Company and its
Subsidiaries, other than the Transactions.
"Agreement" has the meaning assigned in the Preamble to this Agreement.
"Articles of Merger" has the meaning assigned in Section 2.03.
"Benefit Arrangement" means, with respect to the Company, each of the
following (a) under which any Employee or any of its current or former directors
has any present or future right to benefits, (b) that is sponsored or maintained
by it or its Subsidiaries, or (c) under which it or its Subsidiaries has had or
has any present or future liability: each "employee benefit plan"
(within the meaning of Section 3(3) of ERISA) and each stock purchase, stock
option, equity-based grants, severance, employment, change-in-control, fringe
benefit, bonus, incentive, deferred compensation, paid time off benefits and
other employee benefit plan, agreement, program, policy or other arrangement
(with respect to any of the preceding, whether or not subject to ERISA).
"Benefits Transition Date" has the meaning assigned in Section 6.10(a).
"Business Day" means any day other than a day on which banks in the State
of Texas are required or authorized to be closed.
"Certificate" has the meaning assigned in Section 3.01(a).
"Certificate of Merger" has the meaning assigned in Section 2.03.
"Closing" has the meaning assigned in Section 2.02.
"Closing Date" has the meaning assigned in Section 2.02.
"Code" has the meaning assigned in Section 5.03(m)(2).
"Company" has the meaning assigned in the Preamble to this Agreement.
"Company Board" means the Board of Directors of the Company.
"Company Board Recommendation" has the meaning assigned in Section
5.03(e).
"Company Board Change of Recommendation" has the meaning assigned in
Section 6.06(b).
"Company Common Stock" means the common stock, without par value, of the
Company.
"Company Representatives" has the meaning assigned in Section 6.06(a).
"Company Shareholder Approval" has the meaning assigned in Section
5.03(e).
"Company Stock Option" has the meaning assigned in Section 3.03.
"Company Stock Plans" has the meaning assigned in Section 3.03.
"Confidentiality Agreement" means that certain Confidentiality Agreement
dated as of December 7, 2005 between Parent and the Company.
"Constituent Documents" means the charter or articles or certificate of
incorporation and by-laws of a corporation, the certificate of partnership and
partnership agreement of a general or limited partnership, the certificate of
formation and limited liability company agreement of a limited liability
company, the trust agreement of a trust and the comparable documents of other
entities.
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"Covered Employees" has the meaning assigned in Section 6.10(a).
"Defense Businesses" has the meaning assigned in the definition of
"Material Adverse Effect" in this Section 1.01.
"Disbursing Agent" has the meaning assigned in Section 3.02(a).
"Disclosure Schedule" has the meaning assigned in Section 5.01.
"Dissenting Shareholder" has the meaning assigned in Section 3.04(a).
"Dissenting Shares" means shares of Company Common Stock the holders of
which have perfected and not withdrawn or lost their right to dissent with
respect to such shares under Articles 5.11, 5.12, and 5.13 and of the TBCA, as
applicable.
"Effective Time" has the meaning assigned in Section 2.03.
"Eligible Option" has the meaning assigned in Section 3.03.
"Employees" means current and former employees of the Company and its
Subsidiaries.
"Environmental Laws" means the statutes, rules, regulations, ordinances,
codes, orders, decrees, and any other laws (including common law) of any
foreign, federal, state, local and any other governmental authority, regulating,
relating to or imposing liability or standards of conduct concerning pollution
or protection of human health and safety or of the environment, in every case as
in effect on or prior to the date of this Agreement.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" has the meaning assigned in Section 5.03(m)(3).
"Exception Shares" means, collectively, shares of Company Common Stock
owned or held by the Company, Parent or Merger Sub and/or any of their
respective Subsidiaries.
"Exchange Act" means the U.S. Securities Exchange Act of 1934 and the
rules and regulations thereunder.
"Existing Confidentiality Agreements" has the meaning assigned in Section
5.03(w).
"Financing" has the meaning assigned in Section 6.12.
"GAAP" means generally accepted accounting principles in the United
States.
"Governmental Authority" means any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign.
"HSR Act" means the U.S. Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976 and the rules and regulations thereunder.
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"Indemnified Party" has the meaning assigned in Section 6.09(b).
"Information Memorandum" has the meaning assigned in Section 5.03(s)(3).
"Knowledge" and "knowingly" means or has reference to, respectively, the
actual knowledge of the executive officers of the Company or Parent, as the case
may be, after due inquiry consistent with their respective responsibilities as
an executive officer.
"Lien" means any charge, mortgage, pledge, security interest, restriction,
claim, lien, or encumbrance other than, with respect to the Company or its
Subsidiaries, (a) any such charge, mortgage, pledge, security interest,
restriction, claim, lien or encumbrance disclosed in the consolidated financial
statements of the Company and its Subsidiaries or the notes thereto or securing
liabilities reflected on such financial statements or incurred in the ordinary
course of business since the date of the most recent consolidated financial
statements, (b) any such charge, mortgage, pledge, security interest,
restriction, claim, lien or encumbrance for Taxes not yet delinquent or that are
being contested in good faith and reserved for in accordance with GAAP, or (c)
any such charge, mortgage, pledge, security interest, restriction, claim, lien
or encumbrance which is a carrier's, warehousemen's, mechanic's, materialmen's,
repairmen's or other similar lien arising in the ordinary course of business.
"Management Presentation" has the meaning assigned in Section 5.03(s)(3).
"Material Adverse Effect" or "Material Adverse Change" means
(a) with respect to the Company, any effect, change or development that
individually, or together with other effects, changes or developments, is (or
would be) material and adverse to (i) the financial condition, results of
operations, assets, liabilities or business of the Company and its Subsidiaries,
taken as a whole or (ii) the ability of the Company to consummate the
Transactions, excluding in each case the impact of (1) changes in laws of
general applicability or changes in laws of specific applicability to businesses
engaged in contracting with Governmental Authorities as to the supply of
products and services for use in, or related to, military activities ("Defense
Businesses") and not disproportionally and materially impacting the Company, or
changes in the interpretation thereof by Governmental Authorities, (2) changes
in general economic, financial market or political conditions or changes in
economic conditions affecting Defense Businesses (including any outbreak or
escalation of hostilities or war or any act of terrorism), or (3) changes
resulting from the announcement or the existence of, or compliance with, this
Agreement and the Transactions; and
(b) with respect to Parent or Merger Sub, any effect that would
materially impair the ability of Parent or Merger Sub to perform its obligations
under this Agreement or to consummate the Transactions by the Termination Date.
"Material Contract" has the meaning assigned in Section 5.03(k)(1).
"Materials of Environmental Concern" means any hazardous or toxic
substances, materials, wastes, pollutants, or contaminants, including without
limitation those defined or regulated as such under any Environmental Law, and
any other substance the presence of which may give rise to liability under any
Environmental Law.
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"Merger" has the meaning assigned in the Recitals.
"Merger Sub" has the meaning assigned in the Preamble to this Agreement.
"Merger Sub By-laws" means the by-laws of Merger Sub.
"Merger Sub Common Stock" means the common stock, $0.001 par value per
share, of Merger Sub.
"Parent" has the meaning assigned in the Preamble to this Agreement.
"Parent Board" means the Board of Directors of Parent.
"party" means Parent, Merger Sub or the Company.
"Pension Plan" has the meaning assigned in Section 5.03(m)(2).
"Per Share Consideration" has the meaning assigned in Section 3.01(a).
"person" is to be interpreted broadly to include any individual,
corporation, limited liability company, partnership, association, joint-stock
company, business trust or unincorporated organization.
"Plan of Merger" has the meaning assigned in the Recitals.
"Previously Disclosed" means information set forth by the Company in the
applicable paragraph of the Disclosure Schedule, or any other paragraph of the
Disclosure Schedule (so long as it is reasonably clear from the context that the
disclosure in such other paragraph of the Disclosure Schedule is also applicable
to the Section or subsection of this Agreement in question) or in the Company's
Regulatory Filings (including any schedules and exhibits thereto).
"Proxy Statement" has the meaning assigned in Section 5.03(t).
"Regulatory Filings" has the meaning assigned in Section 5.03(g)(1).
"Representatives" means, with respect to any person, such person's
directors, officers, employees, legal or financial advisors or any
representatives of such legal or financial advisors.
"Requisite Approvals" has the meaning assigned in Section 6.08(a).
"Rights" means, with respect to any person, securities or obligations
convertible into or exercisable or exchangeable for, or giving any other person
any right to subscribe for or acquire, or any options, calls or commitments
relating to, or any stock appreciation right or other instrument the value of
which is determined in whole or in part by reference to the market price or
value of, shares of capital stock of such first person.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations thereunder.
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"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933 and the rules and
regulations promulgated thereunder.
"Shareholders' Meeting" has the meaning assigned in Section 6.02.
"Subsidiary" has the meaning ascribed to such term in Rule 1-02 of
Regulation S-X promulgated by the SEC.
"Superior Proposal" means an Acquisition Proposal made by any person on
terms that the Company Board determines in good faith, after the receipt of
advice from the Company's financial and legal advisors, and considering such
factors as the Company Board considers to be appropriate (including the
conditionality and the timing and likelihood of success of such proposal), are
more favorable to the Company and its shareholders than the Transactions
(including any changes to the terms of this Agreement proposed by Parent in
response to such offer or otherwise pursuant to Section 6.06(b)).
"Surviving Corporation" has the meaning assigned in the Recitals.
"Takeover Laws" has the meaning assigned in Section 5.03(n).
"Takeover Provisions" has the meaning assigned in Section 5.03(n).
"Tax" and "Taxes" means all federal, state, local or foreign taxes,
charges, fees, levies or other assessments, however denominated, including,
without limitation, all net income, gross income, gains, gross receipts, sales,
use, ad valorem, goods and services, capital, production, transfer, franchise,
windfall profits, license, withholding, payroll, employment, disability,
employer health, excise, estimated, severance, stamp, occupation, property,
environmental, unemployment or other taxes, custom duties, fees, assessments or
charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any taxing authority.
"Tax Returns" means any return, amended return or other report (including
elections, declarations, disclosures, schedules, estimates and information
returns) required to be filed with respect to any Tax.
"TBCA" means the Texas Business Corporation Act.
"TBOC" means the Texas Business Organizations Code.
"Termination Date" has the meaning assigned in Section 8.01(d).
"Texas Courts" has the meaning assigned in Section 9.04.
"Transactions" has the meaning assigned in Section 5.03(e).
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1.02 Interpretation.
(a) In this Agreement, except as the context may otherwise
require, references:
(1) to the Preamble, Recitals, Sections, Annexes or
Schedules are to the Preamble to, a Recital or Section of, or Annex
or Schedule to, this Agreement;
(2) to this Agreement are to this Agreement and the Annexes
and Schedules to it taken as a whole;
(3) to any agreement (including this Agreement), contract,
statute or regulation are to the agreement, contract, statute or
regulation as amended, modified, supplemented, restated or replaced
from time to time (in the case of an agreement or contract, to the
extent permitted by the terms thereof);
(4) to any section of any statute or regulation include any
successor to the section;
(5) to any Governmental Authority include any successor to
that Governmental Authority; and
(6) to the date of this Agreement are to February 27, 2006.
(b) The table of contents and Article and Section headings are for
reference purposes only and do not limit or otherwise affect any of the
substance of this Agreement.
(c) The words "include," "includes" or "including" are to be
deemed followed by the words "without limitation".
(d) The words "herein", "hereof" or "hereunder", and similar terms
are to be deemed to refer to this Agreement as a whole and not to any
specific Section.
(e) This Agreement is the product of negotiation by the parties,
which have had the assistance of counsel and other advisers. The parties
intend that this Agreement not be construed more strictly with regard to
one party than with regard to another.
(f) No provision of this Agreement is to be construed to require,
directly or indirectly, any person to take any action, or omit to take any
action, to the extent such action or omission would violate applicable law
(including statutory and common law), rule or regulation.
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ARTICLE II
THE MERGER
2.01 The Merger. Upon the terms and subject to the conditions set forth
in this Agreement and in accordance with the provisions of the TBCA and the
TBOC, Merger Sub will merge with and into the Company at the Effective Time. At
the Effective Time the separate corporate existence of Merger Sub will
terminate. The Company will be the Surviving Corporation and will continue its
corporate existence under the laws of the State of Texas.
2.02 Closing. The closing of the Merger (the "Closing") will take place
in the offices of Fulbright & Xxxxxxxx L.L.P., 0000 XxXxxxxx Xx., Xxxxx 0000,
Xxxxxxx, Xxxxx, at 10:00 a.m. as promptly as practicable (but in any event
within two Business Days) after satisfaction or waiver of the conditions set
forth in Article VII, other than those conditions that by their nature are to be
satisfied at the Closing but subject to the fulfillment or waiver of those
conditions (the "Closing Date").
2.03 Effective Time. Subject to the provisions of this Agreement, at the
Closing the Company and Merger Sub will duly execute and file articles of merger
or a certificate of merger, as applicable (collectively, the "Articles of
Merger") with the Secretary of State of the State of Texas for filing under
Article 5.04 of the TBCA or Section 10.153 of the TBOC as required. The parties
will make all other filings or recordings required under the TBCA or the TBOC,
and the Merger will become effective when the Articles of Merger are filed in
the office of the Secretary of State of the State of Texas and a certificate of
merger (the "Certificate of Merger") is issued by the office of the Secretary of
State of the State of Texas pursuant to Article 5.05 of the TBCA, or at such
later date or time as Parent and the Company shall agree and specify in the
Articles of Merger in accordance with Article 10.03 of the TBCA (the time the
Merger becomes effective being the "Effective Time").
2.04 Effects of the Merger. The Merger will have the effects prescribed
by the TBCA, the TBOC and other applicable law.
2.05 Articles of Incorporation and By-laws.
(a) The amended and restated articles of incorporation of the
Company, as in effect immediately before the Effective Time, will be the
articles of incorporation of the Surviving Corporation as of the Effective
Time, except that the name of the Surviving Corporation shall be changed
therein to be the name of the Company immediately prior to the Effective
Time.
(b) The Merger Sub By-laws, as in effect immediately before the
Effective Time, will be the by-laws of the Surviving Corporation as of the
Effective Time except that the Merger Sub By-laws shall, to the extent
that they do not do so, be amended (and be deemed to be so amended) as of
the Effective Time to effectuate the obligations of Parent and the
Surviving Corporation provided in Sections 6.09(a) and 6.09(b).
2.06 Directors and Officers. The directors of Merger Sub immediately
prior to the Effective Time shall be the directors of the Surviving Corporation
as of the Effective Time. The
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officers of the Surviving Corporation as of the Effective Time and their titles,
subject to the right of the board of directors of the Surviving Corporation to
appoint or replace officers, shall be as set forth in Section 2.06 of the
Disclosure Schedule.
ARTICLE III
CONSIDERATION; EXCHANGE PROCEDURES
3.01 Conversion or Cancellation of Shares. At the Effective Time, by
virtue of the Merger and without any action on the part of any shareholder:
(a) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time, other than Exception Shares
(which shares shall be cancelled and shall cease to exist with no payment
being made with respect thereto) and Dissenting Shares (which shares shall
be treated in accordance with Section 3.04) shall be converted into and
constitute the right to receive cash in an amount equal to $35.00, without
interest (the "Per Share Consideration"). At the Effective Time, all
shares of Company Common Stock that have been converted into the right to
receive the Per Share Consideration as provided in this Section 3.01(a)
shall no longer be outstanding and shall be cancelled and shall cease to
exist, and each holder of a certificate that immediately prior to the
Effective Time represented such shares of Company Common Stock (a
"Certificate") shall cease to have any rights with respect thereto, except
the right to receive (i) the Per Share Consideration and (ii) any
dividends with respect to Company Common Stock with a record date prior to
the Effective Time but unpaid as of the Effective Time.
(b) Each issued and outstanding share of Merger Sub Common Stock
shall be converted into one fully paid and nonassessable share of common
stock, without par value, of the Surviving Corporation.
3.02 Exchange of Certificates; Payment of the Merger Consideration.
(a) Appointment of Disbursing Agent. At or prior to the Effective
Time, Parent shall deposit with a disbursing agent agreed upon by Parent
and the Company (the "Disbursing Agent") cash in an amount sufficient to
allow the Disbursing Agent to make all payments that may be required
pursuant to this Article III. Parent shall be obligated to, from time to
time, deposit any additional funds necessary to make all payments that may
be required by this Article III. Such funds shall be invested by the
Disbursing Agent in short term investments in direct obligations of the
United States of America, obligations for which the full faith and credit
of the United States of America is pledged to provide for the payment of
all principal and interest or commercial paper obligations receiving the
highest rating from either Xxxxx'x Investors Service, Inc. or Standard &
Poor's or a combination thereof as directed by Parent; provided that no
such investment or loss thereon shall affect the amounts payable or the
timing of the amounts payable pursuant to this Article III. Any net
profits resulting from, or interest or income produced by, such
investments shall be payable as directed by the Parent. Upon the first
anniversary of the Effective Time, any such cash remaining in the
possession of the
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Disbursing Agent (together with any earnings in respect thereof) shall be
delivered to Parent and any holder of Certificates who has not theretofore
exchanged such Certificates pursuant to this Article III shall thereafter
be entitled to look exclusively to Parent and/or the Surviving
Corporation, and only as a general creditor thereof, for the consideration
to which such holder may be entitled upon exchange of such Certificates
pursuant to this Article III. Notwithstanding the foregoing, neither the
Disbursing Agent nor any party hereto shall be liable to any holder of
Certificates for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(b) Exchange Procedures. Promptly after the Effective Time, but in
no event later than two Business Days thereafter, Parent shall cause the
Disbursing Agent to mail or deliver to each person who was, immediately
prior to the Effective Time, a holder of record of Company Common Stock, a
form of letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to Certificates shall pass, only upon
proper delivery of such certificates to the Disbursing Agent) containing
instructions for use in effecting the surrender of Certificates in
exchange for the consideration to which such person is entitled pursuant
to this Article III. Upon surrender to the Disbursing Agent of a
Certificate for cancellation together with such letter of transmittal,
duly executed and completed in accordance with the instructions thereto,
the holder of such Certificate shall promptly be provided in exchange
therefor cash in the amount to which such holder is entitled pursuant to
this Article III, and the Certificate so surrendered shall forthwith be
canceled. No interest will accrue or be paid with respect to any
consideration to be delivered upon surrender of Certificates.
(c) Transfer to Holder other than Existing Holder. If any cash
payment is to be made in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it shall be a condition of
such payment that the person requesting such payment shall pay any
transfer or other similar Taxes required by reason of the making of such
payment in a name other than that of the registered holder of the
Certificate surrendered, or required for any other reason relating to such
holder or requesting person, or shall establish to the reasonable
satisfaction of the Disbursing Agent that such Tax has been paid or is not
payable.
(d) Transfers. At or after the Effective Time, there shall be no
transfers registered on the stock transfer books of the Surviving
Corporation of Company Common Stock or Certificates that were outstanding
immediately prior to the Effective Time.
(e) Lost, Stolen or Destroyed Certificates. If any Certificate
shall have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming such Certificate to be lost, stolen or
destroyed and, if required by the Surviving Corporation or the Disbursing
Agent, the posting by such person of a bond in such reasonable amount as
the Surviving Corporation or the Disbursing Agent may direct as indemnity
against any claim that may be made against it with respect to such
Certificate, the Surviving Corporation or the Disbursing Agent shall, in
exchange for such lost, stolen or destroyed Certificate, pay or cause to
be paid the consideration deliverable in respect of Company Common Stock
formerly represented by such Certificate pursuant to this Article III.
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3.03 Stock Options. The Company shall (a) terminate the Company's
Non-statutory Stock Option Plan (as amended and restated effective as of June
10, 1997, and as subsequently amended), Amended and Restated 1993 Non-officer
Employee Stock Option Plan, 1994 Director Stock Option Plan, and Amended and
Restated 1996 Director Stock Plan (as amended by Amendment No. 1 effective as of
July 9, 2004) (collectively, the "Company Stock Plans"), immediately prior to
the Effective Time without prejudice to the rights of the holders of options
(each, a "Company Stock Option") awarded pursuant thereto, (b) following such
termination grant no additional options under the Company Stock Plans or permit
the receipt of shares of Company Common Stock, and (c) cause each Company Stock
Option that is outstanding immediately prior to the consummation of the Merger
to become fully vested and exercisable. Prior to the Effective Time, the Company
and Parent will take all actions reasonably necessary to provide that, upon the
Effective Time, each outstanding Company Stock Option shall be cancelled
automatically and at the Effective Time shall be converted into and constitute
the right to receive cash in an amount equal (less any applicable withholding
and without interest) to the product of (1) the total number of shares of
Company Common Stock subject to such holder's Company Stock Option or Options
immediately prior to the Effective Time and (2) the excess, if any, of the Per
Share Consideration over the exercise price per share of Company Common Stock
subject to such Company Stock Option or Options (each, an "Eligible Option"). No
payment of the Per Share Consideration with respect to an Eligible Option shall
be made by the Disbursing Agent to the holder of such Eligible Option until
receipt by the Disbursing Agent of an option cancellation agreement, in a form
mutually and reasonably acceptable to the Company and Parent, with respect to
all Eligible Options owned by the holder of such Eligible Option.
3.04 Dissenting Shareholders.
(a) Each Dissenting Share shall not be converted into or represent
a right to receive the Per Share Consideration hereunder, and the holder
thereof shall be entitled only to such rights as are granted by Articles
5.11, 5.12, and 5.13 of the TBCA, as applicable. The Company shall give
Parent notice as promptly as reasonably practicable upon receipt by the
Company of any demand for payment pursuant to Article 5.12 of the TBCA, as
applicable, and of withdrawals of such notice (any shareholder duly making
such demand being hereinafter called a "Dissenting Shareholder"), and
Parent shall have the right to participate in and direct all negotiations
and proceedings with respect to any such demands. The Company shall not,
without the prior written consent (which consent may not be unreasonably
withheld or delayed) of Parent, make any payment with respect to, settle,
offer to settle or otherwise negotiate, any such demands. Any payments
made in respect of Dissenting Shares shall be made by Parent and/or the
Surviving Corporation.
(b) If any Dissenting Shareholder shall have withdrawn or lost
(through failure to perfect or otherwise) his or her right to dissent
under Articles 5.11, 5.12, and 5.13 of the TBCA, as applicable, each of
such holder's shares of Company Common Stock shall be converted solely
into a right to receive the Per Share Consideration, without interest, in
accordance with the applicable provisions of this Agreement.
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ARTICLE IV
CONDUCT OF BUSINESS PENDING THE MERGER
4.01 Agreements of the Company. The Company agrees that from the date of
this Agreement until the Effective Time, except as expressly contemplated by
this Agreement or as Previously Disclosed, without the prior written consent of
Parent (which consent will not be unreasonably withheld or delayed), it will
not, and will cause each of its Subsidiaries not to:
(a) Ordinary Course. Conduct its business and the business of its
Subsidiaries other than in the ordinary and usual course consistent with
past practices in all material respects and in compliance in all material
respects with applicable laws, or fail to use commercially reasonable
efforts to (i) preserve intact, in all material respects, their business
organizations and goodwill, (ii) keep available the services of its
officers and employees, and (iii) maintain satisfactory relationships with
those persons having material and advantageous business relationships with
the Company or its Subsidiaries.
(b) Operations. Enter into any new line of business or change its
operating policies in any material respect except as required by
applicable law, regulation or policies imposed by any Governmental
Authority; provided, however, that the Company will not be deemed to be
engaged in a new line of business to the extent it prosecutes its efforts
to sell trucks, trailers and related kinds of products and services
reasonably related to its current line of business. The Company will not
pursue or take any new business related to its Distributed Energy
Solutions operations, except to the extent reasonably necessary to fulfill
its existing contractual obligations.
(c) Capital Stock and Other Securities. Other than pursuant to
Rights Previously Disclosed and outstanding on the date of this Agreement,
(1) issue, sell or otherwise permit to become outstanding or dispose of or
encumber or pledge, or authorize or propose the creation of, any
additional shares of its stock or any other securities (including
long-term debt) or any Rights with respect to its stock or any other
securities, or (2) permit any additional shares of its stock to become
subject to new grants under Company Stock Plans or otherwise.
(d) Dividends, Distributions, Repurchases. (1) Make, declare, pay
or set aside for payment any dividend on or in respect of, or declare or
make any distribution on any shares of its stock, other than (A) dividends
from its wholly owned Subsidiaries to it or another of its wholly owned
Subsidiaries consistent with past practice or (B) regular quarterly
dividends on Company Common Stock in an amount not exceeding $.085 per
share and consistent with past practices with respect to the timing of the
payment of such dividends, or (2) directly or indirectly adjust, split,
combine, redeem or reclassify, or purchase or otherwise acquire any shares
of its stock.
(e) Dispositions. Sell, transfer, mortgage, encumber or otherwise
dispose of any of its assets, business or properties, except for sales,
transfers, mortgages, encumbrances or other dispositions of inventories or
de minimis obsolete assets or properties in the ordinary course of
business.
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(f) Acquisitions. Acquire all or any portion of the assets,
business, properties or shares of stock or other securities of any other
person other than the purchase of assets and properties in the ordinary
course of business.
(g) Constituent Documents. Amend its Constituent Documents.
(h) Accounting Methods. Implement or adopt any change in its
financial accounting principles, practices or methods, other than as may
be required by GAAP or regulatory accounting requirements applicable to
U.S.-publicly owned business organizations generally.
(i) Compensation; Employment Agreements; Etc. Enter into, amend,
modify or renew any employment, consulting, change in control or similar
contract, agreement or arrangement with any director or employee, or grant
any salary or wage increase, equity awards or incentive or bonus payments,
except (1) to make changes that are required by applicable law or the
terms of a Benefit Arrangement, (2) to grant merit-based or annual salary
increases in the ordinary and usual course of business and in accordance
with past practice or (3) for employment arrangements for, or grants of
awards to, newly hired employees or promoted employees in the ordinary and
usual course of business consistent with past practice.
(j) Benefit Plans. Enter into, establish, adopt, amend, modify or
renew any pension, retirement, stock option, stock purchase, savings,
profit sharing, deferred compensation, bonus, group insurance or other
employee benefit, incentive or welfare contract, plan or arrangement or
any trust agreement in respect of any director, officer or employee or
take any action to accelerate the vesting or exercisability of stock
options, restricted stock or other compensation or benefits payable
thereunder, except (1) as may be required by applicable law or the terms
of a Benefit Arrangement, (2) amendments that do not increase benefits or
result in increased administrative costs or (3) for employment
arrangements for, or grants of awards to, newly hired employees or
promoted employees in the ordinary and usual course of business consistent
with past practice.
(k) Litigation. Settle or compromise any litigation, or other
pending or threatened suit, action, or claim which would require the
payment by the Company or a Subsidiary of more than $100,000 or would
impose a restriction on the business, assets or operations of the Company
following the Effective Time, except that the Company may make any such
payment in respect of matters Previously Disclosed in an amount in each
such case to the extent specifically reserved or accrued therefor in the
Company's consolidated balance sheet dated as of January 31, 2006 and if
the Company obtains a general release in connection therewith.
(l) Indebtedness, Investments. Incur, assume, guarantee or
otherwise become liable for any indebtedness for borrowed money,
including, without limitation, capital leases, or make any loans or
advances or make any capital contributions to, or investments in, any
other Person in excess of $250,000 individually, or $500,000 in the
aggregate, except indebtedness to trade creditors of the Company or its
Subsidiaries in
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the ordinary and usual course consistent with past practices. This Section
4.01(l) shall not apply to performance bonds, letters of credit and
similar instruments in the conduct of its business in the ordinary course.
(m) Material Contract. Enter into, modify, amend, terminate (other
than at the end of the term thereof) or waive any material rights under
any Company Material Contract, other than in the ordinary and usual course
of business consistent with past practice.
(n) Reorganization. Adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company or any Subsidiary
(other than the Merger).
(o) Adverse Actions. Take, or omit to take, any action which would
reasonably be expected to have the legal or practical effect of materially
delaying or preventing the expiration or termination of any applicable
waiting period under the HSR Act prior to the Effective Time.
(p) Confidentiality Agreements. The Company will not waive any of
its rights in any material respect under any Existing Confidentiality
Agreement.
(q) Commitments. Enter into any contract with respect to, or
otherwise agree or commit to do, directly or indirectly, any of the
foregoing.
4.02 Agreements of Parent. Parent agrees that, from the date hereof until
the Effective Time, without the prior written consent of the Company, it will
not, and will cause each of its Subsidiaries not to:
(a) Adverse Actions. Take, or omit to take, any action that would
reasonably be expected to result in any of the conditions to the Merger
set forth in Article VII not being satisfied in a timely manner, including
enter into agreements with respect to any acquisitions, mergers,
consolidations or business combinations which has the effect of materially
delaying or preventing the consummation of the Merger or the other
Transactions or the obtaining of any regulatory or other consent or
approval contemplated hereby.
(b) Commitments. Enter into any contract with respect to, or
otherwise agree or commit to do, directly or indirectly, any of the
foregoing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Disclosure Schedules. Before entry into this Agreement, the Company
delivered to Parent a schedule (the "Disclosure Schedule") which is divided into
sections and subsections corresponding to the sections and subsections of this
Agreement setting forth, among other things, items the disclosure of which is
necessary or appropriate either (a) in response to an
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express disclosure requirement contained in a provision hereof or (b) as an
exception to one or more representations or warranties contained in Section 5.03
or to one or more of its covenants contained in Article IV; provided that the
inclusion of an item in the Disclosure Schedule as an exception to a
representation or warranty will not by itself be deemed an admission by the
Company that such item is material or was required to be disclosed therein.
Unless otherwise specifically defined therein or the context otherwise requires,
capitalized terms set forth in the Disclosure Schedule shall have the meanings
ascribed to such terms in this Agreement.
5.02 Standard for Breach of Representations and Warranties. For all
purposes of this Agreement, no representation or warranty of the Company or
Parent contained in Section 5.03 (other than the representations and warranties
contained in Section 5.03(b), which shall be true in all respects except for de
minimus variations, and in 5.03(g)(2)(B), which shall be true in all respects)
will be deemed untrue, and no party will be deemed to have breached a
representation or warranty, where such failure to be true or breach of such
representation or warranty would not be material and adverse to the Company and
its Subsidiaries taken as a whole, or Parent and its Subsidiaries taken as a
whole, as the case may be.
5.03 Representations and Warranties. Except as Previously Disclosed, the
Company hereby represents and warrants to Parent, and Parent hereby represents
and warrants to the Company, except where specifically indicated as applicable
only to the Company or Parent, as the case may be, as follows:
(a) Organization and Standing. It is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its incorporation. It is duly qualified to do business and is in good
standing in all jurisdictions where its ownership or leasing of property
or assets or its conduct of business requires it to be so qualified.
(b) Company Stock. In the case of the Company only:
The authorized capital stock of the Company consists of 100,000,000
shares of Company Common Stock. As of February 24, 2006, no more than
29,367,498 shares of Company Common Stock were issued and outstanding. As
of February 24, 2006, no more than 2,106,550 shares of Company Common
Stock were issuable upon exercise of Company Stock Options under Company
Stock Plans. As of February 24, 2006, no shares of Company Common Stock
were issuable upon exercise of any other Rights under Company Stock Plans.
As of the date of this Agreement, (1) no shares of Company Common Stock
have been issued since February 24, 2006, other than shares of Company
Common Stock issued pursuant to the exercise of Company Stock Options
issued and outstanding as of February 24, 2006 and (2) no Company Stock
Options have been issued since February 24, 2006. The outstanding shares
of Company Common Stock have been duly authorized and are validly issued
and outstanding, fully paid and nonassessable, and not subject to
preemptive rights (and were not issued in violation of any preemptive
rights). Except as set forth above and except for shares issuable pursuant
to Company Stock Plans, there are no shares of Company Stock reserved for
issuance, the Company does not have any Rights outstanding with respect to
Company Stock and the Company does not have any commitment to authorize,
issue or sell any Company
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Common Stock, preferred stock or Rights, except pursuant to this
Agreement, outstanding Company Stock Options and Company Stock Plans. The
Company has no commitment to redeem, repurchase or otherwise acquire any
shares of Company Common Stock. The Company does not have a poison pill,
shareholder rights plan or agreement or any similar plans or agreements
having similar consequences that will be triggered as a result of the
Transactions.
(c) Company Subsidiaries. In the case of the Company only:
(1) (A) It owns, directly or indirectly, all the outstanding
equity securities of each of its Subsidiaries free and clear of any
Liens, (B) no equity securities of any of its Subsidiaries are or
may become required to be issued (other than to it or its wholly
owned Subsidiaries) by reason of any Right or otherwise, (C) there
are no contracts, commitments, understandings or arrangements by
which any of such Subsidiaries is, or may be, bound to sell or
otherwise transfer any equity securities of any such Subsidiaries
(other than to it or its wholly-owned Subsidiaries), (D) there are
no contracts, commitments, understandings or arrangements relating
to its rights to vote or to dispose of such securities and (E) all
the equity securities of each Subsidiary held by it or its
Subsidiaries have been duly authorized and are validly issued and
outstanding, fully paid and nonassessable.
(2) Each of its Subsidiaries has been duly organized and is
validly existing in good standing under the laws of the jurisdiction
of its organization, and is duly qualified to do business and in
good standing in all jurisdictions where its ownership or leasing of
property or its conduct of business requires it to be so qualified.
(d) Power. It and, in the case of the Company only, each of its
Subsidiaries, has the corporate (or comparable) power and authority to
carry on its business as it is now being conducted and to own all its
properties and assets; and it has the corporate (or comparable) power and
authority to execute, deliver and perform its obligations under this
Agreement and to consummate the Transactions.
(e) Authority. It has duly authorized, executed and delivered this
Agreement. Subject only in the case of the Company to receipt of the
affirmative vote of the holders of at least two-thirds of the outstanding
shares of Company Common Stock to approve the Plan of Merger (the "Company
Shareholder Approval"), this Agreement and the Transactions have been
authorized by all necessary respective corporate action. In the case of
the Company only, at a meeting duly called and held, the Company Board has
(1) determined that this Agreement and the transactions contemplated
hereby, including the Merger (collectively, the "Transactions"), are fair
to, and in the best interests of, the holders of Shares, (2) approved,
adopted and declared advisable this Agreement and the Transactions (such
approval and adoption having been made in accordance with the TBCA,
including, without limitation, Part 13 thereof), and (3) recommended that
the Merger and this Agreement be approved by the shareholders of the
Company (the "Company Board Recommendation"); provided, however, that any
withdrawal,
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modification or qualification of such recommendation in accordance with
Section 6.06 shall not be deemed a breach of this Section 5.03(e). This
Agreement is its valid and legally binding obligation, enforceable in
accordance with its terms (except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or
affecting creditors' rights or by general equity principles).
(f) Regulatory Approvals; No Defaults.
(1) No consents or approvals of, or filings or registrations
with, any Governmental Authority or with any third party are
required to be made or obtained by it or, in the case of the Company
only, any of its Subsidiaries in connection with the execution,
delivery or performance by it of this Agreement or to consummate the
Merger, except for (A) filings of applications and notices with,
receipt of approvals or non-objections from, and expiration of
related waiting periods, required by U.S. federal or foreign
Governmental Authorities, (B) filing of notices, and expiration of
the related waiting period, under the HSR Act, (C) filings as may be
required by the Securities Act or the Exchange Act including, in the
case of the Company only, filing of the Proxy Statement with the
SEC, (D) receipt of the Company Shareholder Approval, and (E) the
filing of the Articles of Merger and the issuance of the Certificate
of Merger.
(2) Subject to receipt of the consents and approvals
referred to in the preceding paragraph, and the expiration of
related waiting periods, and required filings with U.S. federal or
foreign Governmental Authorities, the execution, delivery and
performance of this Agreement and the consummation of the
Transactions do not and will not (A) constitute a breach or
violation of, or a default under, or give rise, in the case of the
Company only, to any Lien or any acceleration of remedies, penalty,
increase in material benefit payable or right of termination under,
any law, rule or regulation or any judgment, decree, order,
governmental permit or license, or agreement, indenture or
instrument of it or, in the case of the Company only, of any of its
Subsidiaries or to which it or, in the case of the Company only, any
of its Subsidiaries or properties is subject or bound, (B)
constitute a breach or violation of, or a default under, its
Constituent Documents or (C) require any consent or approval under
any such law, rule, regulation, judgment, decree, order,
governmental permit or license, agreement, indenture or instrument.
(g) Company Financial Reports and Regulatory Filings; Material
Adverse Effect. In the case of the Company only:
(1) Since January 31, 2001, the Company has filed with the
SEC all material forms, statements, reports and documents required
to be filed by it under the Exchange Act and the Securities Act. Its
Annual Reports on Form 10-K for the fiscal years ended January 31,
2003, 2004, and 2005 and all other reports, registration statements,
definitive proxy statements or information statements filed by it or
any of its Subsidiaries subsequent to January 31, 2002 under the
- 17 -
Securities Act, or under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, in the form filed (collectively, its "Regulatory
Filings") with the SEC as of the date filed, (A) complied in all
material respects as to form with the applicable requirements under
the Securities Act or the Exchange Act, as the case may be, and (B)
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 therein, in the light of the circumstances under
which they were made, not misleading; and each of the consolidated
statements of financial position contained in or incorporated by
reference into any such Regulatory Filing (including the related
notes and schedules) fairly presented in all material respects the
financial position of it and its Subsidiaries on a consolidated
basis as of the date of such statement in accordance with GAAP
consistently applied during the periods involved, except in each
case as may be noted therein, and, in the case of quarterly reports
filed on Form 10-Q, subject to normal year-end audit adjustments as
permitted by SEC Form 10-Q promulgated under the Exchange Act in the
case of unaudited statements.
(2) Since January 31, 2005, except for liabilities (A)
permitted or contemplated by this Agreement, (B) incurred in the
ordinary course of business, or (C) that would not reasonably be
expected to be material and adverse to the Company and its
Subsidiaries taken as a whole, the Company has not incurred any
liabilities of a nature required to be set forth or reflected in a
balance sheet prepared in accordance with GAAP.
(3) Since January 31, 2005, (A) it and its Subsidiaries have
conducted their respective businesses in the ordinary and usual
course consistent with past practice (excluding the incurrence of
expenses related to this Agreement and the Transactions) and (B) no
event has occurred or circumstance has arisen that has had or is
reasonably likely to have a Material Adverse Effect with respect to
it.
(h) Company Litigation. In the case of the Company only, as of the
date hereof, there is no suit, action, investigation or proceeding pending
or, to its Knowledge, threatened against or affecting it or any of its
Subsidiaries, nor is there any judgment, decree, injunction, rule or order
of any Governmental Authority or arbitration outstanding against it or any
of its Subsidiaries.
(i) Company Regulatory Matters. In the case of the Company only,
neither it nor any of its Subsidiaries is subject to or has been advised
by any Governmental Authority that it is likely to become subject to, any
written order, decree or similar agreement from or with any U.S. federal
Governmental Authority charged with the regulation of, or enforcement of
matters concerning, persons engaged in Defense Businesses.
(j) Company Compliance with Laws. In the case of the Company only,
it and each of its Subsidiaries:
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(1) conducts its business in compliance with all applicable
federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders or decrees applicable thereto
or to the employees conducting such businesses;
(2) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations with, all Governmental Authorities that are required
in order to permit them to own or lease their properties and to
conduct their businesses as presently conducted; all such permits,
licenses, certificates of authority, orders and approvals are in
full force and effect and, to its Knowledge, no suspension or
cancellation of any of them is threatened; and
(3) has not received, since January 31, 2005, written
notification from any Governmental Authority (A) asserting that it
or any of its Subsidiaries is not in compliance with any of the
statutes, regulations or ordinances which such Governmental
Authority enforces or (B) threatening to revoke any license,
franchise, permit or governmental authorization.
(k) Company Material Contracts; Defaults. In the case of the
Company only:
(1) Neither it nor any of its Subsidiaries is a party to,
bound by or subject to any agreement, contract, arrangement,
commitment or understanding (whether written or oral) (A) that is a
"material contract" within the meaning of Item 601(b)(10) of the
SEC's Regulation S-K or (B) that restricts in any material respect
the conduct of business by it or any of its Subsidiaries or its or
their ability to compete in any line of business (each a "Material
Contract").
(2) Neither it nor any of its Subsidiaries is in default
under any Material Contract, and to its Knowledge, there has not
occurred any event that, with the lapse of time or the giving of
notice or both, would constitute such a default.
(l) Company Taxes. In the case of the Company only,
(i) (1) all Tax Returns that are required to be filed (taking
into account any extensions of time within which to file) by
or with respect to it and its Subsidiaries have been duly and
timely filed, (2) all Taxes shown to be due on the Tax Returns
referred to in clause (1) have been paid in full, (3) all
Taxes that it or any of its Subsidiaries is obligated to
withhold from amounts owing to any employee, creditor or third
party have been withheld and paid over to the proper
Governmental Authority, to the extent due and payable, and (4)
no extensions or waivers of statutes of limitation have been
given by or requested with respect to any of its U.S. federal
income taxes or those of its Subsidiaries. The Company has
either paid or made provision in accordance with GAAP, in the
consolidated financial statements included in the Regulatory
Filings filed before the
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date hereof, for all Taxes of the Company and its Subsidiaries
that accrued on or before the end of the most recent period
covered by its Regulatory Filings filed before the date
hereof. No Liens for Taxes exist with respect to any of its
assets or properties or those of its Subsidiaries.
(ii) The Company's reserve for Taxes contained in its
consolidated financial statements included in the Regulatory
Filings filed before the date hereof is adequate, as
determined under GAAP, to cover any unpaid Taxes of the
Company and its Subsidiaries.
(iii) Neither the Company nor any of its Subsidiaries is a
party to or bound by any Tax allocation or sharing agreement
which could require a payment by the Company or a Subsidiary
to a party other than the Company or a Subsidiary. Neither the
Company nor any of its Subsidiaries has any liability for the
Taxes of any Person (other than Company or any of its
Subsidiaries) under Reg. ss.1.1502-6 (or any similar provision
of state, local, or foreign law).
(iv) No written claim has been made by a taxing authority in a
jurisdiction where the Company or its Subsidiaries does not
file Tax Returns that the Company or its Subsidiaries may be
subject to taxation by that jurisdiction.
(v) Neither the Company nor any of its Subsidiaries is a party
to any agreement, contract or arrangement or plan that could
result, separately or in the aggregate, as a result of the
transactions contemplated by this Agreement, in the payment of
any "excess parachute payment" within the meaning of Code
Section 280G (or any corresponding provision of state, local
or foreign Tax law).
(vi) Within the past two years (or any other Tax year for
which the applicable statute of limitations is open as of the
date of this Agreement), neither the Company nor any of its
Subsidiaries has 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 Code Section 355 or Code Section 361.
(vii) Neither the Company nor any of its Subsidiaries will be
required to include any item of income in, or exclude any item
of deduction from, taxable income for any taxable period (or
portion thereof) ending after the Closing Date as a result of
any "closing agreement" as described in Code Section 7121 (or
any corresponding provision).
(m) Company Employee Benefit Plans. In the case of the Company
only:
(1) All of its Benefit Arrangements are Previously
Disclosed. True and complete copies of all Benefit Arrangements,
including, but not limited to,
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any trust instruments and insurance contracts forming a part of any
Benefit Arrangements, and all amendments thereto, have been made
available to Parent.
(2) All of its Benefit Arrangements, other than
"multiemployer plans" within the meaning of Section 3(37) of ERISA,
are in compliance with ERISA, the U.S. Internal Revenue Code of 1986
(the "Code") and other applicable laws. Each of its Benefit
Arrangements which is an "employee pension benefit plan" within the
meaning of Section 3(2) of ERISA ("Pension Plan"), and which is
intended to be qualified under Section 401(a) of the Code, has
received a favorable determination letter from the U.S. Internal
Revenue Service, and to its Knowledge there are no circumstances
reasonably likely to result in revocation of any such favorable
determination letter or which would result in material costs under
the U.S. Internal Revenue Service's Employee Plans Compliance
Resolution System.
(3) None of it, any of its Subsidiaries or any entity which
is considered one employer with it under Section 4001 of ERISA or
Section 414 of the Code (an "ERISA Affiliate") has contributed to a
"multiemployer plan", within the meaning of Section 3(37) of ERISA,
at any time within the last six years.
(4) All contributions required to be made under the terms of
any of its Benefit Arrangements have been timely made or have been
reflected on its consolidated financial statements included in its
Regulatory Filings. None of its Pension Plans or any single-employer
plan of any of its ERISA Affiliates has an "accumulated funding
deficiency" (whether or not waived) within the meaning of Section
412 of the Code or Section 302 of ERISA and none of its ERISA
Affiliates has an outstanding funding waiver. Neither it nor any of
its Subsidiaries has provided, or is required to provide, security
to any of its Pension Plans or to any single-employer plan of any of
its ERISA Affiliates pursuant to Section 401(a)(29) of the Code.
(5) Neither it nor any of its Subsidiaries has any
obligations for retiree health and life benefits under any Benefit
Arrangement or collective bargaining agreement, other than for
benefits required by applicable law or the cost of which is borne by
the participant.
(6) Neither its execution of this Agreement, the
consummation of the Transactions nor the Company Shareholder
Approval will, either alone or in conjunction with another event
(such as termination of employment), (A) entitle any of its
employees or any employees of its Subsidiaries to severance pay or
any increase in severance pay or (B) accelerate the time of payment
or vesting or trigger any payment or funding (through a grantor
trust or otherwise) of compensation or benefits under, increase the
amount payable or trigger any other material obligation pursuant to,
any of its Benefit Arrangements.
(n) Takeover Laws and Provisions Applicable to the Company. In the
case of the Company only, it has taken all action required to be taken by
it in order to exempt this
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Agreement and the Transactions from, and this Agreement and the
Transactions are exempt from, the provisions of Article 13.03 of the TBCA,
and the requirements of any "moratorium," "control share", "fair price",
"affiliate transaction", "business combination" or other anti-takeover
laws and regulations of any state (collectively, "Takeover Laws"). In the
case of the Company only, it has taken all action required to be taken by
it in order to make this Agreement and the Transactions comply with, and
this Agreement and the Transactions do comply with, the requirements of
any Articles, Sections or provisions of its Constituent Documents
concerning "business combination", "fair price", "voting requirement",
"constituency requirement" or other related provisions (collectively,
"Takeover Provisions").
(o) Financial Advisors and Consultants. None of it, its
Subsidiaries or any of their officers, directors or employees has employed
any broker or finder or incurred any liability for any brokerage fees,
commissions or finder's fees in connection with the Transactions, except
that, in connection with this Agreement, Parent has retained Wachovia
Securities and Xxxxxx & Co. LLC as its financial advisors, and the Company
has retained Xxxxxxx Xxxxx & Co. as its financial advisor and Xxxxxxxx
Partners as an outside consultant, the arrangements with which have been
disclosed to Parent prior to the date hereof.
(p) Xxxxxxxx-Xxxxx Act. In the case of the Company only, it is in
compliance with the provisions of the Xxxxxxxx-Xxxxx Act, including
Section 404 thereof, and to its Knowledge, the certifications provided
pursuant to Sections 302 and 906 thereof with each Regulatory Filing of
the Company, at the time of filing or submission of each such
certification, were accurate.
(q) Company Labor Matters. In the case of the Company only,
neither it nor any of its Subsidiaries is a party to, or is bound by, any
collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is it or any
of its Subsidiaries the subject of a proceeding asserting that it or any
such Subsidiary has committed an unfair labor practice (within the meaning
of the National Labor Relations Act) or seeking to compel it or such
Subsidiary to bargain with any labor organization as to wages and
conditions of employment, nor is there any strike or other labor dispute
involving it or any of its Subsidiaries pending or, to its Knowledge,
threatened, nor is it aware, as of the date of this Agreement, of any
activity involving it or any of its Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in any other organization
activity.
(r) Company Environmental Matters. In the case of the Company
only, there are no proceedings, claims, actions or investigations of any
kind pending or, to the Knowledge of the Company, threatened, against the
Company or any Subsidiary in any court, agency or other Governmental
Authority or in any arbitral body, arising under any Environmental Law;
the Company and its Subsidiaries have conducted their respective
operations in compliance with their respective environmental permits and
the limitations, restrictions, conditions, standards, prohibitions,
requirements and obligations of applicable Environmental Laws; all permits
required under Environmental Laws have been obtained and are in full force
and effect; there have been no releases of Materials of
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Environmental Concern or other conditions at any property owned, or
operated by the Company or its Subsidiaries that would require remediation
under Environmental Laws; and, no facts or circumstances exist that would
reasonably be expected to result in any liabilities under Environmental
Law or common law relating to the operations of the Company or its
Subsidiaries as a result of (1) any violation by the Company or its
Subsidiaries of any Environmental Law, or (2) the release, storage,
handling, treatment, transportation or disposal of any Materials of
Environmental Concern generated by the Company's or its Subsidiaries'
operations.
(s) Knowledge Regarding Representations; Satisfaction of
Conditions; No Additional Representations. In the case of Parent only:
(1) As of the date hereof, neither Parent nor Merger Sub is
aware of any inaccuracy or misstatement in, or breach of, any
representation or warranty of the Company contained herein.
(2) As of the date hereof, neither Parent nor Merger Sub is
aware of any reason why the conditions set forth in Article VII
hereof would not be timely satisfied.
(3) Parent acknowledges that it and its representatives have
received access to such books and records, facilities, equipment,
contracts and other assets of the Company and its Subsidiaries which
it and its representatives have desired or requested to review, and
that it and its representatives have had full opportunity to meet
with the management of the Company to discuss the businesses and
assets of the Company and its Subsidiaries. Parent acknowledges that
neither the Company nor any other person has made any representation
or warranty, expressed or implied, as to the accuracy or
completeness of any information regarding the Company furnished or
made available to Parent and its representatives except as expressly
set forth in Section 5.03 hereof, and neither the Company nor any
other person shall have or be subject to any liability to Parent,
Merger Sub or any other person resulting from the Company's
information memorandum dated December 2005, as subsequently updated,
supplemented or amended (the "Information Memorandum") or any
information, documents or material made available to Parent in the
due diligence materials provided to Parent, including in the "data
room," other management presentations (formal or informal including
the management presentation dated January 2006 and entitled
"Evaluation Materials" (the "Management Presentation")) or in any
other form in connection with the Transactions. Without limiting the
foregoing, the Company makes no representation or warranty to Parent
or Merger Sub with respect to (a) the information set forth in the
Information Memorandum or the Management Presentation or (b) any
financial projection or forecast relating to the Company or its
Subsidiaries, whether or not included in the Information Memorandum
or the Management Presentation. Except as otherwise expressly
provided herein, no information or knowledge obtained by any party
as described in this Section 5.03(s)(3) or otherwise shall affect or
be deemed to modify any representation or
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warranty made by any party hereunder, unless and to the extent a
party has actual knowledge to the contrary.
(t) Proxy Statement. In the case of the Company only:
(1) The proxy statement to be sent to the shareholders of
the Company in connection with such Shareholders' Meeting (such
proxy statement, as amended or supplemented, being referred to
herein as the "Proxy Statement"), shall not, at the date the Proxy
Statement (or any amendment or supplement thereto) is first mailed
to shareholders of the Company or at the time of the Shareholders'
Meeting, contain any statement which, at the time and in light of
the circumstances under which it was made, be false or misleading
with respect to any material fact, or omit to state any material
fact necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the
Shareholders' Meeting which shall have become false or misleading.
(2) Notwithstanding the foregoing, the Company makes no
representation or warranty with respect to any information supplied
by Parent, Merger Sub or any of Parent's or Merger Sub's
representatives for inclusion in the Proxy Statement.
(3) The Proxy Statement shall comply in all material
respects as to form with the requirements of the Exchange Act and
the rules and regulations thereunder.
(4) Xxxxxxx Xxxxx & Co. has consented to the inclusion of
the full text of its opinion described in Section 5.03(o) in the
Proxy Statement and the Company has provided a copy of such opinion
to the Parent and Merger Sub.
(u) Proxy Statement. In the case of Parent and Merger Sub only:
(1) The information supplied by Parent for inclusion in the
Proxy Statement shall not, at the date the Proxy Statement (or any
amendment or supplement thereto) is first mailed to shareholders of
the Company or at the time of the Shareholders' 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 false or misleading, or necessary to correct any
statement in any earlier communication with respect to the
solicitation of proxies for the Shareholders' Meeting which shall
have become false or misleading.
(2) Notwithstanding the foregoing, Parent and Merger Sub
make no representation or warranty with respect to any information
supplied by the Company or any of its representatives for inclusion
in the Proxy Statement.
(v) Required Vote of Company Shareholders. In the case of the
Company only, the affirmative vote of the holders of at least two-thirds
of the outstanding Shares,
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voting together as a single class, is the vote required to approve the
Merger and this Agreement, and no other vote of the security holders of
the Company is required by law, the Company's Constituent Documents or
otherwise in order for the Company to consummate the Merger and the other
Transactions contemplated hereby.
(w) Confidentiality Agreements. In the case of the Company only,
each confidentiality agreement executed by any person participating in the
auction process conducted by the Company in connection with its
solicitation of acquisition offers (the "Existing Confidentiality
Agreements") is substantially similar to the Confidentiality Agreement
executed by Parent, including, but not limited to, with respect to terms
concerning confidentiality, "standstill" obligations relating to the
purchase or offer to purchase any equity securities of the Company and
non-solicitation of the Company's employees. In addition, the Company has
not waived any of its rights under any of such other confidentiality
agreements.
5.04 Representations and Warranties about Merger Sub. Parent and Merger
Sub hereby jointly and severally represent and warrant to the Company as
follows:
(a) Organization and Standing. Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Texas. It is duly qualified to do business and is in good
standing in all jurisdictions where its ownership or leasing of property
or assets or its conduct of business requires it to be so qualified.
(b) Merger Sub Stock. The authorized capital stock of Merger Sub
consists of 1,000 shares of Merger Sub Common Stock. All of the issued and
outstanding capital stock of Merger Sub is owned by Parent as its sole
shareholder. The outstanding shares of Merger Sub Common Stock have been
duly authorized and are validly issued and outstanding, fully paid and
nonassessable, and not subject to preemptive rights (and were not issued
in violation of any preemptive rights).
(c) Power. Merger Sub has the corporate power and authority to
carry on its business as it is now being conducted and to own all its
properties and assets, and it has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the Transactions.
(d) Authority. Merger Sub has duly authorized, executed and
delivered this Agreement, and this Agreement and the Transactions have
been authorized by all other necessary corporate actions, including the
necessary approval of Parent as the sole shareholder of Merger Sub. This
Agreement is its valid and legally binding obligation, enforceable in
accordance with its terms (except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or
affecting creditors' rights or by general equity principles).
(e) Funds. Merger Sub has, or will have at the Effective Time,
sufficient funds available to satisfy the obligation to pay the Per Share
Consideration in the Merger.
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ARTICLE VI
COVENANTS
6.01 Reasonable Best Efforts. Subject to the terms and conditions of this
Agreement, Parent, Merger Sub and the Company will each use its reasonable best
efforts to take, or cause to be taken, in good faith, all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Merger as promptly as
practicable and otherwise to enable consummation of the Transactions, including,
in the case of the Company, using its reasonable best efforts to obtain the
consents of the Governmental Authorities that are parties to the contracts set
forth on Schedule 6.01 under those contracts, including the giving of any
notices thereunder, and each will cooperate fully with, and furnish information
to, the other party to that end. In furtherance and not in limitation of the
covenants of the parties contained in this Section 6.01, if any objections are
asserted with respect to the Transactions under any antitrust law, or if any
suit is threatened to be instituted, by any Governmental Authority or any
private party challenging any of the Transactions or otherwise brought under any
antitrust law or other applicable law that would otherwise prohibit or
materially impair or materially delay the consummation of the Transactions, each
of Parent, Merger Sub and the Company shall use its reasonable best efforts to
resolve any such objections or suits so as to permit consummation of the
Transactions as soon as practicable, and in any event before the Termination
Date. Notwithstanding anything in this Section 6.01 to the contrary, Parent
shall not be required to sell or dispose of any businesses or assets, to the
extent any such sale or disposition would have a material adverse effect on
Parent and the Company, taken as a whole.
6.02 Shareholder Approvals. The Company, acting through the Company
Board, shall, in accordance with applicable law, including the TBCA, and the
Company's Articles of Incorporation and By-laws, duly call, give notice of,
convene and hold an annual or special meeting of its shareholders as promptly as
practicable following the date hereof for the purpose of considering and taking
action on this Agreement and the Merger (the "Shareholders' Meeting"). At the
Shareholders' Meeting, Parent and Merger Sub shall cause all Shares then owned
by them and their subsidiaries to be voted in favor of the adoption of this
Agreement.
6.03 Proxy Statement. As promptly as practicable after the date hereof,
the Company shall file the Proxy Statement with the SEC under the Exchange Act,
and shall use its reasonable best efforts to have the Proxy Statement cleared by
the SEC promptly. The Company shall provide Parent and its counsel a reasonable
opportunity to review and comment upon the Proxy Statement prior to the filing
with the SEC. In addition, the Company shall provide Parent and its counsel a
written copy of any comments the Company or its counsel may receive from the SEC
or its staff with respect to the Proxy Statement promptly after receipt of such
comments and with copies of any written responses to such comments and
telephonic notification of any verbal responses to such comments by the Company
or its counsel. No filing of, or amendment to, or written correspondence to the
SEC or its staff with respect to the Proxy Statement shall be made by the
Company without providing Parent and its counsel reasonable opportunity to
review and comment thereon. Each of the Company, Parent and Merger Sub agrees to
use its reasonable best efforts, after consultation with the other parties
hereto, to respond promptly to all such comments of and requests by the SEC and
to cause the Proxy Statement and all required
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amendments and supplements thereto to be mailed to the holders of Shares
entitled to vote at the Shareholders' Meeting at the earliest practicable time.
Subject in each case to Section 6.06, the Company agrees to use its reasonable
best efforts to solicit from the holders of Shares proxies in favor of the
adoption of this Agreement and the Merger and take all other action necessary or
advisable to secure, at the Shareholders' Meeting the Company Shareholder
Approval, by the vote described in Section 5.03(v) of this Agreement.
6.04 Press Releases. Parent and the Company will consult with each other
before issuing any press release with respect to the Merger or this Agreement
and will not issue any such press release without the prior written consent of
the other party, which will not be unreasonably withheld or delayed; provided
that a party may, without the prior consent of the other party (but after prior
consultation, to the extent practicable in the circumstances), issue any such
press release or a public statement or file any required documents with the SEC
as may be required by applicable law or securities exchange rules. Parent and
the Company will cooperate to develop all public communications and make
appropriate members of management available at presentations related to the
Transactions as reasonably requested by the other party.
6.05 Access; Information.
(a) Company agrees that upon reasonable notice and subject to
applicable laws relating to the exchange of information, it will (and will
cause its Subsidiaries to) afford Parent, and Parent's Representatives and
accountants, such access during normal business hours throughout the
period before the Effective Time to the books, records (including, without
limitation, Tax Returns and work papers of independent auditors) and
properties and to such other information as Parent may reasonably request;
provided, however, that such access shall not unreasonably disrupt the
operations of the Company. All requests for such access shall be made to
representatives of the Company as the Company shall designate, who shall
be solely responsible for coordinating all such requests and all access
permitted hereunder. Neither Parent nor any of Parent's Representatives
shall contact any of the employees, customers or suppliers of the Company
in connection with the Transactions, whether in person or by telephone,
mail or other means of communication, without the specific prior written
authorization of such representatives of the Company as the Company may
designate. The Company will not be required to afford access or disclose
information that would jeopardize attorney-client privilege, contravene
any binding agreement with any third party or violate any law or
regulation. The parties will make reasonable appropriate substitute
arrangements in circumstances where the previous sentence applies.
(b) Each party will hold any information provided in connection
with this Agreement or the Transactions confidential in accordance with
the Confidentiality Agreement.
6.06 No Solicitation.
(a) From the date hereof until the Effective Time or the earlier
termination of this Agreement, the Company shall not, directly or
indirectly, through any officer, director, employee, representative or
agent of the Company or any of its Subsidiaries
- 27 -
(including any investment banker, attorney or accountant retained by it or
any of its Subsidiaries) (collectively, the "Company Representatives"),
and shall use commercially reasonable efforts to cause the Company
Representatives, not to, directly or indirectly, (i) initiate, solicit, or
knowingly encourage or facilitate inquiries or proposals with respect to,
or participate in negotiations concerning, or provide any confidential
information or data to, or have any substantive discussions with, any
third party relating to or that would reasonably be expected to lead to,
any Acquisition Proposal (except to notify such person as to the existence
of the provisions of this Section 6.06), or (ii) enter into any merger
agreement, acquisition agreement, letter of intent or similar document
providing for or otherwise relating to any Acquisition Proposal; provided,
that notwithstanding anything in this Agreement to the contrary, the
Company may, directly or indirectly through any of the Company
Representatives, furnish information and data to, and participate in
discussions or negotiations with, any person that has made a bona fide
written Acquisition Proposal if, and only to the extent that, (I) (A) such
Acquisition Proposal is at a price higher than the Per Share Consideration
and the Company's Board believes in good faith that there is a substantial
likelihood that the consummation of such Acquisition Proposal is probable
and (B) after the receipt of advice from outside legal counsel, the
Company Board determines in good faith that the failure to take such
action would be inconsistent with its fiduciary obligations to the
Company's shareholders under applicable law, (II) the Company shall not
have violated any of the provisions of this Section 6.06(a), and (III)
prior to taking such action, the Company receives from such person an
executed confidentiality agreement on terms with respect to
confidentiality, standstill obligations relating to the purchase or offer
to purchase any equity securities of the Company and non-solicitation of
the Company's employees on substantially similar terms to the
Confidentiality Agreement; provided, that, notwithstanding anything herein
to the contrary, the Company and its Representatives may take, and shall
not be prohibited or otherwise limited by the terms of such
confidentiality agreement in taking, any action that is otherwise
contemplated by this Section 6.06, including the waiver by the Company of
the standstill provision to permit discussions and negotiations, the
entering into of a definitive agreement and any other actions in the
furtherance thereof with respect to such Acquisition Proposal.
(b) Notwithstanding anything herein to the contrary, in the event
of any bona fide written Acquisition Proposal that has not been withdrawn,
(i) the Company Board may approve or recommend, and the Company may enter
into a definitive agreement providing for, an Acquisition Proposal that is
submitted to the Company prior to the Shareholders' Meeting, and (ii) the
Company Board may withdraw or modify in any manner adverse to Parent the
Company Board Recommendation (a "Company Board Change of Recommendation"),
if (I) the Company shall not have violated any of the provisions of
Section 6.06(a), (II) the Company provides Parent with written notice at
least three Business Days prior to any meeting of the Company Board at
which the Company Board will take any such action, during which
three-business day period Parent may propose revisions to the terms of
this Agreement, (III) notwithstanding such revisions proposed by Parent
pursuant to clause (II) above, the Company Board makes the determination
that such Acquisition Proposal constitutes a Superior Proposal, (IV) after
the receipt of advice from outside legal counsel, the Company Board
determines in
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good faith that the failure to take such action would be inconsistent with
its fiduciary obligations to the Company's shareholders under applicable
law.
(c) The Company shall promptly (and in any event within 24 hours
of receipt thereof) notify Parent after receipt of any Acquisition
Proposal (which notice shall identify the person making such Acquisition
Proposal and set forth the material terms thereof), any material
modification of or material amendment to any Acquisition Proposal
(including the material terms thereof), or any request for non-public
information relating to the Company by any person that has notified the
Company of its intention to make any Acquisition Proposal and the terms
and conditions of such request.
(d) The Company shall immediately cease and cause to be terminated
any existing discussions or negotiations with any persons (other than
Parent) conducted heretofore with respect to any of the foregoing. The
Company shall immediately request each person who has heretofore executed
a confidentiality agreement in connection with its consideration of
acquiring Company or any portion thereof to return or destroy in
accordance with the terms of such confidentiality agreement all
confidential information heretofore furnished to such person by or on
behalf of Company.
(e) Nothing contained in this Agreement shall prohibit the Company
or the Company Board from taking and disclosing to its shareholders a
position contemplated by Rule 14e-2(a) promulgated under the Exchange Act
or from making any disclosure to the Company's shareholders if, in the
good faith judgment of the Company Board, after consultation with outside
counsel, failure to take such action would be inconsistent with applicable
law.
(f) Nothing in this Agreement shall prohibit or restrict the
Company Board from making a Company Board Change of Recommendation to the
extent that the Company Board determines in good faith, following
consultation with outside legal counsel, that failure to take such action
would constitute a breach of the Company Board's fiduciary obligations
under applicable law.
6.07 Takeover Laws and Provisions. No party will take any action that
would cause the Transactions to be subject to requirements imposed by any
Takeover Law and each of them will take all necessary steps within its control
to exempt (or ensure the continued exemption of) such Transactions from, or if
necessary challenge the validity or applicability of, any applicable Takeover
Law, as now or hereafter in effect. No party will take any action that would
cause the Transactions not to comply with any Takeover Provisions and each of
them will take all necessary steps within its control to make such Transactions
comply with (or continue to comply with) the Takeover Provisions. Prior to the
Effective Time, the Company shall not elect to adopt, or otherwise take action
to become subject to, the TBOC.
6.08 Regulatory Applications.
(a) Parent and the Company and their respective Subsidiaries will
cooperate and use all reasonable best efforts to prepare as promptly as
possible all documentation, to effect all filings and to obtain all
material permits, consents, approvals and
- 29 -
authorizations of all third parties and Governmental Authorities necessary
to consummate the Transactions (the "Requisite Approvals") as promptly as
practicable, and will make all necessary filings in respect of those
Requisite Approvals as soon as practicable. Each of Parent and the Company
will have the right to review in advance, and to the extent practicable
each will consult with the other, in each case subject to applicable laws
relating to the exchange of information, with respect to all material
written information submitted to any third party or any Governmental
Authority in connection with the Requisite Approvals. In exercising the
foregoing right, each of the parties will act reasonably and as promptly
as practicable. Each party agrees that it will consult with the other
party with respect to obtaining all Requisite Approvals and each party
will keep the other party apprised of the status of material matters
relating to completion of the Transactions.
(b) Parent and the Company will, upon request, furnish the other
party with all information concerning itself, its Subsidiaries, directors,
officers and shareholders and such other matters as may be reasonably
necessary or advisable in connection with any filing, notice or
application made by or on behalf of such other party or any of its
Subsidiaries with or to any third party or Governmental Authority in
connection with the Transactions and to the extent permitted by the
applicable Governmental Authority or any person objecting to the
Transactions, give the other party the opportunity to attend and
participate in any meetings and conferences with such Governmental
Authority or person objecting to the Transactions.
6.09 Indemnification.
(a) The indemnification provisions of the Constituent Documents of
the Surviving Corporation as in effect at the Effective Time shall not be
amended, repealed or otherwise modified for a period of six years from the
Effective Time in any manner that would adversely affect the rights
thereunder of individuals who at the Effective Time were directors,
officers or employees of the Company unless such modification is, in the
opinion of outside counsel, required by applicable law. Parent shall
assume, be jointly and severally liable for, and honor, guarantee and
stand surety for, and shall cause the Surviving Corporation to honor, in
accordance with their respective terms, each of the covenants contained in
this Section 6.09.
(b) Without limiting Section 6.09(a), following the Effective
Time, Parent and the Surviving Corporation will indemnify, defend and hold
harmless the present and former directors, officers and employees of the
Company and its Subsidiaries (each, an "Indemnified Party") against all
costs or expenses (including reasonable attorneys' fees and costs of
investigation), judgments, fines, losses, claims, damages or liabilities
as incurred, in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative,
arising out of actions or omissions before, or at the Effective Time
(including as to, or arising out of or pertaining to, the Transactions),
to the fullest extent permitted by applicable law and the Constituent
Documents. Parent shall pay all costs and expenses in connection with such
indemnification promptly as statements therefor are received, provided,
however, the Parent or the Surviving Corporation may condition the payment
of any costs and
- 30 -
expenses upon the execution and delivery to the Parent or the Surviving
Corporation of an undertaking in customary form providing solely that the
Indemnified Party undertakes to repay any payments advanced to the extent
that it is ultimately and finally judicially determined that the
Indemnified Party is not entitled to be indemnified by the Parent or the
Surviving Corporation. At and as of the Effective Time Parent shall cause
the By-laws of the Surviving Corporation to conform with the Constituent
Documents of the Company and with its obligations under this Section 6.09.
(c) For a period of six years following the Effective Time, Parent
will cause to be maintained in effect director's and officer's liability
insurance that serves to reimburse the present and former officers and
directors (determined as of the Effective Time) of the Company or any of
their respective Subsidiaries (as opposed to reimbursing the Company or
such Subsidiary) with respect to claims against such directors and
officers arising from facts or events occurring before, or at the
Effective Time (including as to, arising out of or pertaining to, the
Transactions), which insurance will contain at least the same coverage and
amounts of coverage and will contain terms and conditions no less
advantageous to the Indemnified Party than those provided in the
director's and officer's liability insurance currently provided by the
Company; provided, that officers and directors of the Company or any
Subsidiary may be required to make application and provide customary
representations and warranties to Parent's insurance carrier for the
purpose of obtaining insurance required to be provided by Parent pursuant
to this Section 6.09(c); provided, however, that the premium for such
coverage does not exceed 200% of current premium, in which event the
obligation shall be only to provide the maximum coverage available for a
premium not in excess of such amount; and provided, further, the
obligation of Parent, Merger Sub and the Surviving Corporation in this
Section 6.09(c) shall be satisfied by the purchase by the Company on or
before the Effective Time of a "tail-coverage" or "run-off' insurance
policy providing the coverage required under this Section 6.09(c) for the
required term hereof that is substantially in accord with the requirements
of this Section 6.09(c), the premium for which does not exceed 200% of
current premium.
(d) Any Indemnified Party wishing to claim indemnification under
Section 6.09(a), upon learning of any claim, action, suit, proceeding or
investigation described above, will promptly notify Parent; provided that
failure so to notify will not affect the obligations of Parent under
Section 6.09(a) unless and to the extent that Parent is actually
prejudiced as a consequence.
(e) If Parent or any of its successors or assigns (1) consolidates
with or merges into any other entity and is not the continuing or
surviving entity of such consolidation or merger or (2) transfers all or
substantially all of its assets to any other entity, then and in each
case, Parent will, as a condition precedent to the consummation of any
such transaction, cause proper provision to be made so that the successors
and assigns of Parent will, by specificity, assume the obligations set
forth in this Section 6.09 except to the extent that with respect to
clause (1) such obligations shall have been assumed by operation of law.
- 31 -
(f) The provisions of this Section 6.09 shall survive the
Effective Time and are intended to be for the benefit of, and will be
enforceable by, each Indemnified Party and his or her heirs and legal
representatives.
(g) Parent shall pay all reasonable expenses, including reasonable
attorneys' fees and costs of investigation, that may be incurred by any
Indemnified Party in enforcing all obligations provided in this Section
6.09, provided, however, Parent or the Surviving Corporation may condition
the payment of any costs and expenses upon the execution and delivery to
Parent or the Surviving Corporation of an undertaking in customary form
providing solely that the Indemnified Party undertakes to repay any
payments advanced (including legal fees and expenses) to the extent that
it is ultimately and finally judicially determined that the Indemnified
Party is not entitled to be indemnified by Parent or the Surviving
Corporation.
6.10 Employee Matters.
(a) From the Effective Time until the date which is six months
after the Closing Date (such date being referred to herein as the
"Benefits Transition Date"), Parent shall provide the employees and former
employees of the Company and its Subsidiaries, as of the Effective Time
(the "Covered Employees") taken as a whole with employee benefits and
compensation plans, programs and arrangements (including base salary and
annual bonus opportunities, but specifically excluding equity grants and
any Supplemental Executive Retirement Plan benefits) no less favorable, in
the aggregate, than those provided by the Company or its Subsidiaries, as
the case may be, to such Covered Employees immediately prior to the
Effective Time. From and after the Benefits Transition Date, Parent shall
provide the Covered Employees taken as a whole with employee benefits and
compensation plans, programs and arrangements and severance benefits that
are no less favorable, in the aggregate, to those provided to similarly
situated employees of Parent and its Subsidiaries. In addition, during the
24 months after the Effective Time, a Covered Employee whose employment is
terminated "without cause" (as defined in such policy) shall be entitled
to receive severance payments and benefits under the Company's severance
policy described in the Disclosure Schedule.
(b) From and after the Effective Time, Parent shall, (1) provide
all Covered Employees with service credit (for purposes of eligibility
(including eligibility for retirement), participation, vesting, levels of
benefits and benefit accruals under any employee benefit or compensation
plan, program or arrangement adopted, maintained or contributed to by
Parent or any of its Subsidiaries in which Covered Employees are eligible
to participate, but specifically excluding any Supplemental Executive
Retirement Plan benefits), for all periods of employment with the Company
or any of its Subsidiaries (or their predecessor entities) prior to the
Effective Time to the extent credited by the Company for purposes of a
comparable plan (provided that there will be no duplication of benefits)
and (2) cause any pre-existing conditions, limitations, eligibility
waiting periods or required physical examinations under any group health
plans of Parent or any of its Subsidiaries to be waived with respect to
the Covered Employees and their eligible dependents to the extent waived
under the corresponding plan (for a comparable level of
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coverage) in which the applicable Covered Employee participated
immediately prior to the Effective Time. If the Company's medical and/or
dental benefit plans for Covered Employees are terminated prior to the end
of a plan year, Covered Employees and their dependents who are then
participating in a deductible-based medical and/or dental plan sponsored
by the Company will be given credit for deductibles and eligible
out-of-pocket expenses incurred towards deductibles and out-of-pocket
maximums during the portion of the plan year preceding the termination
date in a comparable deductible-based medical and/or dental plan of Parent
or any of its Subsidiaries for the corresponding Parent benefit plan year.
(c) Except as otherwise provided in this Agreement, Parent and the
Company shall honor, or cause to be honored, in accordance with their
terms, all vested or accrued benefit obligations to, and contractual
rights of, Covered Employees of the Company and its Subsidiaries,
including any benefits or rights arising as a result of the Merger (either
alone or in combination with any other event).
(d) Parent and the Company hereby agree that the Transactions
shall constitute a "change in control" for purposes of any Benefit
Arrangement for the Company to the extent such Benefit Arrangements
include such term.
(e) The Company shall be permitted at any time prior to the
Effective Time to pay annual bonuses based upon performance in its fiscal
year ending January 31, 2006, in the ordinary course of business
consistent with past practice in an amount currently accrued on the
Company's consolidated balance sheet as of January 31, 2006. The Company
has proposed to Merger Sub a bonus plan for the fiscal year ending January
31, 2007, a copy of which is set forth in Section 6.10(e) of the
Disclosure Schedule, based upon targets and goals substantially similar to
those established for its fiscal year ending January 31, 2006, but
adjusted so as to apply to the fiscal year ending January 31, 2007 in
accordance with past practices. The adoption of such bonus plan for the
year ended January 31, 2007 shall not be adopted without the consent of
Parent and Merger Sub, but such consent shall not be unreasonably
withheld. In granting such consent, Parent and Merger Sub shall be
entitled in good faith to propose modifications to such plan that are
reasonably intended to make such plan substantially similar in its
purposes and effects to Parent's existing plans for its own employees. The
Company will in good faith agree to changes proposed by Parent in such
regards.
(f) The Covered Employees shall participate in Parent's bonus
plans for similarly situated employees for the remainder of calendar year
2006 on the same terms and conditions as are Parent's other similarly
situated employees. The Company's performance in respect of calculations
made under the bonus plans for its fiscal year ending January 31, 2006,
shall be calculated without taking into account any expenses or costs
associated with or arising as a result of the Transactions or any
nonrecurring charges that would not reasonably be expected to have been
incurred had the Transactions not occurred and shall not be subject to
reduction or negative discretion by the administrator of the bonus plan.
If the Effective Time shall have occurred prior to the Company having paid
bonuses for the fiscal year ending January 31, 2006, then Parent
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shall pay such bonuses to the Covered Employees promptly following the
Effective Time.
6.11 Notification of Certain Matters. Parent and the Company will give
prompt notice to the other of any fact, event or circumstance known to it that
would cause or constitute a breach of any of its representations, warranties,
covenants or agreements contained herein that would be reasonably likely to
cause a condition in Article VII not to be capable of being satisfied by the
Termination Date.
6.12 Parent Financing. The Company hereby confirms and agrees that
Wachovia Bank, National Association, its representatives and or affiliates (a)
may assist, provide and/or arrange financing (the "Financing") in order for
Parent to directly or indirectly acquire, or agree to acquire, offer, seek or
propose to acquire directly or indirectly, ownership of the Company or its
Subsidiaries or any securities issued by the Company or its Subsidiaries or any
rights or options to acquire such ownership, all in accordance with the terms
and conditions of this Agreement, and (b) following the Effective Time and the
Financing, may exercise any rights or remedies available to it under the credit
documentation or otherwise, and that such actions will not be deemed to be in
violation of the standstill provisions of the Confidentiality Agreement.
ARTICLE VII
CONDITIONS TO THE MERGER
7.01 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each party to consummate the Merger is subject to the
fulfillment or written waiver by the parties before the Effective Time of each
of the following conditions:
(a) Shareholder Approval. The Company Shareholder Approval shall
have been obtained.
(b) HSR Expiration. The applicable waiting period under the HSR
Act shall have expired or been terminated.
(c) No Order. No Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any law, rule, regulation,
injunction, order, decree or ruling (whether temporary, preliminary or
permanent) which is then in effect and has the effect of making the Merger
illegal or otherwise restricting, preventing or prohibiting consummation
of the Merger.
7.02 Conditions to the Company's Obligation. The Company's obligation to
consummate the Merger is also subject to the fulfillment or written waiver by
the Company before the Effective Time of each of the following conditions:
(a) Parent's Representations and Warranties. The representations
and warranties of Parent in this Agreement, including those relating to
Merger Sub, shall be true and correct as of the date of this Agreement and
as of the Closing Date as though made on and as of such date (except to
the extent such representations and warranties speak as of an earlier
date, in which case such representations and warranties shall be true
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and correct as of such date) without regard to the standard set forth in
Section 5.02 of this Agreement, except where the aggregate effect of all
such failures to be true and correct would not have a Material Adverse
Effect on Parent; and the Company shall have received a certificate, dated
the Closing Date, signed on behalf of Parent by the Chief Executive
Officer or Chief Financial Officer of Parent to that effect.
(b) Performance of Parent's Obligations. Parent shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or before the Effective Time; and
the Company shall have received a certificate, dated the Closing Date,
signed on behalf of Parent by the Chief Executive Officer or Chief
Financial Officer of Parent to that effect.
7.03 Conditions to Parent's Obligation. Parent's obligation to consummate
the Merger is also subject to the fulfillment, or written waiver by Parent,
before the Effective Time of each of the following conditions:
(a) The Company's Representations and Warranties. The
representations and warranties of the Company in this Agreement shall be
true and correct as of the date of this Agreement and as of the Closing
Date as though made on and as of such date (except to the extent such
representations and warranties speak as of an earlier date, in which case
such representations and warranties shall be true and correct as of such
date) without regard to the standard set forth in Section 5.02 of this
Agreement, except where the aggregate effect of all such failures to be
true and correct would not have a Material Adverse Effect on the Company;
and Parent shall have received a certificate, dated the Closing Date,
signed on behalf of the Company by the Chief Executive Officer or Chief
Financial Officer of the Company to that effect.
(b) Performance of the Company's Obligations. The Company shall
have performed in all material respects all obligations required to be
performed by it under this Agreement at or before the Effective Time; and
Parent shall have received a certificate, dated the Closing Date, signed
on behalf of the Company by the Chief Executive Officer or Chief Financial
Officer of the Company to that effect.
(c) Governmental Consent. Any approval or consent of any
Governmental Authority which is necessary for the Transactions to be consummated
in accordance with the terms of the Agreement, or any relevant statutory,
regulatory or other governmental waiting periods, whether domestic, foreign or
supranational, shall have been obtained or be in full force and effect or shall
have expired, except as would not be material and adverse to the Company and its
Subsidiaries taken as a whole.
(d) No Material Adverse Change. No event, change, effect,
condition, fact or circumstance shall have occurred following the date of this
Agreement that, individually or in the aggregate, constitutes or would
constitute a Material Adverse Change.
(e) No U.S. Governmental Litigation. There shall not have been
instituted or be pending any action, proceeding, application, claim or
counterclaim by any United States Federal Governmental Authority seeking to
restrain or prohibit the consummation of the Merger.
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ARTICLE VIII
TERMINATION
8.01 Termination. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time for any reason provided in
paragraphs (a) through (f) below.
(a) By mutual written consent of each of Parent and the Company,
notwithstanding any approval and adoption of this Agreement by the
shareholders of the Company.
(b) By either Parent or the Company if any Governmental Authority
shall have enacted, issued, promulgated, enforced or entered any
injunction, order, decree or ruling (whether temporary, preliminary or
permanent) which has become final and nonappealable and has the effect of
making consummation of the Merger illegal or otherwise preventing or
prohibiting consummation of the Merger; provided that the party seeking to
terminate this Agreement shall have used its reasonable best efforts to
remove or lift such injunction, order, decree or ruling.
(c) By either Parent or the Company (provided that the terminating
party is not then in material breach of any representation, warranty,
covenant or other agreement contained herein) if there shall have been a
breach of any of the covenants or agreements or any of the representations
or warranties set forth in this Agreement on the part of the other party
such that if the non-breaching party is Merger Sub, Merger Sub would be
entitled to not consummate the Merger pursuant to Section 7.02 (a) or (b)
or if the non-breaching party is the Company, the Company would be
entitled to not consummate the Merger pursuant to Section 7.03 (a) or (b),
which breach has not been cured within the 20 days following written
notice to the breaching party except for any breach which, by its nature
or timing, cannot be cured.
(d) By Parent or the Company if the Effective Time has not
occurred by the close of business on November 27, 2006 (the "Termination
Date"), provided, however, that the right to terminate this Agreement
under this Section 8.01(d) shall not be available to any party to the
extent that such party's failure to comply with any provision of this
Agreement, including without limitation Section 6.01, has resulted in the
failure of any of the conditions set forth in Article VII hereto.
(e) By the Company if (i) the Company Board approves or
recommends, or the Company enters into, a definitive agreement providing
for an Acquisition Proposal, or (ii) the Company Board makes a Company
Board Change of Recommendation, in each case only to the extent the
Company has acted in accordance with, and has otherwise complied with the
terms of, Section 6.06(b).
(f) By Parent if: (i) the Company violates in any material respect
any of the provisions of Section 6.06 to the material detriment of Parent;
(ii) the Company Board
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recommends to the Company's shareholders any Acquisition Proposal or
Superior Proposal; (iii) the Company enters into a definitive agreement
providing for any Acquisition Proposal or Superior Proposal; or (iv) the
Company Board or any committee thereof shall withdraw the approval of the
Merger or this Agreement or effect a Company Board Change of
Recommendation, or shall have approved and/or recommended, as applicable,
an Acquisition Proposal.
8.02 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 8.01, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto or any of its
affiliates, directors, officers or stockholders or shareholders except that the
Company or Parent may have liability or obligations as set forth in Section 8.03
and as set forth in or contemplated by Section 8.01 hereof. Notwithstanding the
foregoing, nothing herein shall relieve the Company or Parent from liability for
any willful breach hereof or willful misrepresentation herein.
8.03 Expenses.
(a) Except as otherwise specifically provided herein, all costs
and expenses incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such expenses, whether
or not the Merger is consummated.
(b) In the event that this Agreement is terminated by (i) the
Company pursuant to Section 8.01(e), (ii) the Parent pursuant to Section
8.01(f), (iii) the Parent pursuant to Section 8.01(c), or (iv) the Company
or the Parent pursuant to Section 8.01(d) by reason of Section 7.01(a) not
having been satisfied and in the case of such a termination pursuant to
Section 8.01(c) or 8.01(e), (A) after the date of this Agreement and prior
to in the case of clause (iii), the applicable breach giving rise to such
termination right or in the case of clause (iv) the applicable
Shareholders' Meeting, an Acquisition Proposal shall have been publicly
announced or otherwise publicly communicated to the shareholders of the
Company generally and in each case not withdrawn and (B) prior to the six
month anniversary of such termination, (i) the Company shall enter into a
definitive agreement with respect to such Acquisition Proposal or (ii)
such Acquisition Proposal is consummated, then in the case of clauses (i)
or (ii) of this Section 8.03(b) the Company shall not later than one
Business Day following such termination, pay to Parent in immediately
available funds an amount equal to $37,340,000 (the "Termination Fee")
and, in the case of clause (iv) of this Section 8.03(b) the Company shall
pay to Parent in immediately available funds an amount equal to (x) in the
case of clause (iii), the Termination Fee, or (y) in the case of clause
(iv), the reasonable expenses actually incurred by Parent and Merger Sub
in connection with the negotiation, preparation, execution and performance
of this Agreement, in the cases of clauses (x) and (y), if and in the
event of the consummation of such Acquisition Proposal no later than one
Business Day following the consummation of such Acquisition Proposal. The
Company acknowledges that the agreements contained in this Section 8.03(b)
are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, the Parent and the Merger Sub would
not enter into this Agreement; accordingly, if the Company fails to pay
the amount due pursuant to this Section 8.03(b), and, in order to obtain
such payment, the Parent or the
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Merger Sub commences a suit which results in a judgment against the
Company for the fee set forth in this Section 8.03(b), the Company shall
pay to the Parent or the Merger Sub, as the case may be, its costs and
expenses (including attorneys' fees and expenses) in connection with such
suit, together with interest on the amount of the fee at the prime rate in
effect on the date such payment was required to be made. The Company shall
pay such amount to Parent by wire transfer of same day funds to an account
designated by Parent.
ARTICLE IX
MISCELLANEOUS
9.01 Survival. The representations, warranties, agreements and covenants
contained in this Agreement will not survive the Effective Time (other than
Sections 2.04, 2.05, 2.06, 3.01 3.02, 3.03, 3.04, 6.09 and 6.10 and this Article
IX).
9.02 Waiver; Amendment. At any time prior to the Effective Time, any
provision of this Agreement may be (a) waived by the party benefited by the
provision, but only in writing, or (b) amended or modified at any time, but only
by a written agreement executed in the same manner as this Agreement, except to
the extent that any such amendment would violate applicable law or require
submission or resubmission of this Agreement or the Plan of Merger contained
herein to the shareholders of the Company.
9.03 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to constitute an original.
9.04 Governing Law; Jurisdiction; Venue. This Agreement is governed by,
and will be interpreted in accordance with, the laws of the State of Texas
applicable to contracts made and to be performed entirely within that State.
Each of Parent, Merger Sub, and the Company hereby irrevocably and
unconditionally; (i) consents to submit to the exclusive jurisdiction of the
state and federal courts located in the State of Texas ("Texas Courts") for any
litigation arising out of or relating to this Agreement and the Transactions
(and agrees not to commence any litigation relating thereto except in such
courts), (ii) waives any objection to the laying of venue of any such litigation
in the Texas Courts, and (iii) agrees not to plead or claim in any Texas Court
that such litigation brought therein has been brought in any inconvenient forum.
9.05 Notices. All notices, requests and other communications given or
made under this Agreement must be in writing and will be deemed given when
personally delivered, facsimile transmitted (with confirmation) or mailed by
registered or certified mail (return receipt requested) to the persons and
addresses set forth below or such other place as such party may specify by
notice.
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If to the Company, to:
Xxxxxxx & Xxxxxxxxx Services, Inc.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxx Still
Fulbright & Xxxxxxxx L.L.P.
Fulbright Tower
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
If to Parent or Merger Sub, to:
Armor Holdings, Inc.
00000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxx Xxxxxxx, P.C.
1350 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: 000-000-0000
9.06 Entire Understanding; No Third Party Beneficiaries. This Agreement
represents the entire understanding of Parent and the Company regarding the
Transactions and supersedes any and all other oral or written Agreements
previously made or purported to be made, other than the Confidentiality
Agreement. No representation, warranty, inducement, promise, understanding or
condition not set forth in this Agreement has been made or relied on by any
party in entering into this Agreement. Except for Article II, and Section 6.09,
which is intended to benefit the Indemnified Parties, and Section 6.10, which is
intended to benefit Covered Employees and others, nothing expressed or implied
in this Agreement is intended to confer any rights, remedies, obligations or
liabilities upon any person other than Parent and the Company.
9.07 Severability. If any provision of this Agreement or the application
thereof to any person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions, or
the application of such provision to persons or circumstances other than those
as to which it has been held invalid or unenforceable, will remain
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in full force and effect and will in no way be affected, impaired or invalidated
thereby, so long as the economic or legal substance of the Transactions is not
affected in any manner materially adverse to any party. Upon any such
determination, the parties will negotiate in good faith in an effort to agree
upon a suitable and equitable substitute provision to effect the original intent
of the parties.
9.08 Assignment; Successors. No party may assign either this Agreement or
any of its rights or interests, or delegate any of its duties hereunder, in
whole or in part, without the prior written consent of the other parties. Any
attempt to make any such assignment without such consent shall be null and void.
Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of and be enforceable by, the parties and their respective
successors and permitted assigns.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
PARENT:
ARMOR HOLDINGS, INC.
By: /s/Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------
Title: Corporate Controller,
Secretary and Treasurer
MERGER SUB:
XXXXXXX ACQUISITION CORP.
By: /s/Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------
Title: Vice-President and Secretary
COMPANY:
XXXXXXX & XXXXXXXXX SERVICES, INC.
By:/s/ L. Xxxxx Xxxx
---------------------------------
Name: L. Xxxxx Xxxx
-------------------------------
Title: Chief Financial Officer
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