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EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXXXXXX B.V.,
PLATFORM PURCHASER INC., VEDIOR N.V.,
SELECT APPOINTMENTS NORTH AMERICA INC.
AND
ACSYS, INC.
DATED AS OF APRIL 16, 2000
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TABLE OF CONTENTS
Page
Preamble................................................................................................ 1
Article 1 -- The Offer.................................................................................. 1
1.1 The Offer.................................................................................. 1
1.2 Platform Actions........................................................................... 3
Article 2 -- The Merger................................................................................. 5
2.1 Merger..................................................................................... 5
2.2 Effective Time............................................................................. 5
2.3 Time and Place of Closing.................................................................. 5
2.4 Articles of Incorporation and Bylaws....................................................... 5
2.5 Directors.................................................................................. 6
2.6 Officers................................................................................... 6
Article 3 -- Manner of Converting Shares in the Merger.................................................. 6
3.1 Conversion of Shares....................................................................... 6
3.2 Shares Held by Platform or Parent.......................................................... 6
3.3 Dissenting Shareholders.................................................................... 6
3.4 Exchange Procedures........................................................................ 7
3.5 Rights of Former Platform Shareholders..................................................... 8
3.6 Payment in Respect of Equity Rights........................................................ 9
3.7 Adjustments................................................................................ 10
Article 4 -- Representations and Warranties of Platform................................................. 10
4.1 Organization, Standing, and Power.......................................................... 10
4.2 Authority of Platform; No Breach By Agreement.............................................. 11
4.3 Capital Stock.............................................................................. 12
4.4 Platform Subsidiaries...................................................................... 13
4.5 SEC Filings; Financial Statements.......................................................... 14
4.6 Absence of Undisclosed Liabilities......................................................... 14
4.7 Absence of Certain Changes or Events....................................................... 15
4.8 Tax Matters................................................................................ 15
4.9 Assets..................................................................................... 16
4.10 Intellectual Property...................................................................... 17
4.11 Environmental Matters...................................................................... 17
4.12 Compliance with Laws....................................................................... 18
4.13 Labor Relations............................................................................ 18
4.14 Employee Benefit Plans..................................................................... 18
4.15 Material Contracts......................................................................... 20
4.16 Legal Proceedings.......................................................................... 20
4.17 Reports.................................................................................... 21
4.18 State Takeover Laws........................................................................ 21
4.19 Charter Provisions......................................................................... 21
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4.20 Rights Agreement........................................................................... 21
4.21 Debt....................................................................................... 22
Article 5 -- Representations and Warranties of Parent, Purchaser and the Guarantors..................... 22
5.1 Organization, Standing, and Power.......................................................... 22
5.2 Authority; No Breach By Agreement.......................................................... 22
5.3 Legal Proceedings.......................................................................... 23
5.4 Authority of Purchaser..................................................................... 23
5.5 Authority of Guarantors, No Breach by Agreement............................................ 25
5.6 Solvency of Parent, Purchaser and Guarantors............................................... 25
5.7 Financing.................................................................................. 26
Article 6 -- Conduct Of Business Pending Consummation................................................... 26
6.1 Affirmative Covenants of Platform.......................................................... 26
6.2 Negative Covenants of Platform............................................................. 26
6.3 Covenants of Parent and Purchaser.......................................................... 29
6.4 Adverse Changes in Condition............................................................... 29
6.5 Reports.................................................................................... 30
Article 7 -- Additional Agreements...................................................................... 30
7.1 Shareholders' Meeting; Proxy Statement..................................................... 30
7.2 Merger Without Meeting of Shareholders..................................................... 31
7.3 Purchaser Compliance....................................................................... 31
7.4 Applications; Antitrust Notification....................................................... 31
7.5 Filings with State Offices................................................................. 32
7.6 Agreement as to Efforts to Consummate...................................................... 32
7.7 Board of Directors of Platform............................................................. 32
7.8 Investigation and Confidentiality.......................................................... 33
7.9 Press Releases............................................................................. 34
7.10 No Solicitation; Acquisition Proposals..................................................... 34
7.11 State Takeover Laws........................................................................ 35
7.12 Employee Benefits and Contracts............................................................ 36
7.13 Indemnification............................................................................ 36
7.14 Repayment of Certain Indebtedness; Additional Financing.................................... 38
7.15 Financing and Capitalization of Parent and Purchaser....................................... 39
7.16 Availability of Funds...................................................................... 39
Article 8 -- Conditions Precedent to Obligations to Consummate.......................................... 40
8.1 Conditions to Obligations of Each Party.................................................... 40
Article 9 -- Termination................................................................................ 40
9.1 Termination................................................................................ 40
9.2 Effect of Termination...................................................................... 42
9.3 Non-Survival of Representations and Covenants.............................................. 42
Article 10 -- Miscellaneous............................................................................. 43
10.1 Definitions............................................................................... 43
10.2 Expenses.................................................................................. 51
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10.3 Brokers and Finders........................................................................ 52
10.4 Entire Agreement........................................................................... 52
10.5 Amendments................................................................................. 52
10.6 Waivers.................................................................................... 53
10.7 Assignment................................................................................. 53
10.8 Notices.................................................................................... 53
10.9 Governing Law.............................................................................. 55
10.10 Dispute Resolution......................................................................... 55
10.11 Agent for Service of Process............................................................... 56
10.12 Counterparts............................................................................... 57
10.13 Captions; Articles and Sections............................................................ 57
10.14 Interpretations............................................................................ 57
10.15 Severability............................................................................... 57
10.16 Subsidiary Guarantees...................................................................... 57
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LIST OF EXHIBITS
EXHIBIT NUMBER DESCRIPTION
1 Conditions to the Offer
2 Support Agreement dated as of April 16, 2000 between Vedior N.V., Platform
Purchaser Inc., Xxxxx X. Xxxxxx and Xxxx X. Xxxxxx
3 Support Agreement dated as of April 16, 2000 between Vedior N.V., Platform
Purchaser Inc., Xxxxx X. Xxxxx, and The Xxxxx Family Foundation
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EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of April 16, 2000, by and among Xxxxxxx B.V. ("Parent"), a
company organized in The Netherlands; Platform Purchaser Inc. ("Purchaser"), a
Georgia corporation; Vedior N.V., ("Vedior"), a company organized in The
Netherlands; Select Appointments North America Inc., a Delaware corporation
("SANA"); and Acsys, Inc. ("Platform"), a Georgia corporation.
PREAMBLE
The respective Boards of Directors of Platform, Parent and Purchaser
have each determined that it is in the best interests of their respective
shareholders for Parent, through Purchaser, to acquire Platform upon the terms
and subject to the conditions set forth herein. In addition, the governing body
of each Guarantor has determined that it is in the best interests of such
Guarantor to be bound by the guarantee contained in Section 10.16 of this
Agreement.
The Board of Directors of Platform has approved the terms of the
Support Agreements attached hereto as Exhibits 2 and 3 (the "Support
Agreements") to be entered into among Parent, Purchaser and certain holders of
Shares (the "Shareholders") simultaneously herewith, pursuant to which such
Shareholders have, among other things, agreed to tender their Shares pursuant to
the Offer.
Certain terms used in this Agreement are defined in Section 10.1 of
this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
THE OFFER
1.1 THE OFFER.
(a) Provided that this Agreement shall not have been
terminated in accordance with Section 9.1 hereof and satisfaction of the
conditions set forth in Exhibit 1 is possible, Purchaser shall, and Parent shall
cause Purchaser to, as promptly as practicable (but in no event later than seven
business days after the public announcement of the execution of this Agreement),
commence (within the meaning of Rule 14d-2 under the 0000 Xxx) a tender offer
(as it may be amended or extended from time to time as permitted or required by
this Agreement, the "Offer") for any and all of the outstanding shares (together
with the associated Platform Rights, the "Shares") of Platform Common Stock at a
price of $5.00 per Share, net to the seller in cash, without interest, subject
to reduction for any required applicable withholding (such price, or any such
higher price per Share as may be paid in the Offer, being referred to herein as
the "Offer
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Price"). The initial expiration date of the Offer shall be at midnight, New York
City time, on the twentieth business day (with the day the Offer is commenced
counting as the first business day) after the Offer is commenced (the initial
"Expiration Date"; and any expiration date and time established pursuant to an
authorized or required extension of the Offer as so extended, also an
"Expiration Date"). The obligation of Purchaser to, and of Parent to cause
Purchaser to, commence the Offer and accept for payment, and pay for, any Shares
tendered pursuant to the Offer shall be subject only to the satisfaction of the
conditions set forth in Exhibit 1 (any of which may be waived by Purchaser in
its sole discretion; provided, that, without the consent of Platform, Purchaser
shall not waive the Minimum Tender Condition (as defined in Exhibit 1)).
Purchaser expressly reserves the right to modify the terms of the Offer, except
that, without the consent of Platform, Purchaser shall not (i) reduce the number
of Shares subject to the Offer, (ii) reduce the price per Share to be paid
pursuant to the Offer, (iii) modify (in any manner adverse to the holders of
Shares) or add to the conditions set forth in Exhibit 1, (iv) except as provided
in the immediately following two sentences, extend the Offer, or (v) change the
form of consideration payable in the Offer. Notwithstanding the foregoing,
Purchaser may, without the consent of Platform, extend the Offer beyond the
initial Expiration Date, (x) for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the "SEC")
or the staff thereof applicable to the Offer, or (y) if all of the conditions to
the Offer are satisfied or waived but the number of the Shares validly tendered
and not withdrawn is less than ninety percent (90%) of the then outstanding
number of Shares on a fully diluted basis, for an aggregate period not to exceed
twenty (20) business days (for all such extensions); provided, that Purchaser
shall immediately accept and promptly pay for all Shares tendered prior to the
date of an extension pursuant to clause (y) and shall otherwise meet the
requirements of Rule 14d-11 under the 1934 Act in connection with each such
extension. Parent and Purchaser agree that if any of the conditions to the Offer
set forth on Exhibit 1 (other than the conditions set forth in paragraphs (b)
and (g) of Exhibit 1) are not satisfied on the initial Expiration Date or such
subsequent Expiration Dates, then if all such conditions are capable of being
satisfied prior to September 29, 2000, Purchaser shall, and Parent shall cause
Purchaser to, extend the Offer from time to time (each such individual extension
not to exceed twenty (20) business days after the previously scheduled
Expiration Date) until such conditions are satisfied or waived; provided that
Purchaser shall not be required to extend the Offer beyond, and without the
approval of the Platform Board of Directors the Offer will not be extended
beyond, September 29, 2000. Subject to the terms and conditions of the Offer and
this Agreement, Purchaser shall, and Parent shall cause Purchaser to, accept for
payment, and pay for, all Shares validly tendered and not withdrawn pursuant to
the Offer that Purchaser becomes obligated to purchase pursuant to the Offer as
soon as practicable after the expiration of the Offer. In the event that the
Offer is terminated or withdrawn by Purchaser, Parent and Purchaser shall cause
all tendered Shares to be returned to the registered holders of the
Certificate(s) surrendered to the Paying Agent.
(b) On the date of commencement of the Offer, Parent and
Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with
respect to the Offer, which shall contain an offer to purchase and a related
letter of transmittal and summary advertisement, all in accordance with the
terms of the Offer as set forth herein (such Schedule TO and the documents
included therein pursuant to which the Offer will be made, together with
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any supplements or amendments thereto, the "Offer Documents"). The Offer
Documents shall comply in all material respects with the requirements of
applicable Securities Laws and, on the date filed with the SEC and on the date
first published, sent or given to Platform's shareholders, shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that no representation is made by Parent or Purchaser with respect to
information furnished in writing by or on behalf of Platform expressly for
inclusion in the Offer Documents. Each of Parent, Purchaser and Platform agrees
promptly to correct any information provided by it or on its behalf for use in
the Offer Documents if and to the extent that such information shall have become
false or misleading in any material respect, and each of Parent and Purchaser
further agrees to take all steps necessary to amend or supplement the Offer
Documents and to cause the Offer Documents as so amended or supplemented to be
filed with the SEC and to be disseminated to Platform's shareholders, in each
case as to and to the extent required by applicable Securities Laws. Platform
and its counsel shall be given a reasonable opportunity to review and comment on
the Offer Documents before they are filed with the SEC. In addition, Parent and
Purchaser will provide Platform and its counsel, in writing, with any comments,
whether written or oral, Parent, Purchaser or their counsel may receive from
time to time from the SEC or its staff with respect to the Offer Documents
promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to
Purchaser on a timely basis the funds necessary to purchase any Shares that
Purchaser becomes obligated to purchase pursuant to the Offer.
1.2 PLATFORM ACTIONS.
(a) Platform hereby approves of and consents to the Offer
and represents and warrants that its Board of Directors, at a meeting duly
called and held, has unanimously adopted resolutions (i) approving and adopting
this Agreement and the transactions contemplated hereby, including the Offer and
the Merger, and the terms of the Support Agreements (collectively, the
"Transactions"), and that such approval and adoption constitutes approval of the
Offer, this Agreement and the Transactions, including the Merger, for purposes
of Section 14-2-1111(1) of the GBCC, and (ii) recommending, subject to the terms
and conditions set forth herein, that the shareholders of Platform accept the
Offer, tender their Shares thereunder to Purchaser and approve this Agreement
and the Merger.
(b) On the date the Offer Documents are filed with the
SEC or as soon as practicable following the filing of the Offer Documents,
Platform shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (together with all amendments and
supplements thereto and including the exhibits thereto, the "Schedule 14D-9"),
which shall contain the recommendation referred to in clause (ii) of Section
1.2(a) and shall mail the Schedule 14D-9 to the shareholders of Platform. Each
of Parent and Purchaser will promptly supply to Platform in writing, for
inclusion in the Schedule 14D-9, all information concerning Parent's Designees,
as required by Section 14(f) of the 1934 Act and Rule 14f-1 thereunder, and
Platform shall include such information in the Schedule 14D-9. The Schedule
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14D-9 shall comply in all material respects with the requirements of applicable
Securities Laws and, on the date filed with the SEC and on the date first
published, sent or given to Platform's shareholders, shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that no representation is made by Platform with respect to information furnished
in writing by or on behalf of Parent or Purchaser expressly for inclusion in the
Schedule 14D-9. Each of Parent, Purchaser and Platform agrees promptly to
correct any information provided by it or on its behalf for use in the Schedule
14D-9 if and to the extent that such information shall have become false or
misleading in any material respect, and Platform further agrees to take all
steps necessary to amend or supplement the Schedule 14D-9 and to cause the
Schedule 14D-9 as so amended or supplemented to be filed with the SEC and to be
disseminated to Platform's shareholders, in each case as to and to the extent
required by applicable Securities Laws. Parent and its counsel shall be given a
reasonable opportunity to review and comment on the Schedule 14D-9 before it is
filed with the SEC. In addition, Platform agrees to provide Parent, Purchaser
and their counsel, in writing, with any comments, whether written or oral, that
Platform or its counsel may receive from time to time from the SEC or its staff
with respect to the Schedule 14D-9 promptly after the receipt of such comments
or other communications.
(c) In connection with the Offer, Platform will promptly
furnish or cause to be furnished to Purchaser mailing labels, security position
listings and any available listing, or computer file containing the names and
addresses of all record holders of the Shares as of a recent date, and shall
furnish Purchaser with such additional information (including, but not limited
to, updated lists of holders of the Shares and their addresses, mailing labels
and lists of security positions) and assistance as the Purchaser or its agents
may reasonably request in communicating the Offer to the record and beneficial
holders of the Shares. Subject to the requirements of applicable Law, and except
for such steps as are necessary to disseminate the Offer Documents and any other
documents necessary to consummate the Merger, Parent and Purchaser shall, and
shall use commercially reasonable efforts to cause each of its Affiliates and
Representatives to, hold in confidence the information contained in any of such
labels and lists and the additional information referred to in the preceding
sentence, use such information only in connection with the Offer and the Merger,
and, if this Agreement is terminated, promptly deliver or cause to be delivered
to Platform all copies of such information then in their possession or under
their control and certify in writing to Platform its compliance with this
Section 1.2(c).
ARTICLE 2
THE MERGER
2.1 MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time, Purchaser shall be merged with and into Platform in
accordance with the provisions of Article 11, Part 1, of the GBCC and with the
effect provided therein (the "Merger"). Platform shall be the Surviving
Corporation resulting from the Merger and shall become a wholly owned Subsidiary
of Parent and shall continue to be governed by the Laws of the State of Georgia.
The Merger shall be consummated pursuant to the terms of this Agreement, which
has been adopted by the respective Boards of Directors or governing bodies of
Platform,
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Purchaser and Parent and approved by Vedior and Parent, as the sole shareholders
(whether currently or in the future) of Purchaser.
2.2 EFFECTIVE TIME. The Merger and other transactions contemplated
by this Agreement shall become effective on the date and at the time the
Certificate of Merger reflecting the Merger shall become effective with the
Secretary of State of the State of Georgia (the "Effective Time"). Subject to
the terms and conditions hereof, unless otherwise mutually agreed upon in
writing by the authorized officers of each Party, the Parties shall use their
reasonable efforts to cause the Effective Time to occur on or prior to the first
business day (unless a greater delay is required by applicable Law) following
the date on which the shareholders of Platform shall have approved this
Agreement or the purchase by Purchaser of 90% or more of the outstanding Shares
pursuant to the Offer (to the extent that Section 14-2-1104 of the GBCC is
available).
2.3 TIME AND PLACE OF CLOSING. The closing of the Transactions
(the "Closing") will take place at 9:00 A.M. on the date that the Effective Time
occurs (or the immediately preceding day if the Effective Time is earlier than
9:00 A.M.), or at such other time as the Parties, acting through their
authorized officers, may mutually agree. The Closing shall be held at such
location as may be mutually agreed upon by the Parties.
2.4 ARTICLES OF INCORPORATION AND BYLAWS.
(a) At the Effective Time, the articles of incorporation
of the Surviving Corporation shall be amended in their entirety to become the
same as the articles of incorporation of Purchaser, as in effect immediately
before the Effective Time, until thereafter amended as provided by law and such
articles of incorporation.
(b) The bylaws of Purchaser in effect immediately prior
to the Effective Time shall be the bylaws of the Surviving Corporation until
duly amended or repealed.
2.5 DIRECTORS. The directors of Purchaser in office immediately
prior to the Effective Time, together with such additional persons as may
thereafter be elected, shall serve as the initial directors of the Surviving
Corporation to hold office in accordance with the certificate of incorporation
and bylaws of the Surviving Corporation until such director's successor is duly
elected and qualified.
2.6 OFFICERS. The officers of Platform in office immediately prior
to the Effective Time, together with such additional persons as may thereafter
be elected, shall serve as the initial officers of the Surviving Corporation
until such officer's successor is duly elected and qualified.
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ARTICLE 3
MANNER OF CONVERTING SHARES IN THE MERGER
3.1 CONVERSION OF SHARES. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any action
on the part of Parent, Platform, Purchaser or the shareholders of any of the
foregoing, the shares of the constituent corporations shall be converted as
follows:
(a) each share of Purchaser Common Stock issued and
outstanding immediately prior to the Effective Time shall cease to be
outstanding and shall be converted into one validly issued, fully paid and
nonassessable share of common stock of the Surviving Corporation; and
(b) each Share (excluding Shares held by any Platform
Entity, any Parent Entity or Vedior, and excluding Shares held by shareholders
who perfect their statutory dissenters' rights as provided in Article 13 of the
GBCC) issued and outstanding immediately prior to the Effective Time shall cease
to be outstanding and shall be converted into and exchanged for the right to
receive from Parent a cash payment equal to the Offer Price (the "Merger
Consideration").
3.2 SHARES HELD BY PLATFORM OR PARENT. Each of the Shares held by
any Platform Entity, any Parent Entity or Vedior shall, by virtue of the Merger,
cease to be outstanding and will be canceled and retired at the Effective Time
and no consideration shall be issued in exchange therefor.
3.3 DISSENTING SHAREHOLDERS. Any holder of Shares who perfects his
dissenters' rights in accordance with and as contemplated by Article 13 of the
GBCC shall be entitled to receive the value of such Shares in cash as determined
pursuant to such Article 13; provided, that no such payment shall be made to any
dissenting shareholder unless and until such dissenting shareholder has complied
with the applicable provisions of the GBCC and surrendered to Platform the
Certificate(s) representing the Shares for which payment is being made. In the
event that after the Effective Time a dissenting shareholder of Platform fails
to perfect, or effectively withdraws or loses, his right to appraisal and of
payment for his Shares, Parent shall issue and deliver the consideration to
which such holder of Shares is entitled under this Article 3 (without interest)
upon surrender by such holder of the Certificate(s) held by him. Platform shall
give Parent (i) prompt notice of any written notice of intent to seek
dissenters' rights received by Platform and (ii) the opportunity to direct all
negotiations and proceedings with respect to any such notices. Unless required
by law, Platform shall not, without prior written consent of Parent (which shall
not be unreasonably withheld), make any payment with respect to, or settle,
offer to settle or otherwise negotiate, any such demands.
3.4 EXCHANGE PROCEDURES.
(a) Prior to the Effective Time, Parent shall select a
bank or trust company, which shall be reasonably satisfactory to Platform, to
act as paying agent (the "Paying
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Agent") to receive the funds necessary to make the payment of the Merger
Consideration upon surrender of certificates which represented Shares
immediately prior to the Effective Time (the "Certificates"). Parent shall, from
time to time, make available, or cause to be made available, to the Paying
Agent, for the benefit of the holders of Shares, cash in an amount sufficient
and at a time necessary for the payments under Section 3.4(b) to which holders
of Shares shall be entitled upon presentation of their Shares.
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause the Paying Agent to mail to each holder of record of a
Certificate appropriate transmittal materials and instructions (which shall
specify that delivery shall be effected, and risk of loss and title to such
Certificates shall pass, only upon proper delivery of such Certificates to the
Paying Agent). The Certificates so delivered shall be duly endorsed as the
Paying Agent may require. In the event of a transfer of ownership of Shares
represented by Certificates that are not registered in the transfer records of
Platform, the consideration provided in Section 3.1 may be issued to a
transferee if the Certificates representing such Shares are delivered to the
Paying Agent, accompanied by all documents required to evidence such transfer.
If any Certificates shall have been lost, stolen, mislaid or destroyed, upon
receipt of (i) an affidavit of that fact from the holder of record claiming such
Certificates to be lost, mislaid, stolen or destroyed, (ii) such bond, security
or indemnity as Parent and the Paying Agent may reasonably require and (iii) any
other documents necessary to evidence and effect the bona fide exchange thereof,
the Paying Agent shall issue to such holder the consideration into which the
Shares represented by such lost, stolen, mislaid or destroyed Certificates shall
have been converted. The Paying Agent may establish such other reasonable and
customary rules and procedures in connection with its duties as it may deem
appropriate. After the Effective Time, each holder of Shares (other than Shares
to be canceled pursuant to Section 3.2 or as to which statutory dissenters'
rights have been perfected as provided in Section 3.3) issued and outstanding at
the Effective Time shall surrender the Certificates formerly representing such
Shares to the Paying Agent and shall promptly upon surrender thereof receive in
exchange therefor the consideration provided in Section 3.1, together with all
undelivered dividends or distributions in respect of such Shares (without
interest thereon) pursuant to Section 3.5. Parent shall not be obligated to
deliver the consideration to which any former holder of Certificate(s) is
entitled as a result of the Merger until such holder surrenders such holder's
Certificate or Certificates for exchange as provided in this Section 3.4.
(c) Any other provision of this Agreement
notwithstanding, neither Parent, the Surviving Corporation nor the Paying Agent
shall be liable to a holder of Platform Common Stock for any amounts paid or
property delivered in good faith to a public official pursuant to any applicable
abandoned property, escheat or similar Law. If any Certificates shall not have
been surrendered prior to seven years after the Effective Time, (or immediately
prior to such earlier date on which payment pursuant to this Article 3 would
otherwise escheat to or become the property of any governmental entity) the
payment in respect of such Certificate shall, to the extent permitted by
applicable Law, become the property of the Surviving Corporation, free and clear
of all claims or interest of any Person previously entitled thereto.
(d) The Paying Agent shall invest the funds deposited
with it, as directed by Parent, in (i) direct obligations of the United States
of America, (ii) obligations for
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which the full faith and credit of the United States of America is pledged to
provide for the payment of principal and interest, (iii) commercial paper rated
the highest quality by either Xxxxx'x Investors Services, Inc. or Standard &
Poor's Corporation, or (iv) certificates of deposit, bank repurchase agreements
or bankers' acceptances of commercial banks with capital exceeding $500 million.
Any net earnings with respect to the funds deposited with the Paying Agent shall
be the property of and paid over to Parent as and when requested by Parent.
(e) Any portion of the cash which remains undistributed
to the holders of Certificates for six months after the Effective Time shall be
delivered to Parent together with any Certificates and other documents in the
Paying Agent's possession, upon demand, and any holders of Certificates that
have not theretofore complied with this Section 3.4 shall thereafter only look
to Parent, and only as general creditors thereof, for payment of their claim for
any Merger Consideration.
(f) Parent, Purchaser or the Surviving Corporation, as
the case may be, shall be entitled to deduct and withhold from the consideration
otherwise payable to any holder of Platform Common Stock pursuant to this
Agreement such amounts as may be required to be deducted and withheld with
respect to the making of such payment under the Internal Revenue Code or under
any provision of state or local Tax Law.
3.5 RIGHTS OF FORMER PLATFORM SHAREHOLDERS. At the Effective Time,
the stock transfer books of Platform shall be closed as to holders of Platform
Common Stock immediately prior to the Effective Time and no transfer of Platform
Common Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 3.4, each
Certificate (other than Shares to be canceled pursuant to Section 3.2 or to
which statutory dissenters' rights have been perfected as provided in Section
3.3) shall from and after the Effective Time represent for all purposes only the
right to receive the consideration provided in Section 3.1 in exchange therefor,
subject, however, to the Surviving Corporation's obligation to pay any dividends
or make any other distributions with a record date prior to the Effective Time
which have been declared or made by Platform in respect of such Shares of
Platform Common Stock in accordance with the terms of this Agreement and which
remain unpaid at the Effective Time. However, upon surrender of such
Certificate, any undelivered dividends and cash payments payable hereunder
(without interest) shall be delivered and paid with respect to each Share
formerly represented by such Certificate.
3.6 PAYMENT IN RESPECT OF EQUITY RIGHTS. This Section 3.6 shall
apply to each option to purchase Shares (or any other capital stock of any
Platform Entity) granted pursuant to the Platform Stock Plans or otherwise
granted by any Platform Entity and outstanding and unexercised immediately prior
to the Effective Time (a "Platform Option").
(a) Prior to the initial consummation of the Offer (or in
the case of Platform Options granted after such time, the Effective Time),
Parent and Purchaser shall offer to each holder of a vested Platform Option that
has an exercise price of less than the Offer Price ("Vested In The Money
Platform Option") the right to receive in exchange for each such option an
amount in cash, payable in a lump sum promptly following the initial
consummation of the
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Offer, equal to the excess of (i) the Offer Price multiplied by the number of
Shares subject to such Vested In The Money Platform Option over (ii) the
exercise price of such Vested In The Money Platform Option multiplied by the
number of Shares subject to such Vested In The Money Platform Option. For
purposes of this Section 3.6(a), the determination of whether a Platform Option
is vested or not shall be made immediately prior to the initial consummation of
the Offer.
(b) Prior to the initial consummation of the Offer (or in
the case of Platform Options granted after such time, the Effective Time),
Parent and Purchaser shall offer to each holder of a vested Platform Option that
has an exercise price that is equal to or exceeds the Offer Price and to each
holder of an unvested Platform Option, irrespective of the exercise price
thereof, the right to receive in exchange for each such option an amount equal
to one dollar (U.S. $1.00) multiplied by the number of Shares subject to such
option (the "Option Payment"). Fifty percent (50%) of the Option Payment shall
be paid to the former holder of such option promptly following the initial
consummation of the Offer (or in the case of Platform Options granted after such
time, the Effective Time), except that if the optionholder is not and has not
been an employee of a Platform Entity, then 100% of the Option Payment amount
shall be made promptly following the initial consummation of the Offer (or in
the case of Platform Options granted after such time, the Effective Time). The
balance of the Option Payment shall be paid to the former holder of such option
on the second anniversary of the initial consummation of the Offer (the "Second
Installment Date"); provided that the former holder is then employed by a
Platform Entity or an Affiliate of Vedior. If the former holder's employment
with the Platform Entities or Affiliates of Vedior, as the case may be, is
terminated prior to the Second Installment Date, his or her right to receive the
second installment of the Option Payment shall be forfeited as of the date of
such termination of employment.
(c) Any amounts otherwise payable under this Section 3.6
shall be subject to any income or employment tax withholding required under the
Internal Revenue Code or any provision of state or local Law.
(d) Platform shall use its reasonable best efforts to
secure from each holder of each Platform Option, prior to the initial
consummation of the Offer, a consent or other legally binding writing which
provides that, in consideration for the payments to be made pursuant to this
Section 3.6, such holder shall waive any rights the holder may have with respect
to any Platform Option. Failure of any holder of a Platform Option to accept the
offers described in this Section 3.6 shall in no way affect the timing of the
consummation of the Offer or the completion of the Merger or the obligations of
the Parties hereto with respect to the Offer and the Merger.
3.7 ADJUSTMENTS. If, during the period between the date of this
Agreement and the Effective Time , any change in the outstanding Shares of
Platform Common Stock shall occur, including by reason of any reclassification,
recapitalization, stock split or combination, exchange or readjustment of
Shares, or stock dividend thereon, in any of these cases with a record date
during such period, the cash payable pursuant to the Offer, the Merger
Consideration and any other amounts payable pursuant to this Agreement shall be
appropriately adjusted.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PLATFORM
Platform hereby represents and warrants to Parent as follows:
4.1 ORGANIZATION, STANDING AND POWER.
(a) Platform is a corporation validly existing and in
good standing under the Laws of the State of Georgia, and has the corporate
power and authority to carry on its business as now conducted and to own, lease
and operate its material Assets. Platform is duly qualified or licensed to
transact business as a foreign corporation in good standing in the States of the
United States and foreign jurisdictions where the character of its Assets owned,
leased or operated or the nature or conduct of its business requires it to be so
qualified or licensed, except for such failures which, individually or in the
aggregate, are not reasonably likely to have, individually or in the aggregate,
a Platform Material Adverse Effect.
(b) Platform has heretofore furnished to Parent a
complete and correct copy of the Amended and Restated Articles of Incorporation
(the "Platform Articles of Incorporation") and the Bylaws (the "Platform
Bylaws") of Platform as currently in effect. No other similar organizational
documents are applicable to or binding upon Platform. Platform is not in
violation of any of the provisions of the Platform Articles of Incorporation or
the Platform Bylaws, and the Platform Bylaws do not make applicable to Platform
the requirements set forth in Part 3, Article 11 of the GBCC.
4.2 AUTHORITY OF PLATFORM; NO BREACH BY AGREEMENT.
(a) Platform has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this Agreement
and to consummate the Transactions. The execution, delivery, and performance of
this Agreement and the consummation of the Transactions have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of Platform, subject to the approval of this Agreement by the holders of
the outstanding shares of Platform Common Stock, as and to the extent required
by Law. Subject to such requisite shareholder approval, this Agreement
represents a legal, valid, and binding obligation of Platform, enforceable
against Platform in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding may
be brought).
(b) The affirmative vote of the holders of a majority of
the shares of Platform Common Stock entitled to vote approving this Agreement is
the only vote of the holders of any class or series of the Platform's capital
stock necessary to approve this Agreement
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and the Merger; provided, however, that no such vote shall be required if the
Merger is subject to Section 14-2-1104 of the GBCC.
(c) At a Board of Director's meeting duly called and held
on April 16, 2000, the Board of Directors resolved to adopt this Agreement and
the Transactions and to recommend the approval of this Agreement and the
Transactions by the shareholders of Platform.
(d) Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
has delivered to the Board of Directors its written opinion, dated prior to or
as of the date of this Agreement, that based on the assumptions, qualifications
and limitations contained therein, the Offer Price or Merger Consideration to be
received by Platform's shareholders in the Offer and the Merger, respectively,
is fair from a financial point of view to such shareholders. Platform has
provided a copy of such opinion to Parent.
(e) Neither the execution and delivery of this Agreement
by Platform, nor the consummation by Platform of the Transactions, nor
compliance by Platform with any of the provisions hereof, will (i) conflict with
or result in a breach of any provision of the Platform Articles of Incorporation
or the Platform Bylaws or the certificate or articles of incorporation or bylaws
of any Platform Subsidiary or any resolution adopted by the board of directors
or the shareholders of any Platform Entity, or (ii) except as disclosed in
Section 4.2 of the Platform Disclosure Memorandum, constitute or result in a
Default under, or require any Consent pursuant to, or result in the creation of
any Lien on any Asset of any Platform Entity under, any Contract or Permit of
any Platform Entity, where such Default or Lien, or any failure to obtain such
Consent, is reasonably likely to have, individually or in the aggregate, a
Platform Material Adverse Effect, or, (iii) subject to the early termination or
expiration of the waiting period under the HSR Act and receipt of the requisite
Consents referred to in Section 4.2(f), constitute or result in a Default under,
or require any Consent pursuant to, any Law or Order applicable to any Platform
Entity or any of their respective material Assets where such Default, or any
failure to obtain such Consent is reasonably likely to have, individually or in
the aggregate a Platform Material Adverse Effect.
(f) No notice to, filing with, or Consent of, any public
body or authority is necessary for the consummation by Platform of the
Transactions other than (i) in connection or compliance with the provisions of
the Securities Laws, applicable state corporate and securities Laws, and rules
of the American Stock Exchange, (ii) Consents required from Regulatory
Authorities, (iii) notices to or filings under the HSR Act, and (iv) Consents,
filings, or notifications which, if not obtained or made, are not reasonably
likely to have, individually or in the aggregate, a Platform Material Adverse
Effect.
4.3 CAPITAL STOCK.
(a) The authorized capital stock of Platform consists of
(i) 45,000,000 shares of Platform Common Stock, no par value per share, of which
14,499,400 shares are issued and outstanding as of the date of this Agreement
and not more than 16,836,411 shares will be
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issued and outstanding at the Effective Time (with the difference between (A)
the number of shares outstanding as of the date of this Agreement or as may be
outstanding as a result of the future grants of Platform Options as set forth on
Section 6.2 of the Platform Disclosure Memorandum and (B) the number of shares
outstanding of the Effective Time, being solely attributable to the exercise of
Platform Options), and (ii) 5,000,000 shares of preferred stock, no par value
per share, none of which are issued and outstanding, but 500,000 of which are
designated Series A Junior Participating Preferred Stock. All of the issued and
outstanding shares of capital stock of Platform are duly authorized, validly
issued and outstanding and are fully paid and nonassessable under the GBCC, free
of pre-emptive rights and were issued in compliance with all applicable Laws
except where failure to be in compliance would not have a Platform Material
Adverse Effect.
(b) Except as set forth in Section 4.3(a), or as provided
pursuant to the Platform Rights Agreement, or as disclosed in Section 4.3 of the
Platform Disclosure Memorandum, there are no shares of capital stock or other
equity securities of Platform outstanding and no outstanding Equity Rights
relating to the capital stock of Platform.
(c) Neither Platform nor any of the Platform Subsidiaries
has outstanding bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the shareholders of Platform or such
Subsidiary on any matter. Any equity securities, which were issued and
reacquired by Platform or any of the Platform Subsidiaries, were so reacquired
in compliance with all applicable Laws, and neither Platform nor any of the
Platform Subsidiaries has any obligation or liability with respect thereto.
(d) Except as set forth in Section 4.3 of the Platform
Disclosure Memorandum, there are no shareholders agreements, voting trusts or
other agreements or understandings to which Platform or any Platform Subsidiary
is a party or by which it is bound relating to the issued or unissued capital
stock of Platform (including any such agreements or understandings that may
limit in any way the solicitation of proxies by or on behalf of Platform from,
or the casting of votes by, the shareholders of Platform with respect to the
Merger) or granting to any person or group of persons the right to elect, or to
designate or nominate for election, a director to the Board of Directors.
4.4 PLATFORM SUBSIDIARIES. Except as disclosed in Section 4.4 of
the Platform Disclosure Memorandum, Platform or one of its Subsidiaries owns all
of the issued and outstanding shares of capital stock (or other equity
interests) of each Platform Subsidiary. Except as disclosed in Section 4.4 of
the Platform Disclosure Memorandum, no capital stock (or other equity interest)
of any Platform Subsidiary is or may become required to be issued (other than to
another Platform Entity) by reason of any Equity Rights, and there are no
Contracts by which any Platform Subsidiary is bound to issue (other than to
another Platform Entity) additional shares of its capital stock (or other equity
interests) or Equity Rights or by which any Platform Entity is or may be bound
to transfer any shares of the capital stock (or other equity interests) of any
Platform Subsidiary (other than to another Platform Entity). Except as disclosed
in Section 4.4 of the Platform Disclosure Memorandum, there are no Contracts
relating to the
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rights of any Platform Entity to vote or to dispose of any shares of the capital
stock (or other equity interests) of any Platform Subsidiary. Except as
disclosed in Section 4.4 of the Platform Disclosure Memorandum, all of the
shares of capital stock (or other equity interests) of each Platform Subsidiary
held by a Platform Entity are duly authorized, validly issued and outstanding
and are fully paid, nonassessable, free of pre-emptive rights and were issued in
compliance with the applicable corporation Law of the jurisdiction in which such
Subsidiary is incorporated and are owned by a Platform Entity free and clear of
any Lien. Each Platform Subsidiary is a corporation, and each such Subsidiary is
validly existing and in good standing under the Laws of the jurisdiction in
which it is incorporated, has the corporate power and authority necessary for it
to own, lease, and operate its material Assets and to carry on its business as
now conducted, and is duly qualified or licensed to transact business as a
foreign corporation in good standing in the States of the United States and
foreign jurisdictions where the character of its Assets or the nature or conduct
of its business requires it to be so qualified or licensed, except for such
failures which, individually or in the aggregate, are not reasonably likely to
have, individually or in the aggregate, a Platform Material Adverse Effect. The
copies of the organizational and charter documents for the Platform Subsidiaries
made available to Parent are true and correct as of the date hereof. Section 4.4
of the Platform Disclosure Memorandum lists all of the Platform Subsidiaries and
correctly sets forth the percentage of Platform's ownership of each Platform
Subsidiary, the jurisdiction in which each Platform Subsidiary is organized or
formed, and the current directors and executive officers of each Platform
Subsidiary.
4.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Except as disclosed in Section 4.5 of the Platform
Disclosure Memorandum, Platform has timely filed and made available to Parent
all SEC Documents required to be filed by Platform since February 4, 1998 (the
"Platform SEC Reports"). The Platform SEC Reports (i) at the time filed,
complied in all material respects with the applicable requirements of the
Securities Laws and other applicable Laws and (ii) did not, at the time they
were filed (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
Platform SEC Reports or necessary in order to make the statements in such
Platform SEC Reports, in light of the circumstances under which they were made,
not misleading; provided, that any pro forma financial statements contained in
the Platform SEC Reports are not necessarily indicative of the consolidated
financial position of the Platform Entities as of the respective dates thereof
and the consolidated results of operations and cash flows of the Platform
Entities for the periods indicated. No Platform Subsidiary is required to file
any SEC Documents.
(b) Each of the Platform Financial Statements (including,
in each case, any related notes) contained in the Platform SEC Reports,
including any Platform SEC Reports filed after the date of this Agreement until
the Effective Time, complied as to form in all material respects with the
applicable published rules and regulations of the SEC with respect thereto, was
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited interim statements, as permitted by Form
10-Q of the SEC), and fairly presented in all material
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respects the consolidated financial position of Platform and its Subsidiaries as
at the respective dates and the consolidated results of operations and cash
flows for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount or effect and that
any pro forma financial statements contained in the Platform SEC Reports are not
necessarily indicative of the consolidated financial position of the Platform
Entities as of the respective dates thereof and the consolidated results of
operations and cash flows of the Platform Entities for the periods indicated.
4.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Platform Entity has any
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Platform Material Adverse Effect, other than Liabilities or
allowances which are disclosed or accrued or reserved against in the
consolidated balance sheet of Platform as of December 31, 1999, included in the
Platform Financial Statements delivered prior to the date of this Agreement or
reflected in the notes thereto.
4.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1999,
except as disclosed in the Platform Financial Statements filed with the SEC
prior to the date hereof or as disclosed in Section 4.7 of the Platform
Disclosure Memorandum, there have been no (i) events, changes, or occurrences
which have had, or are reasonably likely to have, individually or in the
aggregate, a Platform Material Adverse Effect; (ii) declaration, setting aside
or payment of any dividend or other distribution with respect to Platform's
capital; (iii) material changes in Platform's accounting principles, practices
or methods; (iv) damage or destruction to, or loss of, any physical property,
whether or not covered by insurance, that could individually or in the
aggregate, reasonably be expected to have a Platform Material Adverse Effect;
(v) amendment or changes in the Platform Articles of Incorporation or the
Platform Bylaws; or (vi) other than in the ordinary course of business, sale of
a material amount of assets of Platform or any of the Platform Subsidiaries.
Except as set forth in the Platform Disclosure Memorandum, since December 31,
1999, neither Platform nor any Platform Subsidiary has taken any other action
that it would be prohibited from taking without Parent's consent after the date
hereof pursuant to Section 6.2 other than such actions taken in the ordinary
course of business.
4.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf
of any of the Platform Entities for periods beginning on or after January 1,
1994, have been timely filed or requests for extensions have been timely filed,
granted, and have not expired for periods ended on or before December 31, 1999,
except to the extent that all such failures to file, taken together, are not
reasonably likely to have a Platform Material Adverse Effect, and all Tax
Returns filed are complete and accurate in all material respects, or except as
disclosed in Section 4.8 of the Platform Disclosure Memorandum. Except as
disclosed in Section 4.8 of the Platform Disclosure Memorandum, all Taxes shown
on filed Tax Returns have been paid. As of the date of this Agreement, there is
no audit examination, deficiency, or refund Litigation with respect to any
Taxes, except as reserved against in the Platform Financial Statements delivered
prior to the date of this Agreement or as disclosed in Section 4.8 of the
Platform Disclosure Memorandum.
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All Taxes and other Liabilities due with respect to completed and settled
examinations or concluded Litigation have been paid. There are no Liens with
respect to Taxes upon any of the Assets of the Platform Entities, except for any
such Liens which are not reasonably likely to have a Platform Material Adverse
Effect.
(b) Except as disclosed in Section 4.8 of the Platform
Disclosure Memorandum, none of the Platform Entities has executed an extension
or waiver of any statute of limitations on the assessment or collection of any
Tax due that is currently in effect.
(c) The provision for any Taxes due or to become due for
any of the Platform Entities for the period or periods through and including the
date of the respective Platform Financial Statements that has been made and is
reflected on such Platform Financial Statements is sufficient to cover all such
Taxes.
(d) Deferred Taxes of the Platform Entities have been
provided for in the Platform Financial Statements in accordance with GAAP.
(e) Except as disclosed in Section 4.8 of the Platform
Disclosure Memorandum, none of the Platform Entities is a party to any Tax
allocation or sharing agreement and none of the Platform Entities has been a
member of an affiliated group filing a consolidated federal income Tax Return,
has any Liability for Taxes of any Person (other than Platform and its
Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar
provision of state, local or foreign Law) as a transferee or successor or by
Contract or otherwise.
(f) Except as disclosed in Section 4.8 of the Platform
Disclosure Memorandum, none of the Platform Entities has made any payments, is
obligated to make any payments, or is a party to any Contract that could
obligate it to make any payments that would be disallowed as a deduction under
Section 280G or 162(m) of the Internal Revenue Code and the execution of the
Agreement would not result in any such disallowance.
4.9 ASSETS.
(a) Except as disclosed in Section 4.9 of the Platform
Disclosure Memorandum or as disclosed or reserved against in the Platform
Financial Statements delivered prior to the date of this Agreement, the Platform
Entities have good and marketable title, free and clear of all Liens, to all of
their respective Assets, except for any such Liens or other defects of title
which are not reasonably likely, individually or in the aggregate, to have a
Platform Material Adverse Effect.
(b) The Platform Entities currently maintain insurance
similar in amounts, scope, and coverage as Platform believes is adequate to
conduct its business. Except as disclosed in Section 4.9 of the Platform
Disclosure Memorandum, there are presently no claims for amounts exceeding in
any individual case $250,000 pending under such policies of insurance and no
notices of claims in excess of such amounts have been given by any Platform
Entity under such policies.
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(c) The Assets of the Platform Entities include all
Assets required to operate the businesses of the Platform Entities as presently
conducted.
4.10 INTELLECTUAL PROPERTY. Except as disclosed in Section 4.10 of
the Platform Disclosure Memorandum, (i) each Platform Entity owns or has a
license to use all of the Intellectual Property used by such Platform Entity in
the course of its business, (ii) each Platform Entity is the owner of or has a
license to any Intellectual Property sold or licensed to a third party by such
Platform Entity in connection with such Platform Entity's business operations,
and such Platform Entity has the right to convey by sale or license any
Intellectual Property so conveyed, (iii) to the Knowledge of Platform, no
Platform Entity is in Default under any of its Intellectual Property licenses
and no proceedings which challenge the rights of any Platform Entity with
respect to Intellectual Property used, sold, or licensed by such Platform Entity
in the course of its business have been instituted, are pending, or have been
threatened, nor, to the Knowledge of Platform, has any person claimed or alleged
any rights to such Intellectual Property, except for any failure to own or
license, Default or proceeding which is not reasonably likely to have a Platform
Material Adverse Effect. To the Knowledge of Platform, the conduct of the
business of the Platform Entities does not infringe any Intellectual Property of
any other person. Except as disclosed in Section 4.10 of the Platform Disclosure
Memorandum, no Platform Entity is obligated to pay any recurring royalties to
any Person with respect to any such Intellectual Property.
4.11 ENVIRONMENTAL MATTERS. Except as set forth in Section 4.11 of
the Platform Disclosure Memorandum:
(a) Each Platform Entity, and its Operating Properties
are, and have been, in compliance with all Environmental Laws, except for
violations which are not reasonably likely to have, individually or in the
aggregate, a Platform Material Adverse Effect or except as disclosed in Section
4.11 of the Platform Disclosure Memorandum.
(b) There is no Litigation pending or threatened before
any court, governmental agency, or authority or other forum in which any
Platform Entity or any of its Operating Properties (or Platform in respect of
such Operating Property) has been or, with respect to threatened Litigation, may
be named as a defendant (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law or (ii) relating to the release,
discharge, spillage, or disposal into the environment of any Hazardous Material,
whether or not occurring at, on, under, adjacent to, or affecting (or
potentially affecting) a site owned, leased, or ,operated by any Platform Entity
or any of its Operating Properties, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in the
aggregate, a Platform Material Adverse Effect.
(c) During the period of any Platform Entity's operation
of any of their respective current properties, to the Knowledge of Platform,
there have been no releases, discharges, spillages, or disposals of Hazardous
Material in, on, under, adjacent to, or affecting
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(or potentially affecting) any property owned by a Platform Entity, and except
such as are not reasonably likely to have, individually or in the aggregate, a
Platform Material Adverse Effect.
4.12 COMPLIANCE WITH LAWS. Each Platform Entity has in effect all
Permits necessary for it to own, lease, or operate its material Assets and to
carry on its business as now conducted, except for those Permits the absence of
which are not reasonably likely to have, individually or in the aggregate, a
Platform Material Adverse Effect, and there has occurred no Default under any
such Permit, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Platform Material Adverse Effect. No
suspension or cancellation of any of the Permits is pending or, to the Knowledge
of Platform, threatened, except where the failure to have, or suspension or
cancellation of, any of the Permits is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect. Except as disclosed
in Section 4.12 of the Platform Disclosure Memorandum, none of the Platform
Entities:
(a) is in Default under any of the provisions of its
articles or certificate of incorporation or bylaws; or
(b) is in Default under any Laws, Orders, or Permits
applicable to its business or employees conducting its business, except for
Defaults which are not reasonably likely to have, individually or in the
aggregate, a Platform Material Adverse Effect.
4.13 LABOR RELATIONS. No Platform Entity is the subject of any
Litigation asserting that it or any other Platform Entity has committed an
unfair labor practice (within the meaning of the National Labor Relations Act,
as amended) or seeking to compel it or any other Platform Entity to bargain with
any labor organization as to wages or conditions of employment, nor is any
Platform Entity party to any collective bargaining agreement, nor to the
Knowledge of Platform, is there any strike involving any Platform Entity,
pending or threatened, or is there any activity involving any Platform Entity's
employees seeking to certify a collective bargaining unit or engaging in any
other organization activity.
4.14 EMPLOYEE BENEFIT PLANS.
(a) Except as disclosed in Section 4.14 of the Platform
Disclosure Memorandum, none of the Platform Entities or their ERISA Affiliates
maintains, sponsors, contributes to, has a commitment to establish or has any
liability or contingent liability with respect to any pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus, or other incentive plan, any employee program,
arrangement, or agreement, any medical, vision, dental, or other health plan,
any life insurance plan or any other employee benefit plan or fringe benefit
plan, including any "employee benefit plan" as that term is defined in Section
3(3) of ERISA, for any current or former employee, retiree, dependent, spouse,
director, independent contractor, or other beneficiary (collectively, the
"Platform Benefit Plans"). No Platform Benefit Plan is or has been a "defined
benefit plan" (as defined in Section 414(j)) of the Internal Revenue Code) or a
multiemployer plan within the meaning of Section 3(37) of ERISA. A true and
correct copy of each of the Platform Benefit
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Plans and all contracts relating thereto as in effect on the date hereof has
been made available to Parent prior to the execution of this Agreement, and
Parent has been provided an accurate description of any Platform Benefit Plan
which is not in written form. A true and correct copy of the most recent annual
report, accountant's opinion and Internal Revenue Service determination letter
with respect to each Platform Benefit Plan, to the extent applicable, has been
provided to Parent prior to the date hereof, and there have been no material
changes in the financial condition in the respective plan from that stated in
the annual reports and actuarial reports supplied.
(b) All Platform Benefit Plans comply and have been
administered in form and operation in accordance with their terms and all
applicable provisions of ERISA, the Internal Revenue Code, and any other
applicable Laws. Except as disclosed in Section 4.14 of the Platform Disclosure
Memorandum, each Platform Benefit Plan that is intended to be qualified under
section 401(a) of the Internal Revenue Code and all amendments thereto (except
those for which the remedial amendment period has not expired) is the subject of
a favorable Internal Revenue Service determination letter, and no event has
occurred which will or could give rise to disqualification of any such plan or
to a tax under Section 511 of the Internal Revenue Code. No Platform Entity has
engaged in a transaction with respect to any Platform Benefit Plan that,
assuming the taxable period of such transaction expired as of the date hereof,
would subject any Platform Entity to a Tax imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA. All contributions required to
be made under the terms of any Platform Benefit Plan have been timely made and
adequate accruals for all obligations under the Platform Benefit Plans are
reflected in the Platform Financial Statements.
(c) Except as disclosed in Section 4.14 of the Platform
Disclosure Memorandum, or as required by Law, no Platform Entity has any
Liability for retiree health and life benefits under any of the Platform Benefit
Plans.
(d) Except as disclosed in Section 4.14 of the Platform
Disclosure Memorandum, neither the execution and delivery of this Agreement nor
the consummation of the Transactions will (i) result in any payment (including
severance, unemployment compensation, golden parachute, or otherwise) becoming
due to any director or any employee of any Platform Entity from any Platform
Entity under any Platform Benefit Plan or otherwise, (ii) increase any benefits
otherwise payable under any Platform Benefit Plan, or (iii) result in the
acceleration of the time of payment or vesting of any such benefit.
(e) None of the assets of any Platform Benefit Plan are
invested in employer securities or employer real property.
(f) There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened involving any Platform
Benefit Plan.
(g) There has been no act or omission that would impair
the ability of any Platform Entity (or any successor thereto) to unilaterally
amend or terminate any Platform Benefit Plan.
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4.15 MATERIAL CONTRACTS. Except as disclosed in Section 4.15 of the
Platform Disclosure Memorandum or otherwise reflected in the Platform Financial
Statements filed with the SEC prior to the date hereof, none of the Platform
Entities, nor any of their respective Assets, businesses, or operations, is a
party to, or is bound or affected by, or receives benefits under, (i) any
employment, severance, termination, consulting, or retirement Contract providing
for aggregate payments to any Person in any calendar year in excess of $100,000,
(ii) any Contract relating to the borrowing of money by any Platform Entity or
the guarantee by any Platform Entity of any such obligation (other than
Contracts evidencing trade payables and Contracts relating to borrowings or
guarantees made in the ordinary course of business), (iii) any Contract which
prohibits or restricts any Platform Entity from engaging in any business
activities in any geographic area, line of business or otherwise in competition
with any other Person, (iv) any Contract between or among Platform Entities, and
(v) any partnership, joint venture, strategic alliance or cooperation agreement
(or any agreement similar to any of the foregoing), (vi) any voting or other
agreement governing how any Shares shall be voted, (vii) any Contract which
would prohibit or materially delay the consummation of the Merger or any of the
Transactions, (viii) any licenses, whether as licensor or licensee, of
Intellectual Property other than commercial-off-the-shelf software licenses and
software licenses relating to Platform's information system, (ix) any brokerage
or finders fee agreements other than agreements for normal brokerage commissions
or finders fees payable in the ordinary course of business, and (x) any other
Contract or amendment thereto that would be required to be filed as an exhibit
to a Form 10-K filed by Platform with the SEC as of the date of this Agreement
(collectively, the "Platform Contracts"). With respect to each Platform Contract
and except as disclosed in Section 4.15 of the Platform Disclosure Memorandum:
(i) the Platform Contract is in full force and effect (unless otherwise expired
by its terms or earlier terminated as set forth in Section 4.15 of the Platform
Disclosure Memorandum and is valid and binding on Platform (or, to the extent a
Platform Subsidiary is a party, such Platform Subsidiary) and, to Platform's
Knowledge, each other party thereto); (ii) no Platform Entity is in Default
thereunder, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Platform Material Adverse Effect; (iii) no
Platform Entity has repudiated or waived any material provision of any such
Platform Contract; and (iv) no other party to any such Platform Contract is, to
the Knowledge of Platform, in Default in any respect, other than Defaults which
are not reasonably likely to have, individually or in the aggregate, a Platform
Material Adverse Effect, or has repudiated or waived any material provision
thereunder. Except as disclosed in Section 4.15 of the Platform Disclosure
Memorandum, all of the indebtedness of any Platform Entity for money borrowed in
excess of $100,000 in any single instrument is prepayable at any time by such
Platform Entity without penalty or premium.
4.16 LEGAL PROCEEDINGS. There is no Litigation instituted or
pending, or, to the Knowledge of Platform, threatened against any Platform
Entity, or against any director, employee or employee benefit plan of any
Platform Entity, or against any Asset, interest, or right of any of them, that
is reasonably likely to have, individually or in the aggregate, a Platform
Material Adverse Effect, nor are there any Orders of any Regulatory Authorities,
other governmental authorities, or arbitrators outstanding against any Platform
Entity, that are reasonably likely to have, individually or in the aggregate, a
Platform Material Adverse Effect.
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4.17 REPORTS. Since January 1, 1998, or the date of organization if
later, each Platform Entity has timely filed all reports and statements,
together with any amendments required to be made with respect thereto, that it
was required to file with Regulatory Authorities (except for failures to file
which are not reasonably likely to have, individually or in the aggregate, a
Platform Material Adverse Effect). As of their respective dates, each of such
reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all applicable Laws,
except where the failure to comply is not reasonably likely, individually or in
the aggregate, to have a Platform Material Adverse Effect. As of their
respective dates, each such reports and documents did not, in all material
respects, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading, except for such untrue statements or omissions which are not
reasonably likely, individually or in the aggregate, to have a Platform Material
Adverse Effect.
4.18 STATE TAKEOVER LAWS. Each Platform Entity has taken all
necessary action to exempt the transactions contemplated by this Agreement from,
or if necessary to challenge the validity or applicability of, any applicable
"moratorium," "fair price," "business combination," "control share," or other
anti-takeover Laws, including Sections 14-2-1112 of the GBCC (collectively,
"Takeover Laws").
4.19 CHARTER PROVISIONS. Each Platform Entity has taken all action
so that the entering into of this Agreement and the consummation of the Merger
and the Transactions (including the execution of the Support Agreements or the
exercise of any rights under the Support Agreements) do not and will not result
in the grant of any rights to any Person under the certificate or articles of
incorporation, bylaws or other governing instruments of any Platform Entity or
restrict or impair the ability of Parent or any of its Subsidiaries to vote, or
otherwise to exercise the rights of a shareholder with respect to, shares of any
Platform Entity that may be directly or indirectly acquired or controlled by
them.
4.20 RIGHTS AGREEMENT. Platform has taken, or will take, all
necessary action, including, without limitation, amending the Rights Agreement
with respect to all of the outstanding Rights, (a) to render the Platform Rights
Agreement inapplicable to this Agreement, the Offer, the Merger and the other
Transactions (including the execution of the Support Agreements), (b) to ensure
that in connection with the Merger, the Offer and the Transactions that (i)
Parent and Purchaser, or either of them, are not deemed to be an Acquiring
Person (as defined in the Platform Rights Agreement) pursuant to the Platform
Rights Agreement and (ii) no "Stock Acquisition Date" or "Flip-in Date" (as such
terms are defined in the Platform Rights Agreement) occurs by reason of the
execution and delivery of this Agreement or the consummation of the Offer, the
Merger or other Transactions (including the execution of the Support Agreements)
and (c) so that Platform will have no obligations under the Platform Rights or
the Platform Rights Agreement in connection with the Offer, the Merger or the
Transactions and the holders of Shares and the associated Platform Rights will
have no rights under the Platform Rights or the Platform Rights Agreement in
connection with the Offer, the Merger or the Transactions (including the
execution of the Support Agreements). The Platform Rights
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Agreement, as so amended, has not been further amended or modified. Copies of
all such amendments to the Platform Rights Agreement (or drafts of amendments to
be made in connection with the execution of this Agreement) have been previously
provided to Purchaser.
4.21 DEBT. Platform's total debt does not exceed $45 million,
provided, however, that for purposes of calculating "total debt," all costs,
fees and expenses attributable to this Agreement and the Transactions
(including, without limitation, all severance costs, management contract
payments and all investment banking, legal and accounting costs, fees and
expenses), and the borrowing of funds by Platform to make such payments, shall
be excluded from "total debt."
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT, PURCHASER AND THE GUARANTORS
Parent, Purchaser and each of the Guarantors hereby jointly and
severally represent and warrant to Platform as follows:
5.1 ORGANIZATION, STANDING AND POWER. Parent is a company duly
organized, validly existing and in good standing under the Laws of The
Netherlands, and has the corporate power and authority to carry on its business
as now conducted and to own lease and operate its material Assets.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Parent has the corporate power and authority
necessary to execute, deliver and perform its obligations under this Agreement
and to consummate the Transactions. The execution, delivery and performance of
this Agreement and the consummation of the Transactions have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of Parent. This Agreement represents a legal, valid, and binding obligation
of Parent, enforceable against Parent in accordance with its terms (except in
all cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this Agreement
by Parent, nor the consummation by Parent of the Transactions, nor compliance by
Parent with any of the provisions hereof, will (i) conflict with or result in a
breach of any provision of Parent's organizational documents, or (ii) constitute
or result in a Default under, or require any Consent pursuant to, or result in
the creation of any Lien on any Asset of any Parent Entity under, any Contract
or Permit of any Parent Entity, where such Default or Lien, or any failure to
obtain such Consent, would prevent or materially delay the consummation of the
Offer and the Merger, or,
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(iii) subject to the early termination or expiration of the waiting period under
the HSR Act and the receipt of the consents referred to in Section 5.2(c),
constitute or result in a Default under, or require any Consent pursuant to, any
Law or Order applicable to any Parent Entity or any of their respective material
Assets where such Default, or any failure to obtain such Consent would prevent
or materially delay the consummation of the Offer and the Merger.
(c) No notice to, filing with, or Consent of, any public
body or authority by Parent or any of its Subsidiaries or Affiliates is
necessary for the consummation by Parent of the Transactions other than (i) in
connection or compliance with the provisions of the Securities Laws and
applicable state corporate and securities Laws, (ii) Consents required from
Regulatory Authorities (including non-United States Regulatory Authorities),
(iii) notices to or filings with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation with respect to any employee benefit plans, or
under the HSR Act, and (iv) Consents, filings, or notifications which, if not
obtained or made, would not prevent or materially delay the consummation of the
Offer and the Merger.
5.3 LEGAL PROCEEDINGS. There is no Litigation instituted or
pending, or, to the Knowledge of Parent, threatened against any Parent Entity,
Purchaser or the Guarantors or against any director, employee or employee
benefit plan of any Parent Entity, Purchaser or the Guarantors or against any
Asset, interest, or right of any of them, that would prevent or materially delay
the consummation of the Offer and the Merger, nor are there any Orders of any
Regulatory Authorities, other governmental authorities, or arbitrators
outstanding against any Parent Entity, Purchaser or the Guarantors that would
prevent or materially delay the consummation of the Offer and the Merger.
5.4 AUTHORITY OF PURCHASER.
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Georgia, is a
wholly owned Subsidiary of Vedior and immediately prior to the initial purchase
of Shares under the Offer will become a wholly owned subsidiary of Parent. The
authorized capital stock of Purchaser consists of 1,000 shares of common stock
("Purchaser Common Stock"), 100 shares of which are validly issued and
outstanding, fully paid and nonassessable and are owned by Vedior (and will
immediately prior the initial purchase of Shares under the Offer be transferred
to Parent) free and clear of any Lien. Purchaser has the corporate power and
authority necessary to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of Purchaser. This Agreement represents a legal, valid, and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms (except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting
the enforcement of creditors' rights generally and except that the availability
of the equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought).
Vedior, as the sole shareholder of Purchaser, has irrevocably
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caused the shares of Purchaser Common Stock to be voted in favor of approval of
this Agreement, as and to the extent required by applicable Law.
(b) Neither the execution and delivery of this Agreement
by Purchaser, nor compliance by Purchaser with any of the provisions hereof,
will (i) conflict with or result in a breach of any provision of Purchaser's
Articles of Incorporation or Bylaws, or (ii) subject to the early termination or
expiration of the waiting period under the HSR Act and the receipt of the
consents referred to in Section 5.4(c), constitute or result in a Default under,
or require any Consent pursuant to, or result in the creation of any Lien on any
Asset of Purchaser under, any Contract or Permit of Purchaser or any Subsidiary
or Affiliate of Purchaser, where such Default or Lien, or any failure to obtain
such Consent, would prevent or materially delay the consummation of the Offer
and the Merger, or, (iii) constitute or result in a Default under, or require
any Consent pursuant to, any Law or Order applicable to Purchaser or any
Subsidiary or Affiliate of Purchaser or any of its material Assets where such
Default, or any failure to obtain such Consent would prevent or materially delay
the consummation of the Offer and the Merger.
(c) No notice to, filing with, or Consent of, any public
body or authority by Purchaser or any of its Subsidiaries or Affiliates is
necessary for the consummation by Purchaser of the Transactions other than (i)
in connection or compliance with the provisions of the Securities Laws and
applicable state corporate and securities Laws, (ii) Consents required from
Regulatory Authorities (including non-United States Regulatory Authorities),
(iii) notices to or filings with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation with respect to any employee benefit plans, or
under the HSR Act, and (iv) Consents, filings, or notifications which, if not
obtained or made, would not prevent or materially delay the consummation of the
Offer and the Merger.
5.5 AUTHORITY OF GUARANTORS, NO BREACH BY AGREEMENT.
(a) SANA is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware and is a
wholly owned Subsidiary of Vedior. The authorized capital stock of SANA consists
of 100,000 shares of Common Stock, all of which is validly issued and
outstanding, fully paid and nonassessable and is owned by Vedior free and clear
of any Lien. Vedior is a company duly organized, validly existing and in good
standing under the Laws of The Netherlands.
(b) Each of the Guarantors has the corporate power and
authority necessary to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
Transactions have been duly and validly authorized by all necessary corporate
action in respect thereof on the part of each Guarantor. This Agreement
represents a legal, valid, and binding obligation of each Guarantor, enforceable
against each Guarantor in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of
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the equitable remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding may be brought).
(c) Neither the execution and delivery of this Agreement
by either Guarantor, nor compliance by either Guarantor with any of the
provisions hereof, will (i) conflict with or result in a breach of any provision
of such Guarantor's Articles of Incorporation or Bylaws or other organizational
documents, as applicable, or (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of any such Guarantor under, any Contract or Permit, where such Default or
Lien, or any failure to obtain such Consent, would prevent or materially delay
the consummation of the Offer and the Merger, or, (iii) constitute or result in
a Default under, or require any Consent pursuant to, any Law or Order applicable
to such Guarantor or any of their respective material Assets where such Default,
or any failure to obtain such Consent would prevent or materially delay the
consummation of the Offer and the Merger.
(d) No notice to, filing with, or Consent of, any public
body or authority is necessary for the performance by either Guarantor of its
obligations under this Agreement.
(e) On the date of this Agreement, Vedior beneficially
owns (within the meaning of Rule 13d-3 under the 0000 Xxx) 50,000 Shares.
5.6 SOLVENCY OF PARENT, PURCHASER AND GUARANTORS. Neither the
execution and delivery of this Agreement nor the consummation of the
Transactions (including, without limitation, the performance of the guarantees)
shall render any of Parent, Purchaser or the Guarantors insolvent, or leave such
Party with an unreasonably small capital to conduct its business, or cause such
Party to have incurred debts (or to have intended to have incurred debts) beyond
its ability to pay such debts as they mature.
5.7 FINANCING. Parent and Purchaser collectively have cash on hand
or will have cash, or with respect to clause (iii), (iv) and (v) below other
resources, available to them in an aggregate amount sufficient to enable Parent
and Purchaser to pay in full (i) the aggregate Offer Price, (ii) the aggregate
Merger Consideration, (iii) all fees and expenses payable by the Platform
Entities, Parent and Purchaser in connection with this Agreement and the
Transactions, including the payment of all severance obligations and obligations
under senior management employment agreements owed by the Platform Entities,
(iv) the repayment of all indebtedness, including the repayment of all
indebtedness of the Platform Entities under Section 7.14, and (v) the working
capital and other operational requirements of Platform and its Subsidiaries from
and after the date of the initial purchase of the Shares under the Offer.
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ARTICLE 6
CONDUCT OF BUSINESS PENDING CONSUMMATION
6.1 AFFIRMATIVE COVENANTS OF PLATFORM. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement or the time the designees of Parent have been elected to and
constitute a majority of the Board of Directors of Platform (the "Appointment
Date"), unless the prior written consent of Parent shall have been obtained
(which consent shall not be unreasonably withheld), and except as otherwise
expressly contemplated herein, Platform shall and shall cause each Platform
Subsidiary to (a) (i) carry on its respective businesses in the ordinary course
consistent with past practice, (ii) use reasonable efforts to preserve intact
its current business organizations and keep available the services of its
current officers and employees, (iii) use reasonable efforts to preserve its
relationships with principal customers, suppliers and other Persons with which
it has business dealings, (iv) comply in all material respects with all Laws
applicable to it or any of its Assets or businesses and (v) maintain in full
force and effect all the Permits necessary for such businesses (except where the
failure to maintain such Permits is not reasonably likely to have, individually
or in the aggregate, a Platform Material Adverse Effect), and (b) take no action
which would (i) materially adversely affect the ability of any Party to obtain
any Consents required for the Transactions, (ii) except as otherwise permitted
by Section 7.10, cause any of the conditions of the Offer set forth in Exhibit
1, or any of the conditions to the Merger set forth in Article 8, not to be
satisfied, or (iii) materially adversely affect the ability of any Party to
perform its covenants and agreements under this Agreement.
6.2 NEGATIVE COVENANTS OF PLATFORM. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement or the Appointment Date, unless the prior written consent of Parent
shall have been obtained (which consent shall not be unreasonably withheld), and
except as otherwise expressly contemplated herein, or as disclosed in Section
6.2 of the Platform Disclosure Memorandum, Platform covenants and agrees that it
will not do or agree or commit to do, or permit any of its Subsidiaries to do or
agree or commit to do, any of the following:
(a) amend the Platform Articles of Incorporation or the
Platform Bylaws or articles of incorporation or bylaws of any Platform Entity;
or
(b) incur any debt obligations that would result in
Platform being in breach of Section 4.21 of this Agreement, or impose, or suffer
the imposition, on any Asset of any Platform Entity of any Lien or permit any
such Lien to exist (other than in connection with Liens in effect as of the date
hereof that are disclosed in the Platform Disclosure Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit plans),
directly or indirectly, any shares, or any securities convertible into any
shares, of the capital stock of any Platform Entity, or declare or pay any
dividend or make any other distribution in respect of Platform's capital stock;
or
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(d) except as provided in this Agreement, or pursuant to
the exercise of stock options outstanding as of the date hereof and pursuant to
the terms thereof in existence on the date hereof, or pursuant to the Platform
Rights Agreement, or as disclosed in Section 6.2(d) of the Platform Disclosure
Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into
any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or
otherwise permit to become outstanding, any additional Shares or any other
capital stock of any Platform Entity, or any stock appreciation rights, or any
option, warrant, or other Equity Right (including but not limited to stock
appreciation rights, phantom stock or stock based performance awards); or
(e) adjust, split, combine or reclassify any capital
stock of any Platform Entity or issue or authorize the issuance of any other
securities in respect of or in substitution for Shares, or sell, lease, mortgage
or otherwise dispose of or otherwise encumber any shares of capital stock of any
Platform Entity (unless any such shares of stock are sold or otherwise
transferred to another Platform Entity) or any Assets, individually or
aggregate, having a book value in excess of $250,000 other than in the ordinary
course of business for reasonable and adequate consideration; or
(f) except for purchases of U.S. Treasury securities or
U.S. Government agency securities, which in either case have maturities of three
years or less, purchase any securities or make any material investment, either
by purchase of stock or securities, contributions to capital, Asset transfers,
or purchase of any Assets, in any Person other than a wholly owned Platform
Subsidiary, or otherwise acquire direct or indirect control over any Person,
other than in connection with (i) the creation of new wholly owned Subsidiaries
organized to conduct or continue activities otherwise permitted by this
Agreement, or (ii) investments in connection with cash management activities
consistent with past practices; or
(g) grant any increase in compensation or benefits to the
employees or officers of any Platform Entity, except as disclosed in Section
6.2(g) of the Platform Disclosure Memorandum or as required by Law; accelerate
the vesting of any Platform Option (other than by its terms); enter into or
amend any severance agreements with officers of any Platform Entity; or grant
any increase in fees or other increases in compensation or other benefits to
directors of any Platform Entity, except as disclosed in Section 6.2(g) of the
Platform Disclosure Memorandum; or
(h) enter into or amend any employment Contract between
any Platform Entity and any Person having a salary thereunder in excess of
$100,000 per year (unless such amendment is required by Law) that the Platform
Entity does not have the unconditional right to terminate without Liability
(other than Liability for services already rendered), at any time on or after
the Effective Time; or
(i) adopt any new employee benefit plan of any Platform
Entity or terminate or withdraw from, or make any material change in or to, any
existing employee benefit plans of any Platform Entity other than any such
change that is required by Law or that, in the
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opinion of counsel, is necessary or advisable to maintain the tax qualified
status of any such plan, or make any distributions from such employee benefit
plans, except as required by Law or the terms of such plans; or
(j) make any material tax election or significant change
in any Tax or accounting methods or systems of internal accounting controls,
except as may be appropriate to conform to changes in Tax Laws or GAAP, file any
amended Tax Returns that may have a material adverse effect on the tax position
of Platform or any Platform Subsidiary or settle or compromise any material
federal, state, local or foreign Tax liability or refund; or
(k) except for the settlement of any suit, action or
claim disclosed in Section 6.2(k) of the Platform Disclosure Memorandum, settle
or compromise any pending suit, action, audit or claim (A) against Platform or
any Platform Subsidiary by any Regulatory Authority, or (B) which is material to
Platform and the Platform Subsidiaries, taken as a whole, or which relates to
the Transactions; or
(l) adopt a plan of complete or partial liquidation or
dissolution of any Platform Entity (other than the Merger); or
(m) (i) pay, discharge or satisfy any claims, liabilities
or obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment discharge or satisfaction (A) in the ordinary
course of business and consistent with past practice or in accordance with their
terms, of Liabilities reflected or reserved against in the most recent
consolidated financial statements of Platform included in the SEC Reports filed
prior to the date of this Agreement or (B) of Liabilities incurred in the
ordinary course of business and consistent with past practice, (ii) cancel any
material indebtedness (individually or in the aggregate) or waive any claims
(except in connection with the settlement of any suit, action or claim disclosed
on Section 6.2(m) of the Platform Disclosure Memorandum) or rights of
substantial value or (iii) waive the benefits of, or agree to modify in any
manner, any confidentiality, standstill or similar agreement to which any
Platform Entity is a party; or
(n) sell, lease (as lessor), license or otherwise dispose
of or subject to any lien or encumbrance any Assets, except sales of excess or
obsolete Assets in the ordinary course of business and consistent with past
practice; or
(o) enter into any "non-compete" or similar agreement; or
(p) except in the ordinary course of business and
consistent with past practice, enter into, modify, amend or terminate any
Contract that is or would be a Platform Contract or waive, release, compromise
or assign any material rights or claims thereunder; or
(q) take, or propose to take, or agree to take in writing
or otherwise, any of the actions described in Section 6.2 (a) through 6.2(p) or
any action which would result in any of the conditions set forth in Exhibit 1
not being satisfied.
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6.3 COVENANTS OF PARENT AND PURCHASER. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement, unless the prior written consent of Platform shall have been obtained
(which consent shall not be unreasonably withheld), and except as otherwise
expressly contemplated herein, Parent and Purchaser shall and shall cause each
of its Subsidiaries to take no action which would (i) materially adversely
affect the ability of any Party to obtain any Consents required for the
transactions contemplated hereby, (ii) cause any of the conditions of the Offer
set forth in Exhibit 1, or any of the conditions set forth in Article 8, not to
be satisfied, or (iii) materially adversely affect the ability of any Party to
perform its covenants and agreements under this Agreement.
6.4 ADVERSE CHANGES IN CONDITION. Each Party agrees to give
written notice promptly to the other Party upon becoming aware of the occurrence
or impending occurrence of any event or circumstance relating to it or any of
its Subsidiaries which (i) is reasonably likely to have, individually or in the
aggregate, a Platform Material Adverse Effect or to prevent or materially delay
the obligation of Parent and Purchaser to consummate the Offer and the Merger,
as applicable, (ii) would cause or constitute a material breach of any of its
representations, warranties, or covenants contained herein, and to use its
reasonable efforts to prevent or promptly to remedy the same or (iii) causes any
condition set forth in Exhibit 1 to be unsatisfied in any material respect at
any time from the date hereof to the date Purchaser purchases Shares pursuant to
the Offer; provided, however, that the delivery of any notice pursuant to this
Section 6.4 shall not limit or otherwise affect the remedies available to Parent
or Platform hereunder. Each Party shall give prompt notice to the other Parties
of any written notice or other written communication from any third party
alleging that the consent of such third party is or may be required in
connection with the Transactions..
6.5 REPORTS. Each Party and its Subsidiaries shall file all
reports required to be filed by it with Regulatory Authorities (including
non-United States Regulatory Authorities) between the date of this Agreement and
the Effective Time. If financial statements are contained in any such reports
filed with the SEC, such financial statements will fairly present the
consolidated financial position of the entity filing such statements as of the
dates indicated and the consolidated results of operations, changes in
shareholders' equity, and cash flows for the periods then ended in accordance
with GAAP (subject in the case of interim financial statements to normal
recurring year-end adjustments that are not material). As of their respective
dates, such reports filed with the SEC will comply in all material respects with
the Securities Laws and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Any financial statements contained in any other
reports to another Regulatory Authority shall be prepared in accordance with
Laws applicable to such reports.
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ARTICLE 7
ADDITIONAL AGREEMENTS
7.1 SHAREHOLDERS' MEETING; PROXY STATEMENT.
(a) If required by applicable Law in order to consummate
the Merger, Platform, acting through its Board of Directors, shall, in
accordance with applicable Law:
(i) duly call, give notice of, convene and hold
a special meeting of its shareholders (the "Shareholders' Meeting") as
promptly as practicable following the date on which the Purchaser
completes payment and purchase of Shares pursuant to the Offer for the
purpose of considering and taking action upon the approval and adoption
of this Agreement;
(ii) prepare and file with the SEC a preliminary
proxy or information statement relating to the Merger and this
Agreement and use its best efforts (x) to obtain and furnish the
information required to be included by the SEC in the definitive proxy
or information statement to be mailed to Platform shareholders
(including any amendment or supplement thereto, the "Proxy Statement")
and, after consultation with Parent, to respond promptly to any
comments made by the SEC with respect to the preliminary proxy or
information statement and cause the Proxy Statement to be mailed to its
shareholders as promptly as practicable after filing, and, if following
such mailing and prior to approval of this Agreement by Platform's
shareholders there shall occur any event that should be set forth in an
amendment or supplement to the Proxy Statement, to promptly prepare and
mail to its shareholders such an amendment or supplement, provided that
Platform shall not mail any such amendment or supplement without
consultation with Parent and its counsel and shall not mail any such
amendment or supplement to which Parent reasonably objects, and (y) to
obtain the necessary approvals of the Merger and this Agreement by its
shareholders; and
(iii) include in the Proxy Statement the
recommendation of the Board of Directors that shareholders of Platform
vote in favor of the approval of this Agreement.
(b) Following the purchase of Shares, if any, pursuant to
the Offer, Parent shall ensure that all such Shares purchased continue to be
held by Parent or Purchaser or a direct wholly owned Subsidiary of Parent until
such time as the Merger is consummated. Parent shall vote, or cause to be voted,
all of the Shares then owned by it, Purchaser or any other Parent Subsidiary in
favor of the approval of this Agreement.
7.2 MERGER WITHOUT MEETING OF SHAREHOLDERS. Notwithstanding the
provisions of Section 7.1, in the event that Parent, Purchaser and any other
Parent Subsidiary shall acquire in the aggregate at least 90% of the outstanding
Shares of Platform (to the extent that Section 14-2-1104 of the GBCC is
available), pursuant to the Offer or otherwise, the Parties shall, at the
request of Parent and subject to the provisions of Article 7, take all necessary
and
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appropriate action to cause the Merger to become effective as soon as
practicable after such acquisition, without a meeting of shareholders of
Platform, in accordance with the GBCC.
7.3 PURCHASER COMPLIANCE. Parent shall cause Purchaser to comply
with all of its obligations under or related to this Agreement and hereby
guarantees Purchaser's performance hereunder.
7.4 APPLICATIONS; ANTITRUST NOTIFICATION. Parent shall promptly
prepare and file, and Platform shall cooperate in the preparation and, where
appropriate, filing of, applications with all Regulatory Authorities (including
non-United States Regulatory Authorities) having jurisdiction over the
transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement. To the
extent required by the HSR Act, each of the Parties will promptly file with the
United States Federal Trade Commission and the United States Department of
Justice the notification and report form required for the Transactions and any
supplemental or additional information which may reasonably be requested in
connection therewith pursuant to the HSR Act and will comply in all material
respects with the requirements of the HSR Act.
7.5 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
conditions of this Agreement, Platform shall execute and file the Certificate of
Merger with the Secretary of State of the State of Georgia in connection with
the Closing.
7.6 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms
and conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
reasonably practicable after the date of this Agreement, the Transactions,
including using its reasonable efforts to lift or rescind any Order adversely
affecting its ability to consummate the Transactions and to cause to be
satisfied the conditions referred to in Exhibit 1 and in Article 8; provided,
that nothing herein shall preclude either Party from exercising its rights under
this Agreement. Each Party shall use, and shall cause each of its Subsidiaries
to use, its reasonable efforts to obtain all Consents necessary or desirable for
the consummation of the Transactions.
7.7 BOARD OF DIRECTORS OF PLATFORM.
(a) Promptly after (i) the purchase of and payment for
that number of Shares by Purchaser, which together with any Shares beneficially
owned (within the meaning of Rule 13d-3 under the 0000 Xxx) by Parent, Purchaser
and their respective Affiliates, represents at least a majority of the Fully
Diluted Shares (as defined in Exhibit 1) and (ii) compliance with Section 14(f)
of the 1934 Act and Rule 14f-1 promulgated thereunder, whichever shall occur
later, Parent shall be entitled to designate such number of directors (the
"Designees"), rounded up to the next whole number, on the Board of Directors of
Platform as is equal to the product of the total number of directors on such
Board (giving effect to the directors designated by Parent
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pursuant to this Section 7.7(a)) multiplied by the percentage that the number of
Shares so accepted for payment bears to the total number of Shares then
outstanding. In furtherance thereof, Platform shall, upon the request of Parent
(subject to applicable Law, including applicable fiduciary duties), use its
reasonable efforts either to increase the size of its Board of Directors or
secure the resignations of such number of its incumbent directors, or both, as
is necessary to enable the Designees to be so elected to Platform's Board of
Directors, and shall take all actions reasonably available to Platform to cause
Parent's Designees to be so elected. At such time, Platform shall, if requested
by Parent (subject to applicable Law, including applicable fiduciary duties),
also cause persons designated by Parent to constitute at least the same
percentage (rounded up to the next whole number) as is on Platform's Board of
Directors of (i) each committee of Platform's Board of Directors, (ii) each
board of directors of each Platform Subsidiary and (iii) each committee (or
similar body) of any such board.
(b) Platform shall promptly take all actions required
pursuant to Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder
in order to fulfill its obligations under Section 7.7(a), including mailing to
shareholders the information required by such Section 14(f) and Rule 14f-1 as is
necessary to enable Parent's Designees to be elected to Platform's Board of
Directors. Parent or Purchaser shall supply Platform and be solely responsible
for any information with respect to either of them and their nominees, officers,
directors and Affiliates required by such Section 14(f) and Rule 14f-1. The
provisions of this Section 7.7 are in addition to and shall not limit any rights
which Purchaser, Parent or any of their Affiliates may have as a holder or
beneficial owner of Shares as a matter of Law with respect to the election of
directors or otherwise.
(c) In the event that the Designees are elected to
Platform's Board of Directors, until the Effective Time, Platform's Board of
Directors shall have at least three directors who are directors on the date
hereof and who would constitute "continuing directors" within the meaning of
Section 14-2-1110(6) of the GBCC (the "Independent Directors"), provided that,
in such event, if the number of Independent Directors shall be reduced below
three for any reason whatsoever, any remaining Independent Directors (or
Independent Director, if there is only one remaining) shall be entitled to
designate persons to fill such vacancies who shall be deemed to be Independent
Directors for purposes of this Agreement or, if no Independent Director then
remains, the other directors shall designate three persons to fill such
vacancies who shall not be shareholders, Affiliates or associates of Parent or
Purchaser and such persons shall be deemed to be Independent Directors for
purposes of this Agreement. Notwithstanding anything in this Agreement to the
contrary, in the event that the Designees are elected to Platform's Board of
Directors, after the acceptance for payment of Shares pursuant to the Offer and
prior to the Effective Time, in addition to any other applicable requirements,
the affirmative vote of a majority of the Independent Directors shall be
required to (i) amend or terminate this Agreement by Platform, (ii) exercise or
waive any of Platform's rights, benefits or remedies hereunder, (iii) take any
other action by Platform's Board of Directors under or in connection with this
Agreement, (iv) borrow money, amend the Credit Agreement, pledge or otherwise
encumber any of the Assets of Platform or any of the Platform Entities, or (v)
effect a dividend or distribution of Assets of Platform or any Platform Entity.
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7.8 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Effective Time, Platform shall keep
Parent advised of all material developments relevant to its business and to
consummation of the Merger and shall permit Parent to make or cause to be made
such investigation of the business and properties of Platform and its
Subsidiaries and of their respective financial and legal conditions as Parent
reasonably requests, provided that such investigation shall be reasonably
related to the Transactions and shall not interfere unnecessarily with normal
operations.
(b) In addition to Vedior's obligations under the
Confidentiality Agreement, which is hereby reaffirmed and adopted, and
incorporated by reference herein, Vedior shall, and shall cause its advisers and
agents to, maintain the confidentiality of all confidential information
furnished to it by Platform concerning the businesses, operations, and financial
positions of the Platform Entities and shall not use such information for any
purpose except in furtherance of the Transactions. If this Agreement is
terminated prior to the Effective Time, Vedior shall promptly return or certify
the destruction of all documents and copies thereof, and all work papers
containing confidential information received from Platform. The Confidentiality
Agreement shall not prohibit Parent, Purchaser or Vedior from responding to the
Board of Directors of Platform (and no other Person) regarding an Acquisition
Proposal by a third party prior to the termination of this Agreement.
7.9 PRESS RELEASES. Prior to the Effective Time, Platform and
Parent shall consult with each other and provide each other a reasonable
opportunity to review and comment upon as to the form and substance of any press
release or other public disclosure materially related to this Agreement or any
of the other Transactions contemplated hereby; provided, that nothing in this
Section 7.9 shall be deemed to prohibit any Party from making any disclosure
which its counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
7.10 NO SOLICITATION; ACQUISITION PROPOSALS.
(a) Except with respect to this Agreement and the
Transactions, no Platform Entity nor any Affiliate thereof nor any
Representatives thereof retained by any Platform Entity shall directly or
indirectly solicit, initiate or encourage the making of any Acquisition Proposal
by any Person. Notwithstanding anything herein to the contrary, Platform and its
Board of Directors shall be permitted (i) to the extent applicable, to comply
with Rule 14d-9 and Rule 14e-2 promulgated under the 1934 Act with regard to an
Acquisition Proposal, and (ii) to engage in any discussions or negotiations
with, or provide any information to, any Person in response to an unsolicited
written Acquisition Proposal by any such Person, if and only to the extent (in
the case of clause (ii) only) that (A) the initial purchase of Shares pursuant
to the Offer shall not have occurred, (B) Platform's Board of Directors
concludes in good faith (x) after consulting with its independent financial
advisors, that such Person is reasonably capable of consummating such
Acquisition Proposal, taking into account the legal, financial, regulatory and
other aspects of such Acquisition Proposal and the Person making such
Acquisition Proposal,
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and that such Acquisition Proposal could reasonably be expected to result in a
Superior Proposal and (y) (after consultation with its outside legal counsel)
that the failure to take such action would be inconsistent with its fiduciary
duties under applicable Law, (C) prior to providing any information or data to
any Person in connection with an Acquisition Proposal by any such Person,
Platform's Board of Directors receives from such Person an executed
confidentiality agreement containing customary confidentiality and standstill
provisions, and (D) prior to providing any information or data to any Person or
entering into discussions or negotiations with any Person, Platform's Board of
Directors notifies Parent promptly (and in any event not later than 24 hours
after receipt hereof) of the receipt of the Acquisition Proposal and shall in
such notice indicate in reasonable detail the identity of the offeror and the
material terms and conditions of any proposal and shall keep Parent promptly
advised of the status and material terms of any such inquiry, offer or proposal.
Platform agrees that it will, and will cause its officers, directors and
Representatives to, immediately cease and cause to be terminated any activities,
discussions or negotiations existing as of the date of this Agreement with any
parties conducted heretofore with respect to any Acquisition Proposal. Platform
agrees that it will use reasonable efforts to promptly inform its directors,
officers, key employees, agents and Representatives of the obligations
undertaken in this Section 7.10.
(b) Except as provided in the following sentence, neither
Platform nor its Board of Directors shall withdraw or modify in a manner adverse
to Parent or Purchaser or following the public announcement of an Acquisition
Proposal fail at Parent's request to reaffirm the approval by such Board of
Directors of this Agreement, the Offer or the Merger or the favorable
recommendation of the Board with respect thereto. Notwithstanding the foregoing,
in the event that, after Platform has received an Acquisition Proposal not
solicited in violation of this Agreement, the Board of Directors determines
(after consultation with its outside legal counsel), prior to the consummation
(or, if the Offer is consummated and extended, the initial consummation) of the
Offer, that the failure to take the following action would be inconsistent with
its fiduciary duties under applicable Law, the Board may (x) withdraw or modify
its approval or recommendation of this Agreement, the Offer or the Merger and
disclose to Platform's shareholders a position contemplated by Rule 14d-9 or
Rule 14e-2(a) promulgated under the 1934 Act or otherwise make disclosure to
them, or (y) approve or recommend such an Acquisition Proposal that is a
Superior Proposal; provided, however, that in no event may the Board of
Directors take either such action earlier than the conclusion of the third full
business day following Parent's receipt of written notice of the intention of
the Board of Directors to do so.
(c) Platform and the Board of Directors shall not (i)
redeem the Rights under the Platform Rights Agreement, or (ii) waive or amend
any provision of the Platform Rights Agreement, in any such case to permit or
facilitate the consummation of any Acquisition Proposal (other than the
Acquisition Proposal contemplated by this Agreement), unless this Agreement has
been terminated in accordance with its terms.
(d) Platform shall not release any third party from the
confidentiality and standstill provisions of any agreement to which Platform is
a party, unless Platform's Board of Directors concludes (after consultation with
outside legal counsel) that the failure to do so
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would be inconsistent with its fiduciary duties under applicable Law. In this
regard, Platform may engage in discussions with parties who have executed
confidentiality agreements containing standstill provisions and amend the terms
of such agreements to the extent that such parties notify Platform that but for
the provisions of such agreements the party would be prepared to make an
Acquisition Proposal, but shall only amend or release in accordance with the
provisions of the preceding sentence.
7.11 STATE TAKEOVER LAWS. Each Platform Entity shall promptly take
all necessary steps to exempt the transactions contemplated by this Agreement or
the Support Agreements from, or if necessary to challenge the applicability of,
any applicable Takeover Law.
7.12 EMPLOYEE BENEFITS AND CONTRACTS.
(a) For the first year following the Effective Time, each
employee of the Platform Entities shall be eligible for benefits which in the
aggregate are no less favorable than the employee benefits available to such
employee under existing plans of the Platform Entities. For purposes of such
benefit plans, programs, policies and arrangements, Parent shall treat the prior
service of such employees with Platform and its ERISA Affiliates, including all
periods of service recognized under the Acsys, Inc. 401(k) Savings Plan (the
"Platform 401(k) Plan"), as service rendered to Parent or its ERISA Affiliate
for eligibility and vesting purposes and, solely with regard to vacation and
sick leave programs, for benefit accrual purposes thereunder.
(b) No employee of any Platform Entity (or eligible
dependent thereof) who is eligible for and elects to be covered under any
medical or disability insurance plan of Parent or its ERISA Affiliates shall be
excluded from coverage under such plan on the basis of a pre-existing condition
that was not also excluded under the applicable medical or disability insurance
plan of the Platform Entities. To the extent that an employee of a Platform
Entity has satisfied in whole or in part any annual deductible or paid any
out-of-pocket or co-payment expenses under a medical insurance plan of Platform
or its ERISA Affiliates for a plan year, such individual shall be credited
therefor under the corresponding provisions of the corresponding plan of Parent
or its ERISA Affiliates in which such individual participates after the
Effective Time.
(c) In the event of any termination of the Platform
401(k) Plan during the first year following the Effective Time, Parent or its
ERISA Affiliate shall maintain a tax-qualified retirement plan that, at the
request of an employee of a Platform Entity, accepts a rollover of such
employee's account from the Platform 401(k) Plan to the extent that such
distribution and rollover is permitted under applicable Law.
(d) Parent shall honor, and shall cause the Surviving
Corporation and its Subsidiaries to honor in accordance with their terms, all
employment, severance, consulting and other compensation contracts between
Platform and its Subsidiaries and any current or former director, officer, or
employee thereof that are disclosed in Section 4.14 of the Platform
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Disclosure Memorandum, and all provisions for vested amounts earned or accrued
through the Effective Time under the Platform Benefit Plans.
7.13 INDEMNIFICATION.
(a) The certificate of incorporation and bylaws of the
Surviving Corporation shall contain provisions with respect to indemnification
substantially to the same effect as those set forth in the Platform Articles of
Incorporation and the Platform Bylaws on the date hereof, which provisions shall
not be amended, modified or otherwise repealed for a period of six years after
the Effective Time in any manner that would adversely affect the rights
thereunder as of the Effective Time of individuals who at the Effective Time
were directors, officers, employees or agents of Platform, unless such
modification is required after the Effective Time by Law.
(b) Parent shall cause the Surviving Corporation to
indemnify, defend and hold harmless the present and former directors, officers,
employees and agents of the Platform Entities (each, an "Indemnified Party")
against all Liabilities arising out of actions or omissions arising out of the
Indemnified Party's service or services as directors, officers, employees or
agents of Platform or, at Platform's request, of another corporation,
partnership, joint venture, trust or other enterprise occurring at or prior to
the Effective Time (including the transactions contemplated by this Agreement)
to the fullest extent permitted under Georgia Law and by the Platform Articles
of Incorporation and the Platform Bylaws as in effect on the date hereof, and
any applicable indemnification Contracts, including provisions relating to
advances of expenses incurred in the defense of any Litigation and whether or
not any Parent Entity is insured against any such matter. Without limiting the
foregoing, in any case in which approval by the Surviving Corporation is
required to effectuate any indemnification, the Surviving Corporation shall
direct, at the election of the Indemnified Party, that the determination of any
such approval shall be made by independent counsel mutually agreed upon between
Parent and such Indemnified Party.
(c) Prior to the Effective Time, Platform shall purchase
(i) a new insurance policy or (ii) an endorsement under Platform's existing
directors, officers and corporate liability insurance policy in a form
acceptable to Platform, which shall provide the Indemnified Parties with
coverage for seven years following the Effective Time of not less than the
existing coverage under, and have other terms not materially less favorable to,
the directors, officers and corporate liability insurance coverage presently
maintained by Platform; provided, however, that Parent and the Surviving
Corporation shall not be required to pay an annual premium for such insurance in
excess of 175% of the annual premiums for 1999, but in such case shall purchase
as much such coverage as possible for such amount. The provisions of this
Section 7.13(c) shall be deemed to have been satisfied if prepaid policies have
been obtained by Platform prior to the Effective Time, which policies provide
such directors and officers with coverage as described in the preceding sentence
for an aggregate period of seven years with respect to claims arising from facts
or events that occurred on or before the Effective Time, including, without
limitation, in respect of the transactions contemplated by this Agreement;
provided, however, that the aggregate premium for such policies shall not exceed
$400,000, that Platform shall give
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Parent the opportunity to negotiate with the relevant insurers over the amount
of such premium and that Platform shall purchase the policies contemplated in
this sentence rather than the policies contemplated in the first sentence of
this Section 7.13(c) unless Parent consents otherwise. Parent shall cause the
Surviving Corporation to maintain in effect for the Indemnified Parties for not
less than seven years after the Effective Time such policies.
(d) Any Indemnified Party wishing to claim
indemnification under paragraph (b) of this Section 7.13, upon learning of any
such Liability or Litigation, shall promptly notify Parent thereof. In the event
of any such Litigation (whether arising before or after the Effective Time), (i)
Parent or the Surviving Corporation shall have the right to assume the defense
thereof and neither Parent nor the Surviving Corporation shall be liable to such
Indemnified Parties for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Parties in connection with
the defense thereof, except that if Parent or the Surviving Corporation elects
not to assume such defense or counsel for the Indemnified Parties advises that
there are substantive issues which raise conflicts of interest between Parent or
the Surviving Corporation and the Indemnified Parties, the Indemnified Parties
may retain counsel satisfactory to them, and Parent or the Surviving Corporation
shall pay all reasonable fees and expenses of such counsel for the Indemnified
Parties promptly as statements therefor are received; provided, that Parent and
the Surviving Corporation shall be obligated pursuant to this paragraph (c) to
pay for only one firm of counsel for all Indemnified Parties in any
jurisdiction, unless such Indemnified Parties shall have been advised in writing
by counsel that there exist conflicts of interest among such Indemnified Parties
that preclude one firm of counsel from representing the interests of all such
Indemnified Parties, (ii) Parent, the Surviving Corporation and the Indemnified
Parties will cooperate in the defense of any such Litigation, and (iii) neither
Parent nor the Surviving Corporation shall be liable for any settlement effected
without its prior written consent, which consent shall not be unreasonably
withheld; and provided further that neither Parent nor the Surviving Corporation
shall have any obligation hereunder to any Indemnified Parties when and if a
court of competent jurisdiction determines, and such determination shall have
become final and non-appealable, that the indemnification of such Indemnified
Parties in the manner contemplated hereby is prohibited by applicable Law.
(e) If Parent or the Surviving Corporation or any
successors or assigns shall consolidate with or merge into any other Person and
shall not be the continuing or surviving Person of such consolidation or merger
or shall transfer all or substantially all of its assets to any Person, then and
in each case, proper provision shall be made so that the successors and assigns
of Parent or the Surviving Corporation shall assume the obligations set forth in
this Section 7.13.
(f) The provisions of this Section 7.13 shall survive the
Effective Time, are irrevocable and intended expressly to be for the benefit of
and shall be enforceable by, each Indemnified Party and their respective heirs
and representatives. Parent hereby guarantees the performance by the Surviving
Corporation of the indemnification obligations of the Surviving Corporation
pursuant to this Section 7.13.
7.14 REPAYMENT OF CERTAIN INDEBTEDNESS; ADDITIONAL FINANCING. At
the time of the initial purchase of Shares under the Offer, Parent and Purchaser
shall repay or cause
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to be repaid in full all of the obligations of the Platform Entities (including
all outstanding loans) under Platform's Amended and Restated Credit Agreement
(the "Credit Agreement") dated April 13, 1999, as further amended on December
31, 1999, with Bank of America, N.A., successor in interest to NationsBank,
N.A., as lender, and Bank of America, N.A., successor in interest to
NationsBank, N.A., as administrative agent for the lenders, and the lenders
party thereto (the "Existing Facility"), and terminate such facility; provided,
however, that Parent and Purchaser shall have the right from and after the date
of this Agreement to negotiate with the lenders under such facility to seek
their approval for postponing such repayment and termination and that such
repayment and termination shall not be necessary if the lenders under such
facility agree such repayment and termination is not necessary. In addition,
from and after the time of the initial purchase of Shares under the Offer,
Parent shall either (i) make, or cause to be made, capital contributions to
Platform (either in the form of debt or equity) or (ii) arrange, or cause to be
arranged, credit facilities with lenders (or cause the Existing Facility to be
maintained), in each case so as to enable Platform to meet its working capital,
capital expenditure and operating expense requirements for the fiscal year
ending December 31, 2000 and beyond if the Effective Time shall not have
occurred by December 31, 2000. In fulfilling their obligations under this
Section 7.14, Parent and Purchaser may seek another credit facility for Platform
to replace the Existing Facility. Any such new credit facility would become
effective only concurrently with the initial purchase of Shares under the Offer.
Subject to the fiduciary duties and reasonable judgment of the Board of
Directors of Platform, Platform shall enter into any new credit facility that is
in compliance with the requirements of this Section 7.14 arranged by Parent and
Purchaser. If Parent and Purchaser cannot arrange a new credit facility or cause
the Existing Credit Facility to be maintained, in either case, in compliance
with the requirements of this Section 7.14, Parent and Purchaser must
nevertheless, at the time of the initial purchase of the Shares under the Offer,
comply with their obligations to provide Platform with funds under this Section
7.14. Neither the Existing Credit Facility, as it exists or as it may be
amended, nor any new credit facility will be used to finance the Transaction or
pay dividends or distributions to Platform shareholders prior to the Effective
Time, and under no circumstances shall Platform be required to take any action,
nor shall Parent or Purchaser request Platform to take any action, relating
thereto.
7.15 FINANCING AND CAPITALIZATION OF PARENT AND PURCHASER.
Immediately prior to the initial purchase of Shares under the Offer, Parent and
Purchaser shall cause ING Group, ING Bank Corporate Investments or one of their
Affiliates to provide Parent or Purchaser with $80 million in exchange for debt
or equity (or both) of Parent or Purchaser. Under no circumstances shall any
financing used to provide Parent or Purchaser with the means to finance the
Transactions contemplate or require the pledge or use of Assets of Platform or
any Platform Entity to finance the Transactions or pay dividends or
distributions to Platform shareholders prior to the Effective Time.
7.16 AVAILABILITY OF FUNDS. Following the initial purchase of
Shares under the Offer and prior to the Effective Time, Parent and Purchaser
shall maintain unencumbered cash funds in an amount sufficient to consummate the
Merger and otherwise comply with this Agreement.
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ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
8.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party to perform this Agreement and consummate the Merger
are subject to the satisfaction of the following conditions, unless waived by
both Parties pursuant to Section 10.6:
(A) SHAREHOLDER APPROVAL. The shareholders of Platform
shall have approved this Agreement, as and to the extent required by applicable
Law.
(B) LEGAL PROCEEDINGS. No court or Regulatory Authority
of competent jurisdiction shall be seeking or have enacted, issued, promulgated,
enforced or entered any Law or Order (whether temporary, preliminary or
permanent) or taken any other action which prohibits, restricts or makes illegal
consummation of the Transactions.
(C) PURCHASE OF SHARES IN THE OFFER. Parent, Purchaser or
their Affiliates shall have purchased Shares pursuant to the Offer; provided,
however, that neither Parent nor Purchaser may invoke this condition if
Purchaser shall have failed to purchase Shares pursuant to the Offer in breach
of its obligations under this Agreement or the Offer.
(D) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities required
for consummation of the Merger (other than Consents and filing, registration and
notice requirements which if not obtained, made or complied with are not
reasonably likely to have, individually or in the aggregate, a Platform Material
Adverse Effect or a material adverse effect on Parent or Vedior, as applicable)
shall have been obtained or made and shall be in full force and effect and all
waiting periods required by Law shall have expired or been earlier terminated
(other than waiting periods the failure to comply with is not reasonably likely
to have a Platform Material Adverse Effect or a material adverse effect on
Parent or Vedior, as applicable).
ARTICLE 9
TERMINATION
9.1 TERMINATION. Notwithstanding any other provision of this
Agreement (other than Sections 1.1 and 7.7(c)), and notwithstanding the approval
of this Agreement by the shareholders of Platform, this Agreement may be
terminated and the Merger abandoned at any time prior to the Effective Time:
(a) By mutual consent of Parent and Platform; or
(b) By either of Platform or Parent:
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(i) if the initial consummation of the Offer
shall not have occurred on or prior to September 29, 2000; provided, however,
that the right to terminate this Agreement under this Section 9.1(b)(i) shall
not be available to any Party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of Parent or
Purchaser, as the case may be, to purchase the Shares pursuant to the Offer on
or prior to such date; or
(ii) if any court or Regulatory Authority of
competent jurisdiction shall have issued any Order or taken any other action
(which Order or other action the Parties shall use their reasonable efforts to
lift), which permanently restrains, enjoins or otherwise prohibits the
acceptance for payment of, or payment for, Shares pursuant to the Offer or the
Merger, and such Order or other action shall have become final and
non-appealable; or
(c) By Platform:
(i) if Parent, Purchaser or any of their
Affiliates shall have failed to commence the Offer as provided in Section 1.1;
provided, that Platform may not terminate this Agreement pursuant to this
Section 9.1(c)(i) if such failure to have commenced the Offer shall have been
caused by (A) Platform's failure in any material respect to perform its
obligations under this Agreement or (B) facts or circumstances that constitute a
breach of any of Platform's representations or warranties contained in this
Agreement; or
(ii) if Parent or Purchaser shall have breached
in any material respect any of their respective representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform is reasonably likely to prevent Parent and Purchaser's
consummation of the Offer and is incapable of being cured or has not been cured
by the date that is 15 business days following written notice thereof to Parent
from Platform; or
(iii) if prior to Purchaser's purchase of Shares
pursuant to the Offer, the Board of Directors of Platform shall have finally
determined to approve, endorse or recommend an Acquisition Proposal (other than
the Acquisition Proposal contemplated by this Agreement) to Platform's
shareholders after complying with Section 7.10; and concurrently with or prior
to such termination, Platform or its designee has made payment of the
Termination Fee set forth in Section 10.2(b); provided, that notwithstanding
anything in this Agreement to the contrary, the termination of this Agreement
pursuant to and in compliance with this Section 9.1(c)(iii) shall not be deemed
to violate or breach other obligations of Platform under this Agreement; or
(d) By Parent or Purchaser:
(i) if prior to the purchase of any Shares
pursuant to the Offer, the Board of Directors or any committee thereto shall
have withdrawn, or modified or
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changed, or publicly proposed to withdraw, modify or change, in a manner adverse
to Parent or Purchaser (including by amendment of the Schedule 14D-9) its
approval or recommendations of the Offer, this Agreement or the Merger or shall
have approved, endorsed or recommended or publicly proposed to approve, endorse
or recommend an Acquisition Proposal, or if the Platform Board of Directors or
any committee thereof fails to reaffirm publicly and unconditionally its
recommendation to Platform's shareholders that they tender their Shares in the
Offer, which public reaffirmation must be made within ten days after Parent's
written request to do so (which request may be made at any time that a publicly
announced Acquisition Proposal is pending and not withdrawn) and must also
include the unconditional rejection of such Acquisition Proposal (to the extent
not previously withdrawn); or
(ii) if Platform shall have breached any of its
representations or warranties which breach would give rise to the failure of the
conditions set forth in clause (d) or clause (e) of Exhibit 1 hereto to be
satisfied or if, prior to consummation of the Offer, Platform shall have failed
to perform its covenants or other agreements contained in this Agreement which
failure to perform would give rise to the failure of the condition set forth in
clause (f) of Exhibit 1 hereto to be satisfied, which breach or failure to
perform is incapable of being cured or has not been cured by the date that is 15
business days following written notice thereof to Platform from Parent or
Purchaser.
9.2 EFFECT OF TERMINATION. In the event of the
termination and abandonment of this Agreement pursuant to Section 9.1, this
Agreement shall become void and have no effect, without any Liability on the
part of any Party or its Affiliates, agents, advisors or shareholders, except
that (i) the provisions of this Section 9.2 and Article 10 and Section 7.8(b)
shall survive any such termination and abandonment, and (ii) except as otherwise
provided herein, a termination shall not relieve the breaching Party from
Liability for a material breach of this Agreement.
9.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The
respective representations, warranties, obligations, covenants, and agreements
of the Parties shall not survive the Effective Time except for this Section 9.3,
Articles 1, 2, 3 and 10 and Sections 7.12, 7.13 and 7.14.
ARTICLE 10
MISCELLANEOUS
10.1 DEFINITIONS.
(a) Except as otherwise provided herein, the
capitalized terms set forth below shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended.
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"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"ACQUISITION PROPOSAL" shall mean any proposal or offer (in
each case, whether or not in writing and whether or not delivered to the
shareholders of Platform generally) to acquire in any manner, directly or
indirectly, all or a substantial portion of the Assets of Platform or a greater
than 20% equity interest in Platform or any of its Subsidiaries, whether by
merger, tender offer, exchange offer, sale of assets or similar transactions
involving Platform or any Subsidiary, division or operating or principal
business unit of Platform, other than pursuant to the transactions contemplated
by this Agreement.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person, (ii) any officer,
director, partner, employer, or direct or indirect beneficial owner of any 10%
or greater equity or voting interest of such Person; or (iii) any other Person
for which a Person described in clause (ii) acts in any such capacity.
"AGREEMENT" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and incorporated herein by
reference.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses and rights of such Person of every kind, nature, character and
description, whether real, personal or mixed, tangible or intangible, accrued or
contingent, or otherwise relating to or utilized in such Person's business,
directly or indirectly, in whole or in part, whether or not carried on the books
and records of such Person, and whether or not owned in the name of such Person
or any Affiliate of such Person and wherever located.
"BOARD OF DIRECTORS" shall mean the board of directors of
Platform.
"CERTIFICATE OF MERGER" shall mean the Certificate of Merger
to be executed by Platform and filed with the Secretary of State of the State of
Georgia relating to the Merger as contemplated by Section 2.1.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Confidentiality Agreement, dated May 21, 1999, as amended on March 31, 2000,
between Platform, Select Appointments (Holdings) Plc and Vedior.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person pursuant to
any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture, instrument, lease,
obligation, plan, practice, restriction, understanding, or undertaking of any
kind or character, or other document to which any Person is a party or that is
binding on any Person or its capital stock, Assets or business.
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"DEFAULT" shall mean (i) any breach or violation of, default
under, contravention of, or conflict with, any Contract, Law, Order, or Permit,
(ii) any occurrence of any event that with the passage of time or the giving of
notice or both would constitute a breach or violation of, default under,
contravention of, or conflict with, any Contract, Law, Order, or Permit, or
(iii) any occurrence of any event that with or without the passage of time or
the giving of notice would give rise to a right of any Person to exercise any
remedy or obtain any relief under, terminate or revoke, suspend, cancel, or
modify or change the current terms of, or renegotiate, or to accelerate the
maturity or performance of, or to increase or impose any Liability under, any
Contract, Law, Order, or Permit.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient air, surface
water, ground water, land surface, or subsurface strata) and which are
administered, interpreted, or enforced by the United States Environmental
Protection Agency and state and local agencies with jurisdiction over, and
including common law in respect of, pollution or protection of the environment,
including the Comprehensive Environmental Response Compensation and Liability
Act, as amended, 42 U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other Laws
relating to emissions, discharges, releases, or threatened releases of any
Hazardous Material, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of any
Hazardous Material.
"EQUITY RIGHTS" shall mean all arrangements, calls,
commitments, Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for, shares of the
capital stock of a Person or by which a Person is or may be bound to issue
additional shares of its capital stock or other Equity Rights.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA AFFILIATE" shall mean, with respect to any Person, any
corporation, trade or business, which, together with such Person, is a member of
a controlled group of corporations or a group of trades or businesses under
common control within the meaning of section 414 of the Internal Revenue Code.
"EXHIBIT 1" shall mean the Exhibit so marked, a copy of which
is attached to this Agreement. Such Exhibit is hereby incorporated by reference
herein and made a part hereof, and may be referred to in this Agreement and any
other related instrument or document without being attached hereto.
"EXHIBIT 2" shall mean the Exhibit so marked, a copy of which
is attached to this Agreement. Such Exhibit is hereby incorporated by reference
herein and made a part hereof, and may be referred to in this Agreement and any
other related instrument or document without being attached hereto.
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"EXHIBIT 3" shall mean the Exhibit so marked, a copy of which
is attached to this Agreement. Such Exhibit is hereby incorporated by reference
herein and made a part hereof, and may be referred to in this Agreement and any
other related instrument or document without being attached hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
"GUARANTORS" means collectively SANA and Vedior, each of which
is a party to this Agreement.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic substance (as
those terms are defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal, or
encapsulation pursuant to the requirements of governmental authorities and any
polychlorinated biphenyls).
"HSR ACT" shall mean Section 7A of the Xxxxxxx Act, as added
by Title 11 of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"INTELLECTUAL PROPERTY" shall mean copyrights, patents,
trademarks, service marks, service names, trade names, applications therefor,
technology rights and licenses, computer software (including any source or
object codes therefor or documentation relating thereto), trade secrets,
franchises, know-how, inventions, and other intellectual property rights.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated thereunder.
"KNOWLEDGE" as used with respect to any Platform Entity
(including references to any such Platform Entity being aware of a particular
matter) shall mean the actual knowledge after reasonable inquiry of Xxxxx X.
Xxxxxx or Xxxxx X. Xxxxxxxx, Xx., of Platform and as used with respect to
Vedior, any Parent Entity or Purchaser (including references to Vedior, such
Parent Entity or Purchaser being aware of a particular matter) shall mean the
actual knowledge after reasonable inquiry of Xxxxxxx Xxxxxx Xxxxxx or C.K.
Xxxxxxx Xxxxx of Vedior.
"LAW" shall mean any code, law (including common law),
ordinance, regulation, reporting or licensing requirement, rule, or statute
applicable to a Person or its Assets, Liabilities, or business, including those
promulgated, interpreted or enforced by any Regulatory Authority.
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"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or expense
(including costs of investigation, collection and defense), claim, deficiency,
guaranty or endorsement of or by any Person (other than endorsements of notes,
bills, checks, and drafts presented for collection or deposit in the ordinary
course of business) of any type, whether accrued, absolute or contingent,
liquidated or unliquidated, matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title retention
or other security arrangement, or any adverse right or interest, charge, or
claim of any nature whatsoever of, on, or with respect to any property or
property interest, other than (i) Liens for current Taxes not yet due and
payable, and (ii) Liens which do not materially impair the use of or title to
the Assets subject to such Lien.
"LITIGATION" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, governmental or other
examination or investigation, hearing, administrative or other proceeding
relating to or affecting a Party, its business, its Assets (including Contracts
related to it), or the Transactions.
"OPERATING PROPERTY" shall mean any property owned, leased, or
operated by the Party in question or by any of its Subsidiaries, and, where
required by the context, includes the owner or operator of such property, but
only with respect to such property.
"ORDER" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or award, ruling,
or writ of any federal, state, local or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"PARENT ENTITIES" shall mean, collectively, Parent and all
Parent Subsidiaries.
"PARENT SUBSIDIARIES" shall mean the Subsidiaries of Parent,
which shall include any corporation or other organization acquired as a
Subsidiary of Parent in the future and held as a Subsidiary by Parent at the
consummation of the Offer or the Effective Time.
"PARTY" shall mean, on the one hand, Parent, Purchaser and the
Guarantors and, Platform on the other hand, and "PARTIES" shall mean all of
Platform, Parent, the Guarantors and Purchaser.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing, franchise,
license, notice, permit, or right to which any Person is a party or that is or
may be binding upon or inure to the benefit of any Person or its securities,
Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial
or governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited
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partnership, limited liability company, trust, business association, group
acting in concert, or any person acting in a representative capacity.
"PLATFORM COMMON STOCK" shall mean the common stock, no par
value per share, of Platform.
"PLATFORM DISCLOSURE MEMORANDUM" shall mean the written
information entitled "Platform, Inc. Disclosure Memorandum" delivered on or
prior to the date of this Agreement to Parent describing in reasonable detail
the matters contained therein.
"PLATFORM ENTITIES" shall mean, collectively, Platform and all
Platform Subsidiaries.
"PLATFORM FINANCIAL STATEMENTS" shall mean (i) the
consolidated balance sheets (including related notes and schedules, if any) of
Platform as of December 31, 1999 and 1998, and the related statements of income,
changes in shareholders' equity, and cash flows (including related notes and
schedules, if any) for each of the three fiscal years ended December 31, 1999,
1998 and 1997, as filed by Platform in SEC Documents, and (ii) the consolidated
balance sheets of Platform (including related notes and schedules, if any) and
related statements of income, changes in shareholders' equity, and cash flows
(including related notes and schedules, if any) included in SEC Documents filed
with respect to periods ended subsequent to December 31, 1999.
"PLATFORM MATERIAL ADVERSE EFFECT" shall mean an event, change
or occurrence which, individually or together with any other event, change or
occurrence, (A) has a material adverse impact on (i) the condition (financial or
otherwise), business, or results of operations of Platform and its Subsidiaries,
taken as a whole, or (ii) the ability of Platform to perform its obligations
under this Agreement or to consummate the Merger or the other transactions
contemplated by this Agreement or (B) is reasonably likely to prevent the
consummation of the Offer and the Merger or delay the consummation of the Offer
beyond September 29, 2000, provided that "Material Adverse Effect" shall not be
deemed to include the impact of (a) actions and omissions of Platform (or any of
its Subsidiaries) taken with the prior informed written Consent of Parent in
contemplation of the transactions contemplated hereby, (b) the effects of
compliance with this Agreement on the operating performance of Platform,
including expenses incurred by Platform in connection with consummation of the
Transactions, (c) changes, events or occurrences in the United States securities
markets which are not specific to Platform, (d) changes, events or occurrences
in the world economy which are not specific to Platform, (e) changes, events or
occurrences relating to the executive search, temporary staffing and IT
consulting industries in general, and not specifically to Platform, (f) any
adverse change in the price of Platform Common Stock, as quoted on the American
Stock Exchange, and (g) failure to obtain consents, or claims with respect
thereto, due to the implementation or proposed implementation of Section 3.6
with respect to the Platform Stock Plans.
"PLATFORM RIGHTS" shall mean the preferred stock purchase
rights issued pursuant to the Platform Rights Agreement.
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"PLATFORM RIGHTS AGREEMENT" shall mean that certain
Shareholder Protection Rights Agreement, dated as of June 20, 1999, as the same
may be amended from time to time, between Platform and SunTrust Bank, Atlanta,
as Rights Agent.
"PLATFORM STOCK PLANS" shall mean the existing stock option
and other stock-based compensation plans of Platform designated as follows: the
1997 Amended and Restated Stock Option Plan, as amended, the Platform Resources,
Inc. 1996 Equity Compensation Plan, and the Stock Option Agreements with Xxxxx
X. Xxxx and Xxxxx Xxxxx.
"PLATFORM SUBSIDIARIES" shall mean the Subsidiaries of
Platform, which shall include the Platform Subsidiaries described in Section 4.4
and any corporation or other organization acquired as a Subsidiary of Platform
in the future and held as a Subsidiary by Platform at the Effective Time.
"REGULATORY AUTHORITIES" shall mean, collectively, the SEC,
the American Stock Exchange, the Federal Trade Commission, the United States
Department of Justice, and all other international, federal, state, county,
local or other governmental or regulatory agencies, authorities (including
self-regulatory authorities), instrumentalities, commissions, boards or bodies
having jurisdiction over the Parties and their respective Subsidiaries.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative engaged by a
Person.
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed, or
required to be filed, by a Party or any of its Subsidiaries with any Regulatory
Authority pursuant to the Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of 1940,
as amended, the Trust Indenture Act of 1939, as amended, and the rules and
regulations of any Regulatory Authority promulgated thereunder.
"SUBSIDIARIES" shall mean all those corporations,
associations, or other business entities of which the entity in question either
(i) owns or controls 50% or more of the outstanding equity securities either
directly or through an unbroken chain of entities as to each of which 50% or
more of the outstanding equity securities is owned directly or indirectly by its
parent (provided, there shall not be included any such entity the equity
securities of which are owned or controlled in a fiduciary capacity), (ii) in
the case of partnerships, serves as a general partner, (iii) in the case of a
limited liability company, serves as a managing member, or (iv) otherwise has
the ability to elect a majority of the directors, trustees or managing members
thereof.
"SUPERIOR PROPOSAL" shall mean with respect to Platform, any
Acquisition Proposal made by a Person other than Parent, Purchaser or any of
their respective Affiliates which is on terms which the Board of Directors of
Platform in good faith concludes (a) would, if
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consummated, result in a transaction that is more favorable to its shareholders
than the transactions contemplated by this Agreement and (b) is reasonably
capable of being completed.
"SURVIVING CORPORATION" shall mean Platform as the surviving
corporation resulting from the Merger.
"TAX RETURN" shall mean any report, return, information
return, or other information required to be supplied to a taxing authority in
connection with Taxes, including any return of an affiliated or combined or
unitary group that includes a Party or its Subsidiaries.
"TAX" or "TAXES" shall mean any federal, state, county, local,
or foreign taxes, fees or other assessments, including, income, excise, sales,
use, transfer, payroll, franchise, real property or personal property, including
any interest and penalties thereon or with respect thereto.
(b) The terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
Appointment Date Section 6.1
Avoidance Provisions Section 10.16
Certificates Section 3.4(a)
Closing Section 2.3
Credit Agreement Section 7.14
Designees Section 7.7(a)
Effective Time Section 2.2
Existing Facility Section 7.14
Expiration Date Section 1.1(a)
Fully Diluted Shares Exhibit 1
Guaranteed Obligations Section 10.16
Indemnified Party Section 7.13(b)
Independent Directors Section 7.7(c)
Merger Section 2.1
Merger Consideration Section 3.1(b)
Minimum Tender Condition Exhibit 1
Offer Section 1.1(a)
Offer Documents Section 1.1(b)
Offer Price Section 1.1(a)
Option Payment Section 3.6(b)
Paying Agent Section 3.4(a)
Platform 401(k) Plan Section 7.12
Platform Articles of Incorporation Section 4.1(a)
Platform Benefit Plans Section 4.14(a)
Platform Bylaws Section 4.1(b)
Platform Contracts Section 4.15
Platform Option Section 3.6
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Platform Option Value Section 3.6
Platform SEC Reports Section 4.5(a)
Purchaser Common Stock Section 5.4(a)
Proxy Statement Section 7.1(a)(ii)
SANA Preamble
Schedule 14D-9 Section 1.2(b)
SEC Section 1.1(a)
Second Installment Date Section 3.6(b)
Shareholders Preamble
Shareholders' Meeting Section 7.1(a)(i)
Shares Section 1.1(a)
Support Agreements Preamble
Takeover Laws Section 4.18
Termination Fee Section 10.2(b)
Transactions Section 1.2(a)
Vested In The Money Platform Option Value Section 3.6(a)
Vedior Preamble
(c) Any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation."
10.2 EXPENSES.
(a) Except as otherwise provided in this Section 10.2,
each of the Parties shall bear and pay all direct costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated hereunder,
including filing, registration and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment bankers,
accountants, and counsel.
(b) If (A) Parent or Purchaser terminates this Agreement
under Section 9.1(d)(i), or Platform terminates this Agreement pursuant to
Section 9.1(c)(iii) or (B) Platform terminates this Agreement pursuant to
Section 9.1(b)(i) or Parent or Purchaser terminates this Agreement pursuant to
Section 9.1(b)(i) and in the case of a termination under Section 9.1(b)(i)(x) at
any time after the date of this Agreement and prior to such termination an
Acquisition Proposal (other than the Acquisition Proposal contemplated by this
Agreement) shall have been publicly announced or otherwise publicly communicated
to the shareholders of Platform generally and (y) prior to the first anniversary
of such termination, Platform shall enter into a definitive agreement with
respect to an Acquisition Proposal or an Acquisition Proposal is consummated,
then Platform shall pay to Purchaser, or cause to be paid, (1) in the case of a
termination of this Agreement by Parent or Purchaser pursuant to Section
9.1(d)(i), not later than one business day following such termination, (2) in
the case of a termination by Platform pursuant to Section 9.1(c)(iii), prior to
or concurrently with such termination, or (3) in the case of a termination of
this Agreement by Platform pursuant to Section 9.1(b)(i) or by Parent or
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Purchaser pursuant to Section 9.1(b)(i), not later than one business day
following the earlier of the entering into of a definitive agreement with
respect to, or the consummation of, an Acquisition Proposal prior to the first
anniversary of such termination, as applicable, a termination fee, in cash, by
wire transfer of immediately available funds to an account designated by
Purchaser, in an amount equal to the sum of (x) $5.7 million plus (y)
out-of-pocket expenses incurred by Parent or Purchaser exclusively in connection
with the transactions contemplated by this Agreement not to exceed $500,000 in
the aggregate (such sum is referred to herein as the "Termination Fee"). Except
for nonpayment of the amount set forth in this Section 10.2(b) and except as
provided below, Parent and Purchaser hereby agree that, upon any termination of
this Agreement pursuant to Section 9.1(c)(iii) or 9.1(d)(i), in no event shall
Parent or Purchaser be entitled to seek or to obtain any recovery or judgment
against Platform or any of the Platform Entities or any of their respective
Assets, or against any of their respective Affiliates, agents, advisors or
shareholders relating to the Transactions, and in no event shall Parent or
Purchaser be entitled to seek or obtain any other amount relating to the
Transactions; provided, however, that neither the termination of this Agreement
pursuant to Section 9.1(c)(iii) or 9.1(d)(i) nor receipt of the fee set forth in
this Section 10.2(b) shall preclude any remedy in favor of Parent or Purchaser
against Platform relating to a material breach of Section 7.10 of this Agreement
by Platform.
10.3 BROKERS AND FINDERS. Except for Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation as to Platform and except for Xxxxxx X. Xxxxx & Co. as to
Parent and Purchaser, each of the Parties represents and warrants that neither
it nor any of its officers, directors, employees, or Affiliates has employed any
broker or finder or incurred any Liability for any financial advisory fees,
investment bankers' fees, brokerage fees, commissions, or finders' fees in
connection with this Agreement or the Transactions. In the event of a claim by
any broker or finder based upon his or its representing or being retained by or
allegedly representing or being retained by Platform or by Parent or Purchaser,
each of Platform, Parent and Purchaser, as the case may be, agrees to indemnify
and hold the other Party harmless of and from any Liability in respect of any
such claim.
10.4 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement constitutes the entire agreement between the Parties with
respect to the transactions contemplated hereunder and supersedes all prior
arrangements or understandings with respect thereto, written or oral (except, as
to Section 7.8(b), for the Confidentiality Agreement). Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
Parties or their respective successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, other than as provided in
Sections 7.12(d) and 7.13.
10.5 AMENDMENTS. To the extent permitted by Law, and subject to the
provisions and limitations of Section 7.7, this Agreement may be amended by a
subsequent writing signed by each of the Parties upon the approval of each of
the Parties, whether before or after shareholder approval of this Agreement has
been obtained, provided, that after any such approval by the holders of Platform
Common Stock, there shall be made no amendment that pursuant to Section
14-2-1103 of the GBCC requires further approval by such shareholders, unless
such an amendment is approved by such shareholders.
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10.6 WAIVERS.
(a) Prior to or at the Effective Time, and subject to the
provisions and limitations of Section 1.1, Parent and Purchaser, acting through
their respective Boards of Directors, chief executive officers or other
authorized officers, shall have the right to waive any Default in the
performance of any term of this Agreement by Platform, to waive or extend the
time for the compliance or fulfillment by Platform of any and all of its
obligations under this Agreement, and to waive any or all of the conditions
precedent to the obligations of Parent or Purchaser, as the case may be, under
this Agreement (including the conditions set forth in Exhibit 1), except any
condition which, if not satisfied, would result in the violation of any Law. No
such waiver shall be effective unless in writing signed by a duly authorized
officer of Parent or Purchaser, as the case may be.
(b) Prior to or at the Effective Time, and subject to the
provisions and limitations of Sections 1.1 and 7.7, Platform, acting through its
Board of Directors, chief executive officer or other authorized officer, shall
have the right to waive any Default in the performance of any term of this
Agreement by Parent or Purchaser, to waive or extend the time for the compliance
or fulfillment by Parent or Purchaser of any and all of its obligations under
this Agreement, and to waive any or all of the conditions precedent to the
obligations of Platform under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of Platform.
(c) The failure of any Party at any time or times to
require performance of any provision hereof shall in no manner affect the right
of such Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
10.7 ASSIGNMENT. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party, except that Parent and
Purchaser may assign all or any of their rights hereunder to Vedior or any
majority-owned Subsidiary of Vedior or, following the consummation of the Offer,
Parent, provided that no such assignment shall relieve the assigning party of
its obligation hereunder. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
10.8 NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered as of the date so delivered:
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Platform: Acsys, Inc.
00 00xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Copy to Counsel: Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
Parent and Purchaser: Xxxxxxx B.V.
Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Telephone Number: (000) 00-00-000-0000
Telecopy Number: (000) 00-00-000-0000
Attention: C. K. Xxxxxxx Xxxxx
Copy to Counsel: Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
SANA: Select Appointments North America Inc.
00 Xxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: C. K. Xxxxxxx Xxxxx
Copy to Counsel: Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
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Vedior: Vedior N.V.
Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Telephone Number: (000) 00-00-000-0000
Telecopy Number: (000) 00-00-000-0000
Attention: C. K. Xxxxxxx Xxxxx
Copy to Counsel: Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxx
10.9 GOVERNING LAW. Except to the extent governed by the GBCC, this
Agreement shall be governed by and construed in accordance with the Laws of the
State of New York, without regard to any applicable conflicts of Laws.
10.10 DISPUTE RESOLUTION.
(a) Subject to the following sentence in this Section
10.10(a) and to the provisions set forth in Section 10.10(b) below, each Party
consents to submit to the exclusive jurisdiction of the United States District
Court for the Southern District of New York or, in the event (but only in the
event) such court does not have subject matter jurisdiction, of the courts of
the State of New York sitting in the County of New York for any disputes,
controversies or claims arising out of or relating to this Agreement and the
Transactions. Each of Parent, Purchaser and the Guarantors additionally (and not
in lieu of submission to the jurisdiction of the courts identified in the
preceding sentence), and solely at the election of Platform, consents to submit
to the jurisdiction of the courts in The Netherlands for any disputes,
controversies or claims arising out of or relating to this Agreement and the
Transactions. Except as provided in Section 10.10(b) below,each Party agrees not
to commence any action, suit or proceeding relating thereto except in such
courts and further agrees that service of any process, summons, notice or
document by U.S. registered mail to the address set forth in Section 10.8 shall
be effective service of process for any action, suit or proceeding brought
against such Party in any such court. Each Party unconditionally waives any
objection to personal jurisdiction or the laying of venue with respect to any
action, suit or proceeding arising out of this Agreement or the Transactions in
such courts, and waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(b) As an alternative to its rights to litigate any
dispute, controversy or claim arising out of or relating to this Agreement or
the Transactions in accordance with Section 10.10(a) above and except as
provided below, Platform (and not any other Party hereto) shall have the right
(but not the obligation), if litigation has not already commenced, to present
such dispute, controversy or claim in arbitration in accordance with the
International Arbitration Rules
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of the American Arbitration Association (to the extent such rules are not
inconsistent with the provisions of this Section 10.10), and the other Parties
hereto agree to submit to such arbitration. If Platform exercises its right to
commence arbitration, it shall do so with respect to all its claims against all
Parties, and shall not initiate litigation against another Party. The
arbitration shall be held before a panel of three arbitrators, one to be
selected by Platform, one to be selected by Parent, and the third by agreement
of the two arbitrators selected by Platform and Parent. The arbitration panel
shall have jurisdiction to decide any and all issues presented to it that arise
out of or relate to this Agreement or the Transactions, including the issue of
whether or not the arbitration panel has jurisdiction to decide any particular
dispute, controversy or claim. The arbitration shall be held in the City of New
York, New York. The arbitration proceedings, submissions and award shall be in
English, and the governing Law shall be as set forth in Section 10.9 above. The
parties consent to the jurisdiction of the courts identified in the Section
10.10(a) above for all purposes in connection with arbitration, including: (a)
enforcement of the arbitration award; and (b) issuance of provisional remedies
to protect rights, interests, assets or property, including but not limited to
temporary or preliminary injunctive relief, to ensure ultimate satisfaction of
the arbitration award. The Parties may, without inconsistency with this
agreement to arbitrate, seek from any court identified in Section 10.10(a) above
any injunctive or equitable remedy or other interim measures or provisional
remedies necessary to prevent irreparable injury pending the establishment of
the arbitral tribunal and until the arbitral tribunal's final award has been
satisfied. The Parties agree that the award made by the arbitrator tribunal
shall be final and binding on the Parties, and they waive any right to appeal
the arbitral award, to the extent an appeal may be lawfully waived.
Notwithstanding anything to the contrary in this Section 10.10, Platform shall
not be permitted to initiate arbitration if other Parties have already initiated
litigation relating to the Transactions, provided that Vedior has appeared as a
party to that litigation and remains a party at all times (including with
respect to counterclaims or separate claims that would otherwise be eligible for
arbitration).
10.11 AGENT FOR SERVICE OF PROCESS. Each of Parent, Purchaser, and
the Guarantors hereby irrevocably designates, appoints, and empowers CT
Corporation System, at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
address where such representative office may be located in New York City, New
York, and its successors and assigns, as its true and lawful agent for service
of process to receive and accept on its behalf service of process in any
actions, suits or proceedings arising out of or relating to this Agreement and
the Transactions. Each of Parent, Purchaser and the
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Guarantors agrees that the failure of such process agent to give any notice of
any service of process to it shall not impair or affect the validity of service
upon such agent or of any judgment based thereon.
10.12 COUNTERPARTS. This Agreement may be executed in two or, more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
10.13 CAPTIONS; ARTICLES AND SECTIONS. The captions contained in
this Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to particular Articles or
Sections shall mean and refer to the referenced Articles and Sections of this
Agreement.
10.14 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any party, whether under
any rule of construction or otherwise. No party to this Agreement shall be
considered the draftsman. The parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of all parties
hereto.
10.15 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
10.16 GUARANTEES. Each of the Guarantors hereby, irrevocably,
unconditionally and absolutely, guarantees the due and punctual payment and
performance when due of all of the obligations of Parent and Purchaser under
this Agreement (collectively referred to as the "Guaranteed Obligations"). This
Guaranty is a guaranty of payment, and not of collection, and a direct
obligation of each Guarantor. Accordingly, Platform shall not be obligated or
required before enforcing this Guaranty against any Guarantor: (a) to pursue any
right or remedy Platform may have against Parent, Purchaser or any other
Guarantor or commence any suit or other proceeding against Parent, Purchaser or
any other Guarantor in any court or other tribunal; (b) to make any claim in a
liquidation or bankruptcy of Parent, Purchaser or any other Guarantor; or (c) to
make demand of Parent, Purchaser or any other Guarantor. In this connection,
each of the Guarantors hereby waives the right of such Guarantor to require any
holder of the Guaranteed Obligations to take action against Parent or Purchaser
as provided by applicable Law; provided, however, that each of the Guarantors
may raise any defense or argument (other than defenses or arguments relating to
the due authorization, execution, delivery and enforceability or validity of
this Agreement as it relates to Parent or
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Purchaser) available to Parent or Purchaser under this Agreement and shall have
no obligation to pay or perform if Parent or Purchaser would not be obligated to
pay or perform under the terms of this Agreement, and in this connection, it
shall not be a defense to payment or performance by a Guarantor that this
Agreement or the Guaranteed Obligations have not been duly authorized or
incurred by Parent or Purchaser or that this Agreement or the Guaranteed
Obligations are unenforceable or invalid obligations of Parent or Purchaser.
The obligations of each of the Guarantors hereunder shall not be
released, discharged, suspended or terminated by any invalidity or
unenforceability of any of the obligations of the Parent or Purchaser hereunder.
All sums payable by Vedior hereunder shall be paid in full without
deduction for any withholding Tax or liability imposed by any applicable Law,
governmental agency or authority located outside of the United States, and in
the event that Vedior is required by such applicable Law or by such governmental
agency or authority to make any such deduction or withholding Tax, Vedior shall
pay to Platform such additional amount as will result in the receipt by Platform
of the full amount payable hereunder had such deduction or withholding not
occurred or been required.
It is the intent of each Guarantor that such Guarantor's maximum
liability hereunder shall be, but not in excess of, the maximum amount which
would not otherwise cause the Guaranteed Obligations to be avoidable or
unenforceable against the Guarantor under (i) Section 548 of the Bankruptcy Code
of 1978, as amended, or (ii) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such case or proceeding by virtue of
Section 544 of the Bankruptcy Code (such laws, acts or statutes referred to
herein as "Avoidance Provisions"). To the end set forth in this paragraph, but
only to the extent that the Guaranteed Obligations would otherwise be subject to
avoidance under the Avoidance Provisions if a Guarantor is not deemed to have
received valuable consideration, fair value or reasonably equivalent value for
the Guaranteed Obligations, or if the Guaranteed Obligations would render a
Guarantor insolvent, or leave a Guarantor with an unreasonably small capital to
conduct its business, or cause the Guarantor to have incurred debts (or to have
intended to have incurred debts) beyond its ability to pay such debts as they
mature, in each case as of the time any of the Guaranteed Obligations are deemed
to have been incurred under the Avoidance Provisions, the maximum Guaranteed
Obligations for which a Guarantor shall be liable hereunder shall be reduced to
that amount which, after giving effect thereto, would not cause the Guaranteed
Obligations, as so reduced, to be subject to avoidance under the Avoidance
Provisions.
Notwithstanding anything to the contrary in this Agreement, (i) the sum
of the aggregate amount payable by Vedior hereunder and the aggregate amount
payable by SANA hereunder shall not exceed $80 million (provided, however, that
this limitation shall in no way limit the liability of Parent or Purchaser under
this Agreement), and (ii) the obligations of Vedior and SANA hereunder shall
terminate immediately prior to the satisfaction of the provisions of Sections
7.14 and 7.15.
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IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf by its duly authorized officers as of the
day and year first above written.
XXXXXXX B.V.
By: /s/ A. W. M. Xxxxxx
------------------------------------------
A. W. M. Xxxxxx
Managing Director
PLATFORM PURCHASER INC.
By: /s/ C. K. Xxxxxxx Xxxxx
------------------------------------------
C. K. Xxxxxxx Xxxxx
President
ACSYS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
SELECT APPOINTMENTS NORTH AMERICA INC.
By: /s/ C. K. Xxxxxxx Xxxxx
------------------------------------------
C. K. Xxxxxxx Xxxxx
Assistant Secretary
VEDIOR N.V.
By: /s/ C. K. Xxxxxxx Xxxxx
------------------------------------------
C. K. Xxxxxxx Xxxxx
Chief Financial Officer
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EXHIBIT 1
CONDITIONS TO THE OFFER
The capitalized terms used in this Exhibit 1 have the meanings assigned to them
in the Agreement and Plan of Merger to which this Exhibit 1 is attached except
that the term Merger Agreement shall refer to the attached Agreement and Plan of
Merger together with this Exhibit 1.
Purchaser shall not be required to accept for payment or, subject to
any applicable rules and regulations of the SEC, including Rule 14e-1(c) under
the 1934 Act (relating to Purchaser's obligation to pay for or return tendered
Shares promptly after termination or withdrawal of the Offer), pay for any
Shares tendered pursuant to the Offer, and may postpone the acceptance for
payment or, subject to the restriction referred to above, payment for any Shares
tendered pursuant to the Offer, and may amend or terminate the Offer (subject to
the provisions of Section 1.1 of the Merger Agreement) as to any Shares not then
paid for if (i) there shall not have been validly tendered and not withdrawn,
prior to the expiration of the Offer, that number of Shares which, together with
any Shares beneficially owned (within the meaning of Rule 13d-3 under the 0000
Xxx) by Parent, Purchaser, Vedior and their respective Affiliates, would
represent at least a majority of the Fully Diluted Shares (as defined below)
(the "Minimum Tender Condition"), (ii) any waiting period under the HSR Act
applicable to the purchase of Shares pursuant to the Offer shall not have
expired or been terminated, or (iii) at any time on or after the date of the
Merger Agreement and prior to the initial time of acceptance for payment of
Shares or the payment therefor, any of the following conditions exists:
(a) (x) there shall have been any action taken by any Regulatory
Authority, or any statute, rule, regulation or order, proposed, sought,
promulgated, enacted, entered, enforced, issued, amended or deemed applicable by
any Regulatory Authority to Parent, Purchaser, Vedior, Platform any of their
respective Subsidiaries or Affiliates, the Offer or the Merger (other than the
application of the waiting period provisions of the HSR Act to the Offer or the
Merger), that would or is reasonably likely, directly or indirectly, to (i) make
the acceptance for payment of, or payment for or purchase of all or a
substantial number of the Shares pursuant to the Offer illegal, or otherwise
restrict in a manner adverse to Parent or Vedior or prohibit the making of the
Offer or the consummation of the Offer or the Merger, (ii) result in a material
delay in or restrict the ability of Purchaser or render Purchaser unable to
accept for payment, pay for or purchase all or a substantial number of the
Shares pursuant to the Offer or to effect the Merger, (iii) impose material
limitations on the ability of Parent, Purchaser, Vedior or any of their
respective Subsidiaries or Affiliates to acquire or hold, transfer or dispose
of, or effectively to exercise all rights of ownership of, all or a substantial
number of the Shares, including without limitation the right to vote the Shares
purchased by it pursuant to the Offer on an equal basis with all other Shares on
all matters properly presented to the shareholders of Platform, (iv) require the
divestiture by Parent, Purchaser, Vedior or any
63
of their respective Subsidiaries of any Shares, or require Purchaser, Parent,
Vedior, Platform or any of their respective Subsidiaries or Affiliates to
dispose of or hold separate all or any material portion of their respective
businesses, assets or properties or impose any material limitations on the
ability of any of such entities to conduct their respective businesses or own
such Assets or Shares or on the ability of Parent, Purchaser, Vedior or their
respective Subsidiaries or Affiliates to conduct the business of Platform and
its Subsidiaries and own Assets or Platform and its Subsidiaries or Affiliates,
in each case taken as a whole, or (v) impose any material limitations on the
ability of Parent, Purchaser, Vedior or any of their respective Subsidiaries or
Affiliates effectively to control the business or operations of Platform,
Parent, Purchaser, Vedior or any of their respective Subsidiaries or Affiliates;
(y) there shall have been instituted or pending any
Litigation, by any Regulatory Authority, challenging the making of the Offer or
the consummation of the Merger, or seeking, directly or indirectly, any of the
consequences referred to in clause (i) through (v) in subclause (x) above that,
in the reasonable judgment of Parent, has a reasonable probability of success;
or
(z) there shall have been threatened any action, proceeding or
counterclaim by any Regulatory Authority, challenging the making of the Offer or
the acquisition by Purchaser of the Shares pursuant to the Offer or the
consummation of the Merger, or seeking, directly or indirectly, any of the
consequences referred to in clauses (i) through (v) in subclause (x) above that,
in the reasonable judgment of Parent, has a reasonable probability of success;
or
(b) this Agreement shall have been terminated in accordance with
its terms; or
(c) since the date of this Agreement there shall have occurred any
event, change, effect or development that, individually or when considered
together with any other event, change, effect or development, has had or would
reasonably be expected to have a Platform Material Adverse Effect, which has not
been cured prior to the expiration of the Offer; or
(d) the representations and warranties of Platform set for in the
Merger Agreement (except for the representations and warranties in Sections
4.2(a)-(d), 4.3 (other than the last sentence of Section 4.3(a)), 4.4 (other
than the fifth sentence of Section 4.4), 4.18, 4.19, 4.20 and 4.21 of the Merger
Agreement) shall not be true and accurate in all respects as of the date made
and as of the date of consummation of the Offer as though made on or as of such
date (except for those representations and warranties that address matters only
as of a particular date or only with respect to a specific period of time which
need only be true and accurate as of such date or with respect to such period)
(in each case without for this purpose giving effect to qualifications or
limitations as to materiality or the absence of a Platform Material Adverse
Effect contained in such representations and warranties) except for such failure
to be true and correct as would not, individually or in the aggregate,
reasonably be expected to have a Platform Material Adverse Effect and the
untruth or inaccuracy shall not have been cured prior to the expiration of the
Offer; or
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64
(e) the representations and warranties of Platform set forth in
Section 4.2(a)-(d), 4.3 (other than the last sentence of Section 4.3(a)), 4.4
(other than the fifth sentence of Section 4.4), 4.18. 4.19, 4.20 and 4.21 of the
Merger Agreement shall not be true and accurate in all material respects as of
the date made and as of the date of the consummation of the Offer as though made
on or as of such date and the untruth or inaccuracy shall not have been cured
prior to the expiration of the Offer; or
(f) Platform shall have failed to perform in any material respect
any material obligation or to comply in any material respect with any material
agreement or material covenant of Platform to be performed or complied with by
it under the Merger Agreement and the breach or failure shall not have been
cured prior to the expiration of the Offer; or
(g) the Board of Directors or any committee thereof (i) shall have
withdrawn, or modified or changed in a manner adverse to Parent or Purchaser
(including by amendment of the Schedule 14D-9) its approval or recommendation of
the Merger Agreement or the transactions contemplated hereby, including the
Offer or the Merger, (ii) recommended, endorsed or approved an Acquisition
Proposal, or (iii) shall have adopted any resolution to effect any of the
foregoing.
The term "Fully Diluted Shares" means, as of any date, the Shares
outstanding, together with any Shares which Platform may be required to issue
after giving effect to the exercise or conversion of all Equity Rights
exercisable or convertible into Shares.
The foregoing conditions are for the sole benefit of Parent and
Purchaser and may (except for the Minimum Tender Condition, which cannot be
waived without the consent of Platform, Parent and Purchaser) be waived by
Parent or Purchaser in whole or in part, at any time and from time to time, in
the sole discretion of Parent or Purchaser. The failure by Parent or Purchaser
at any time to exercise any of the foregoing rights shall not be deemed a waiver
of any right and each right shall be deemed an ongoing right which may be
asserted at any time and from time to time.
3
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EXHIBIT 2
April 16, 2000
Vedior N.V.
Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Ladies and Gentlemen:
This letter is to confirm our agreement regarding all of the shares of
common stock, $0.01 par value per share (the "Shares") of Acsys, Inc., a Georgia
corporation (the "Company") held by each of the undersigned shareholders of the
Company (each a "Shareholder" and collectively the "Shareholders"). In order to
induce Vedior N.V., a Dutch company ("Vedior"), Select Appointments North
America, Inc., a Delaware corporation ("SANA"), Xxxxxxx B.V., a Netherlands
company ("Parent") and Platform Purchaser Inc., a Georgia corporation ("Buyer")
to enter into an Agreement and Plan of Merger, to be dated as of the date hereof
among the Company, Parent, Buyer, Vedior and SANA (the "Merger Agreement"), the
parties hereto agree as follows:
Subject to the terms and conditions hereof, on or prior to the
expiration date of the tender offer to be commenced by Buyer pursuant to the
Merger Agreement (the "Tender Offer"), the Shareholders will tender to Buyer in
the Tender Offer, or cause to be tendered in the Tender Offer, all of the Shares
held by the Shareholders, including Shares acquired through the exercise of
options, immediately prior to the expiration of the Tender Offer. If a
Shareholder withdraws any tender of such Shares in the Tender Offer, such
Shareholder shall immediately, but in no event later than the expiration date of
the Tender Offer, re-tender such Shares to Buyer in the Tender Offer.
The Shareholders hereby agree not to sell, transfer or encumber the
Shares (except in the Tender Offer) during the term of this letter agreement.
Each Shareholder hereby represents and warrants as to the Shares that
(i) such Shareholder is the sole owner of and has full right, power and
authority to sell and vote such Shares, or if such Shareholder is not the sole
owner, such Shareholder has the full right, power and authority to sell such
Shares, and in either event, this letter agreement is a valid and binding
agreement, enforceable against such Shareholder, in accordance with its terms;
(ii) neither the execution of this letter agreement nor the consummation by such
Shareholder of the transactions contemplated hereby will constitute a violation
of, or conflict with, or default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which such Shareholder
is a party or by which such Shareholder or such Shares are bound; and (iii)
Buyer shall upon purchase of such Shares in the Tender Offer receive good and
marketable title to such Shares, free and clear of all liens, claims,
encumbrances and security interests of any kind.
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Each of Vedior and Buyer hereby represent and warrant that they have
the corporate power and are duly authorized to enter into this letter agreement.
In the event that a Shareholder does not tender the Shares pursuant to
this Agreement and Buyer completes the Tender Offer, at any meeting of
shareholders of the Company, such Shareholder hereby agrees (solely in his
capacity as a shareholder of the Company) to vote all of the Shares, and any
other common shares of the Company which such Shareholder may own, or have the
power to vote in favor of the Merger. In furtherance of the voting agreement
contained in this paragraph, each Shareholder hereby revokes any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or entities as Buyer may designate an irrevocable proxy to vote all
of the Shares owned by such Shareholder in favor of the Merger. In addition,
each Shareholder hereby agrees to execute such additional documents as Buyer, or
Vedior, may reasonably request to effectuate Buyer's voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
(i) constitutes the entire agreement among the parties hereto with respect to
the subject matter hereof and (ii) supersedes all other prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof. This letter agreement is not intended to confer upon
any other person any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, or (ii) by any party if the Merger
Agreement has been terminated in accordance with its terms. Notwithstanding the
foregoing, such right of termination shall not be available to any party whose
breach of any obligation hereunder has been the cause of or resulted in the
failure of the Tender Offer or the transactions contemplated by the Merger
Agreement or this letter agreement to be consummated. No such termination shall
relieve any party from liability for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and
remedies otherwise available to such party, to specific performance of all of
the other party's obligations hereunder. This letter agreement shall be governed
by and construed in accordance with the internal laws (and not the law of
conflicts) of the State of Georgia. Each of the parties shall pay its own
expenses in connection with the execution and performance of this letter
agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
[Intentionally left blank]
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Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
--------------------------
Xxxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx
Acknowledged and agreed:
VEDIOR N.V.
By:
-----------------------------
Name: C. K. Xxxxxxx Xxxxx
Title: Chief Financial Officer
PLATFORM PURCHASER INC.
By:
-----------------------------
Name: C. K. Xxxxxxx Xxxxx
Title: President
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EXHIBIT 3
April 16, 2000
Vedior N.V.
Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Ladies and Gentlemen:
This letter is to confirm our agreement regarding all of the shares of
common stock, $0.01 par value per share (the "Shares") of Acsys, Inc., a Georgia
corporation (the "Company") held by each of the undersigned shareholders of the
Company (each a "Shareholder" and collectively the "Shareholders"). In order to
induce Vedior N.V., a Dutch company ("Vedior"), Select Appointments North
America, Inc., a Delaware corporation ("SANA"), Xxxxxxx B.V., a Netherlands
company ("Parent") and Platform Purchaser Inc., a Georgia corporation ("Buyer")
to enter into an Agreement and Plan of Merger, to be dated as of the date hereof
among the Company, Parent, Buyer, Vedior and SANA (the "Merger Agreement"), the
parties hereto agree as follows:
Subject to the terms and conditions hereof, on or prior to the
expiration date of the tender offer to be commenced by Buyer pursuant to the
Merger Agreement (the "Tender Offer"), the Shareholders will tender to Buyer in
the Tender Offer, or cause to be tendered in the Tender Offer, all of the Shares
held by the Shareholders, including Shares acquired through the exercise of
options, immediately prior to the expiration of the Tender Offer. If a
Shareholder withdraws any tender of such Shares in the Tender Offer, such
Shareholder shall immediately, but in no event later than the expiration date of
the Tender Offer, re-tender such Shares to Buyer in the Tender Offer.
The Shareholders hereby agree not to sell, transfer or encumber the
Shares (except in the Tender Offer) during the term of this letter agreement.
Each Shareholder hereby represents and warrants as to the Shares that
(i) such Shareholder is the sole owner of and has full right, power and
authority to sell and vote such Shares, or if such Shareholder is not the sole
owner, such Shareholder has the full right, power and authority to sell such
Shares, and in either event, this letter agreement is a valid and binding
agreement, enforceable against such Shareholder, in accordance with its terms;
(ii) neither the execution of this letter agreement nor the consummation by such
Shareholder of the transactions contemplated hereby will constitute a violation
of, or conflict with, or default under, any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to which such Shareholder
is a party or by which such Shareholder or such Shares are bound; and (iii)
Buyer shall upon purchase of such Shares in the Tender Offer receive good and
marketable title to such Shares, free and clear of all liens, claims,
encumbrances and security interests of any kind.
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Each of Vedior and Buyer hereby represent and warrant that they have
the corporate power and are duly authorized to enter into this letter agreement.
In the event that a Shareholder does not tender the Shares pursuant to
this Agreement and Buyer completes the Tender Offer, at any meeting of
shareholders of the Company, such Shareholder hereby agrees (solely in his
capacity as a shareholder of the Company) to vote all of the Shares, and any
other common shares of the Company which such Shareholder may own, or have the
power to vote in favor of the Merger. In furtherance of the voting agreement
contained in this paragraph, each Shareholder hereby revokes any and all
previous proxies with respect to any of the Shares and grants to Buyer and such
individuals or entities as Buyer may designate an irrevocable proxy to vote all
of the Shares owned by such Shareholder in favor of the Merger. In addition,
each Shareholder hereby agrees to execute such additional documents as Buyer, or
Vedior, may reasonably request to effectuate Buyer's voting rights under this
paragraph.
We each hereby agree that this letter agreement creates legally binding
commitments, enforceable in accordance with their terms. This letter agreement
(i) constitutes the entire agreement among the parties hereto with respect to
the subject matter hereof and (ii) supersedes all other prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof. This letter agreement is not intended to confer upon
any other person any rights or remedies hereunder.
This letter agreement may be terminated at any time (i) by mutual
written consent of the parties hereto, or (ii) by any party if the Merger
Agreement has been terminated in accordance with its terms. Notwithstanding the
foregoing, such right of termination shall not be available to any party whose
breach of any obligation hereunder has been the cause of or resulted in the
failure of the Tender Offer or the transactions contemplated by the Merger
Agreement or this letter agreement to be consummated. No such termination shall
relieve any party from liability for any breach of this letter agreement.
Each party shall be entitled, without prejudice to the rights and
remedies otherwise available to such party, to specific performance of all of
the other party's obligations hereunder. This letter agreement shall be governed
by and construed in accordance with the internal laws (and not the law of
conflicts) of the State of Georgia. Each of the parties shall pay its own
expenses in connection with the execution and performance of this letter
agreement.
If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this letter agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
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70
Please indicate your agreement to the foregoing by signing this letter
agreement in the space provided below, whereupon a binding agreement will have
been formed between us in respect of the foregoing.
Sincerely,
-----------------------------
Xxxxx X. Xxxxx
THE XXXXX FAMILY FOUNDATION
By:
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Name: Xxxxx X. Xxxxx
Title: President
Acknowledged and agreed:
VEDIOR N.V.
By:
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Name: C. K. Xxxxxxx Xxxxx
Title: Chief Financial Officer
PLATFORM PURCHASER INC.
By:
------------------------------
Name: C. K. Xxxxxxx Xxxxx
Title: President
