1
Exhibit (c)(1)
AGREEMENT AND PLAN OF MERGER
among
INVENSYS, plc,
M ACQUISITION CORP.
M MERGER SUB, INC.
and
MARCAM SOLUTIONS, INC.
Dated as of May 27, 1999
2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May 27,
1999, among Invensys, plc, a United Kingdom public limited company ("Parent"), M
Acquisition Corp., a Delaware corporation and indirect wholly-owned subsidiary
of Parent ("Purchaser"), M Merger Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of Purchaser ("Merger Sub"), and Marcam Solutions, Inc., a
Delaware corporation (the "Company").
RECITALS
WHEREAS, the respective boards of directors of Parent, Purchaser and
the Company each have determined that it is in the best interests of their
respective companies and stockholders for Purchaser to acquire the Company upon
the terms and subject to the conditions set forth herein; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. The Offer.
1.1 The Offer. (a) Subject to the provisions of this Agreement
and this Agreement not having been terminated in accordance with Article 8, as
promptly as practicable but in no event later than Thursday, June 3, 1999,
Merger Sub shall commence, and Parent and Purchaser shall cause Merger Sub to
commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (the
"Exchange Act"), an offer to purchase all of the outstanding shares of common
stock, par value $.01 per share (the "Common Stock"), of the Company together
with the associated Rights (as hereinafter defined), at a price of $7.50 per
share of Common Stock, net to the seller in cash (the "Offer"). Except where the
context otherwise requires, all references herein to the shares of Common Stock
shall include the associated Rights. The obligation of Merger Sub, and of Parent
and Purchaser to cause Merger Sub, to commence the Offer and to accept for
payment, and to pay for any shares of Common Stock tendered pursuant to the
Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer
Conditions"). Subject to
-1-
3
the provisions of this Agreement, the Offer shall initially expire on the 20th
business day from and after the date the Offer is commenced, including the date
of the commencement of the Offer as the first business day in accordance with
Rule 14d-2, unless this Agreement is terminated in accordance with Article 8, in
which case the Offer (whether or not previously extended in accordance with the
terms hereof) shall expire on such date of termination.
(b) Without the prior written consent of the Company, Parent,
Purchaser and Merger Sub shall not (i) waive or increase the Minimum Condition
(as defined in Exhibit A), (ii) reduce the number of shares of Common Stock
subject to the Offer, (iii) reduce the price per share of Common Stock to be
paid pursuant to the Offer, (iv) extend the Offer if all of the Offer Conditions
are satisfied or waived, (v) change the form of consideration payable in the
Offer, or (vi) amend, modify or add to the Offer Conditions or the Offer in any
manner adverse to the holders of Common Stock. Notwithstanding the foregoing,
Merger Sub may, without the consent of the Company, extend the Offer at any time
and from time to time: (i) if at the then scheduled expiration date of the Offer
any of the Offer Conditions shall not have been satisfied or waived, such
extension not to exceed such time as Merger Sub shall reasonably conclude is
necessary for all such conditions to be satisfied or waived; (ii) for any period
required by any statute or rule, regulation, interpretation or position of the
Securities and Exchange Commission (the "SEC") or its staff applicable to the
Offer; (iii) for any period required by applicable law in connection with an
increase in the consideration to be paid pursuant to the Offer; and (iv) if all
Offer Conditions are satisfied or waived but the number of shares of Common
Stock tendered is less than 90% of the then outstanding number of shares of
Common Stock, but only if Merger Sub waives all Offer Conditions, for an
aggregate period of not more than 10 business days (for all such extensions
under this clause (iv)) beyond the latest expiration date that would be
permitted under clause (i), (ii) or (iii) of this sentence. Notwithstanding the
foregoing, Parent, Purchaser and Merger Sub agree that if all of the Offer
Conditions are not satisfied on any scheduled expiration date of the Offer then,
provided that all such conditions are and continue to be reasonably probable of
being satisfied by the date that is 30 business days after the commencement of
the Offer, Parent, Purchaser and Merger Sub shall extend the Offer from time to
time until such conditions are satisfied or waived, provided that Parent,
Purchaser and Merger Sub shall not be required to extend the Offer beyond the
date that is 30 business days after the commencement of the Offer. Subject to
and in accordance with the terms and conditions of the Offer and this Agreement
(but subject to the right of termination in accordance with Article 8), Merger
Sub shall, and Parent and Purchaser shall cause Merger Sub to, accept for
payment, in accordance with the terms of the Offer, all shares of Common Stock
validly tendered and not withdrawn pursuant to the Offer as soon as practicable
after the expiration of the Offer.
-2-
4
1.2. Actions by Purchaser and Merger Sub. (a) As soon as
reasonably practicable following execution of this Agreement, but in no event
later than five business days from the date hereof, Parent, Purchaser and Merger
Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with
respect to the Offer, which shall contain an offer to purchase and a related
letter of transmittal (such Schedule 14D-1 and the documents therein pursuant to
which the Offer will be made, together with any supplements or amendments
thereto, the "Offer Documents"). The Company and its counsel shall be given an
opportunity to review and comment upon the Offer Documents prior to the filing
thereof with the SEC. The Offer Documents shall comply as to form in all
material respects with the requirements of the Exchange Act. On the date filed
with the SEC and on the date first published, sent or given to the Company's
stockholders, the Offer Documents shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by Parent, Purchaser or Merger Sub with respect to
information supplied by the Company in writing specifically for inclusion in the
Offer Documents. Each of Parent, Purchaser and Merger Sub agrees to correct
promptly, and the Company agrees to notify Purchaser promptly as to, any
information provided by it in writing specifically for inclusion in the Offer
Documents if and to the extent such information shall have become false or
misleading in any material respect, and each of Parent, Purchaser and Merger Sub
further agrees to take all steps necessary to cause the Offer Documents as so
corrected to be filed with the SEC and to be disseminated to all of the holders
of shares of Common Stock, in each case as and to the extent required by
applicable federal securities laws. Parent, Purchaser and Merger Sub agree to
provide the Company and its counsel in writing any comments Parent, Purchaser,
Merger Sub or their counsel may receive from the SEC or its staff with respect
to the Offer Documents promptly after receipt of such comments. Parent,
Purchaser and Merger Sub shall use their reasonable best efforts, after
consultation with the Company, to respond promptly to all such comments of and
requests by the SEC. Parent, Purchaser and Merger Sub shall provide the Company
copies of any written responses and telephonic notification of any verbal
responses by Parent, Purchaser, Merger Sub or their counsel.
(b) Parent shall provide or cause to be provided to Merger Sub
all of the funds necessary to purchase any shares of Common Stock that Merger
Sub becomes obligated to purchase pursuant to the Offer at such time as such
funds are necessary.
1.3. Actions by the Company. (a) The Company hereby approves
of and consents to the Offer and represents and warrants that the board of
directors of the Company (the "Board of Directors" or the "Board"), at a meeting
duly called and held, has duly adopted, by unanimous vote, resolutions: (i)
approving this Agreement, the Offer and the Merger (as hereinafter defined),
(ii) determining that the Merger is advisable and
-3-
5
that the terms of the Offer and Merger are fair to, and in the best interests
of, the Company's stockholders, (iii) recommending that the Company's
stockholders accept the Offer and approve the Merger and this Agreement, (iv)
taking all action necessary to render (x) Section 203 of the Delaware General
Corporation Law (the "DGCL") and (y) the Company's Amended and Restated Rights
Agreement, dated as of September 18, 1998, between the Company and BankBoston,
N.A., as rights agent (the "Rights Agreement"), inapplicable to the Offer, the
Merger, the Tender and Option Agreement, dated as of May 27, 1999, among
Purchaser, Merger Sub and each of the persons listed on Schedule A thereto (the
"Option Agreement"), this Agreement or any of the transactions contemplated
hereby or thereby. The Company further represents and warrants that the Board of
Directors has received the written opinion of Broadview International LLC (the
"Financial Advisor") to the effect that, as of May 25, 1999, the consideration
to be received by the holders of shares of Common Stock pursuant to the Offer
and the Merger is fair to such holders from a financial point of view (the
"Fairness Opinion"). The Company hereby consents to the inclusion in the Offer
Documents of the recommendation of the Board of Directors described in the first
sentence of this Section 1.3(a). The Company hereby represents and warrants that
it has been authorized by the Financial Advisor to permit the inclusion of the
Fairness Opinion and references thereto, subject to prior review and consent by
the Financial Advisor (such consent not to be unreasonably withheld) in the
Offer Documents, the Schedule 14D-9 (as hereinafter defined) and the Proxy
Statement (as hereinafter defined).
(b) On the date the Offer Documents are filed with the SEC,
the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from
time to time, the "Schedule 14D-9") containing the recommendations described in
Section 1.3(a) and shall mail the Schedule 14D-9 to the stockholders of the
Company. To the extent practicable, the Company shall cooperate with Purchaser
in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate
Offer Documents to the Company's stockholders. Purchaser and its counsel shall
be given an opportunity to review and comment upon the Schedule 14D-9 prior to
the filing thereof with the SEC. The Schedule 14D-9 shall comply in all material
respects with the requirements of the Exchange Act. On the date filed with the
SEC and on the date first published, sent or given to the Company's
stockholders, the Schedule 14D-9 shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by the Company with respect to information supplied by
Parent, Purchaser or Merger Sub in writing specifically for inclusion in the
Schedule 14D-9. The Company agrees to correct promptly, and each of Purchaser
and Merger Sub agrees to notify the Company promptly as to, any information
provided by it in writing specifically for inclusion in the Schedule 14D-9 if
and to the extent such information shall have become false or misleading in any
material respect,
-4-
6
and the Company further agrees to take all steps necessary to cause the Schedule
14D-9 as so corrected to be filed with the SEC and to be disseminated to all of
the holders of shares of Common Stock, in each case as and to the extent
required by applicable federal securities laws. The Company agrees to provide
Purchaser and its counsel in writing any comments the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments. The Company shall use its reasonable best
efforts, after consultation with Purchaser, to respond promptly to all such
comments of and requests by the SEC. The Company shall provide Purchaser copies
of any written responses and telephonic notification of any verbal responses by
the Company and its counsel.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Merger Sub with mailing labels containing the names
and addresses of the record holders of Common Stock as of a recent date and of
those persons becoming record holders subsequent to such date, together with
copies of all lists of stockholders and security position listings and all other
information in the Company's possession or control regarding the beneficial
owners of Common Stock, and shall furnish to Merger Sub such information and
assistance (including updated lists of stockholders, security position listings
and computer files) as Merger Sub may reasonably request in communicating the
Offer to the Company's stockholders. Subject to the requirements of law, and
except for such steps as are necessary to disseminate the Offer Documents and
any other documents necessary to consummate the Offer and the Merger, Parent,
Purchaser and Merger Sub and each of their affiliates and associates shall hold
in confidence the information contained in any of such labels, lists and files,
shall use such information only in connection with the Offer and the Merger,
and, if this Agreement is terminated, shall promptly deliver to the Company all
copies of such information then in their possession and otherwise treat such
information as subject to the Confidentiality Agreement, between Purchaser and
the Company, dated May 17, 1999 (the "Confidentiality Agreement").
(d) Subject to the terms and conditions of this Agreement, if
there shall occur a change in law or in a binding judicial interpretation of
existing law which would, in the absence of action by the Company or the Board,
prevent the Merger Sub, were it to acquire a specified percentage of the shares
of Common Stock then outstanding, from approving and adopting this Agreement by
its affirmative vote as the holder of a majority of shares of Common Stock and
without the affirmative vote of any other stockholder, the Company will use its
best efforts to promptly take or cause such action to be taken.
1.4. Directors. (a) Promptly upon the purchase of shares of
Common Stock pursuant to the Offer, Purchaser shall be entitled to designate
such number of directors as will give Purchaser representation on the Board
equal to the product of (i) the number of directors on the Board and (ii) the
percentage that the number of shares of
-5-
7
Common Stock purchased by Merger Sub or Purchaser bears to the number of shares
of Common Stock then outstanding (the "Percentage"), rounded up to the next
whole number but rounded down if rounding up would cause the Purchaser's
representatives to constitute the entire Board, and the Company shall, upon
request by Purchaser, promptly increase the size of the Board and/or exercise
its best efforts to secure the resignations of such number of directors as is
necessary to enable the Purchaser's designees to be elected to the Board and
shall cause the Purchaser's designees to be so elected. At the request of
Purchaser, the Company will use its best efforts to cause such individuals
designated by Purchaser to constitute the same Percentage of (i) each committee
of the Board, (ii) the board of directors of each Subsidiary (as defined in
Section 4.5) and (iii) each committee of each Subsidiary's board of directors.
The Company's obligations to appoint designees to the Board of Directors shall
be subject to compliance with Section 14(f) of the Exchange Act. The Company
shall take, at its expense, all action necessary to effect any such election,
and shall include in the Schedule 14D-9 the information required by Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent and
Purchaser will supply to Company in writing, and be solely responsible for, any
information with respect to itself and its nominees, directors and affiliates
that is required by Section 14(f) and Rule 14f-1.
(b) Following the election or appointment of Purchaser's
designees pursuant to this Section 1.4 and prior to the Effective Time, the
approval of a majority of the directors of the Company then in office shall be
required to authorize, on behalf of the Company, any permitted termination of
this Agreement by the Company, any amendment of this Agreement requiring action
by the Board, any extension of time for the performance of any of the
obligations or other acts of Purchaser or Merger Sub, and any waiver of
compliance with any of the agreements or conditions contained herein for the
benefit of the Company, and Purchaser shall ensure that its designees who are
serving on the Board do not vote or take any other action to approve any such
authorization without the approval of a majority of the directors then in office
who are not designated by Purchaser.
ARTICLE 2
2. The Merger.
2.1. The Merger. At the Effective Time, subject to the terms
and conditions of this Agreement and the applicable provisions of the DGCL,
Merger Sub shall be merged with and into the Company and the separate corporate
existence of Merger Sub shall thereupon cease (the "Merger"). The Company shall
be the surviving corporation in the Merger (sometimes hereinafter referred to as
the "Surviving Corporation"). The Merger shall have the effects specified in the
DGCL.
-6-
8
2.2. The Closing. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place at the
offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, One New York Plaza, New
York, New York, at 10:00 a.m., local time, as soon as practicable following the
satisfaction (or waiver if permissible) of the conditions set forth in Article
7. The date on which the Closing occurs is hereinafter referred to as the
"Closing Date."
2.3. Effective Time. If all the conditions to the Merger set
forth in Article 7 shall have been fulfilled or waived in accordance herewith
and this Agreement shall not have been terminated as provided in Article 8 (and
subject to Section 3.6), the parties hereto shall cause a Certificate of Merger
meeting the requirements of Section 251 of the DGCL to be properly executed and
filed in accordance with such Section on the Closing Date. The Merger shall
become effective at the time of filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the DGCL or at
such later time which the parties hereto shall have agreed upon and designated
in such filing as the effective time of the Merger (the "Effective Time").
2.4. Certificate of Incorporation, Bylaws, Directors and
Officers of the Surviving Corporation. Unless otherwise agreed by the Company
and Purchaser prior to the Closing, at the Effective Time:
(a) The Certificate of Incorporation of Merger Sub as in
effect immediately prior to the Effective Time shall be the certificate of
incorporation of the Surviving Corporation, until duly amended in accordance
with applicable law and the terms thereof;
(b) The By-Laws of Merger Sub as in effect immediately prior
to the Effective Time shall be the by-laws of the Surviving Corporation, until
duly amended in accordance with applicable law, the terms thereof, and the
Surviving Corporation's certificate of incorporation;
(c) The officers of the Company immediately prior to the
Effective Time shall continue to serve in their respective offices of the
Surviving Corporation from and after the Effective Time, until their successors
are duly appointed or elected in accordance with applicable law and the
Surviving Corporation's certificate of incorporation and by-laws; and
(d) The directors of Merger Sub immediately prior to the
Effective Time shall be the directors of the Surviving Corporation from and
after the Effective Time, until their successors are duly appointed or elected
in accordance with applicable law and the Surviving Corporation's certificate of
incorporation and by-laws.
-7-
9
ARTICLE 3
3. Effect of the Merger on Securities of Merger Sub and the Company.
3.1. Merger Sub Stock. At the Effective Time, each share of
common stock, $.01 par value per share, of Merger Sub that is outstanding
immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and non-assessable share of common stock,
$.01 par value per share, of the Surviving Corporation.
3.2. Company Securities. (a) At the Effective Time, each share
of Common Stock issued and outstanding immediately prior to the Effective Time
(other than shares of Common Stock owned by Parent, Purchaser or Merger Sub or
held by the Company, all of which shall be canceled, and other than the shares
of Dissenting Common Stock (as defined in Section 3.5)) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into the right to receive the highest per share consideration paid in the Offer,
without interest (the "Merger Consideration").
(b) As a result of the Merger and without any action on the
part of the holder thereof, at the Effective Time, all shares of Common Stock
shall cease to be outstanding and shall be canceled and retired and shall cease
to exist, and each holder of shares of Common Stock (other than Merger Sub,
Purchaser and the Company and other than shares of Dissenting Common Stock)
shall thereafter cease to have any rights with respect to such shares of Common
Stock, except the right to receive, without interest, the Merger Consideration
in accordance with this Section 3.2 and Section 3.3 upon the surrender of a
certificate or certificates (a "Certificate") representing such shares of Common
Stock.
(c) Each share of Common Stock issued and held in the
Company's treasury at the Effective Time, or held by Merger Sub, Purchaser or
Parent, shall, by virtue of the Merger, cease to be outstanding and shall be
canceled and retired without payment of any consideration therefor.
(d) All options (individually, an "Option" and collectively,
the "Options") outstanding immediately prior to the Effective Time under any
Company stock option plan, including the Marcam Solutions 1997 Stock Plan (the
"1997 Plan") and the Marcam Solutions, Inc. 1997 Non-Employee Director Stock
Option Plan (the "Directors Plan") (the "Stock Option Plans"), whether or not
then exercisable, and all warrants to acquire shares of Common Stock
(individually, a "Warrant" and collectively, the "Warrants") outstanding
immediately prior to the Effective Time, whether or not then exercisable, and
all rights (individually, a "Purchase Right" and collectively, the "Purchase
Rights") to purchase shares of Common Stock under the Company's 1997 Employee
Stock Purchase
-8-
10
Plan (the "Purchase Plan") shall be canceled and (i) each holder of an Option or
Warrant shall promptly after the Effective Time receive from the Surviving
Corporation, for each share of Common Stock subject to an Option or Warrant,
whether or not exercisable, an amount in cash equal to the excess, if any, of
the Merger Consideration over the per share exercise price of such Option or
Warrant, without interest, in full settlement of the Company's (and the
Surviving Corporation's) obligations under each such Option or Warrant, and (ii)
each holder of a Purchase Right shall promptly after the Effective Time receive
from the Surviving Corporation the Merger Consideration for each such Purchase
Right, without interest, in full settlement of the Company's (and the Surviving
Corporation's) obligations under each such Purchase Right. To the extent that
the per share exercise price of any Option or Warrant exceeds the Merger
Consideration, at the Effective Time such Option or Warrant shall be canceled
and the holder of such Option or Warrant shall not receive or be entitled to
receive any consideration from Purchaser, Merger Sub or the Surviving
Corporation. The amount payable pursuant to this Section 3.2(d) shall be subject
to all applicable withholding of taxes. The Company shall take all actions as
may be necessary to effectuate the foregoing.
3.3. Exchange of Certificates Representing Common Stock. (a)
Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust
company, subject to the reasonable satisfaction of the Company, to act as paying
agent hereunder for payment of the Merger Consideration upon surrender of
Certificates (the "Paying Agent"). Parent and Purchaser shall take all steps
necessary to cause the Surviving Corporation to provide the Paying Agent with
cash in amounts necessary to pay for all the shares of Common Stock pursuant to
Section 3.2(a) and, in connection with the Options, Warrants and Purchase
Rights, pursuant to Section 3.2(d), as and when such amounts are needed by the
Paying Agent. Such amounts shall hereinafter be referred to as the "Exchange
Fund."
(b) As soon as practicable after the Effective Time, Purchaser
shall cause the Paying Agent to mail to each holder of record of shares of
Common Stock (i) a letter of transmittal which shall specify that delivery shall
be effected, and risk of loss and title to such Certificates shall pass, only
upon delivery of the Certificates to the Paying Agent and which letter shall be
in such form and have such other provisions as are customary for letters of this
nature and (ii) instructions for effecting the surrender of such Certificates in
exchange for the Merger Consideration. Upon surrender of a Certificate to the
Paying Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other documents
as may be reasonably required by the Paying Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor the amount of cash
into which shares of Common Stock theretofore represented by such Certificate
shall have been converted pursuant to Section 3.2, and the shares represented by
the Certificate so surrendered shall forthwith be canceled. No interest will be
paid or will accrue on the cash payable upon surrender of any Certificate.
-9-
11
In the event of a transfer of ownership of Common Stock that is not registered
in the transfer records of the Company, payment may be made with respect to such
Common Stock to such a transferee if the Certificate representing such shares of
Common Stock is presented to the Paying Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid.
(c) At or after the Effective Time, there shall be no
transfers on the stock transfer books of the Company of the shares of Common
Stock that were outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving Corporation,
they shall be canceled and exchanged as provided in this Article 3.
(d) Any portion of the Exchange Fund (including the proceeds
of any interest and other income received by the Paying Agent in respect of all
such funds) that remains unclaimed by the former stockholders of the Company six
months after the Effective Time shall be delivered to the Surviving Corporation.
Any former stockholders of the Company who have not theretofore complied with
this Article 3 may thereafter look only to the Surviving Corporation for payment
of any Merger Consideration, without any interest thereon, that may be payable
in respect of each share of Common Stock such stockholder holds as determined
pursuant to this Agreement.
(e) None of Parent, Purchaser, the Company, the Surviving
Corporation, the Paying Agent or any other person shall be liable to any former
holder of shares of Common Stock for any amount properly delivered to a public
official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim which may be made against it with respect to such Certificate, the
Paying Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration payable in respect thereof pursuant to this
Agreement.
3.4. Adjustment of Merger Consideration. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, the
outstanding shares of Common Stock shall have been changed into a different
number of shares or a different class as a result of a stock split, reverse
stock split, stock dividend, subdivision, reclassification, split, combination,
exchange, recapitalization or other similar transaction, the Merger
Consideration shall be appropriately adjusted.
-10-
12
3.5. Dissenting Company Stockholders. Notwithstanding any
provision of this Agreement to the contrary, if required by the DGCL but only to
the extent required thereby, shares of Common Stock that are issued and
outstanding immediately prior to the Effective Time and which are held by
holders of such shares of Common Stock who have properly exercised appraisal
rights with respect thereto in accordance with Section 262 of the DGCL (the
"Dissenting Common Stock") will not be exchangeable for the right to receive the
Merger Consideration, and holders of such shares of Dissenting Common Stock will
be entitled to receive payment of the appraised value of such shares of Common
Stock in accordance with the provisions of such Section 262 unless and until
such holders fail to perfect or effectively withdraw or lose their rights to
appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively withdraws or loses such right, such
shares of Common Stock will thereupon be treated as if they had been converted
into and to have become exchangeable for, at the Effective Time, the right to
receive the Merger Consideration, without any interest thereon. The Company will
give Purchaser prompt notice of any demands received by the Company for
appraisals of shares of Common Stock prior to the Effective Time. The Company
shall not, except with the prior written consent of Purchaser, make any payment
with respect to any demands for appraisal or offer to settle or settle any such
demands.
3.6. Merger Without Meeting of Stockholders. In the event that
Merger Sub, or any other direct or indirect subsidiary of Purchaser, shall
acquire at least 90 percent of the outstanding shares of Common Stock, the
parties hereto shall take all necessary and appropriate action to cause the
Merger to become effective as soon as practicable after the expiration of the
Offer without a vote of stockholders of the Company, in accordance with Section
253 of the DGCL.
ARTICLE 4
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to Parent, Purchaser and Merger Sub as of the
date of this Agreement as follows:
4.1. Existence; Good Standing; Corporate Authority. Each of
the Company and each of its Subsidiaries is (i) a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and (ii) is duly licensed or qualified to do business as a foreign
corporation and is in good standing under the laws of any other state of the
United States in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary,
except where the failure to be so qualified or to be in good standing would not
have, individually or in the aggregate, a material adverse effect on the
business,
-11-
13
operations, revenues, assets or financial condition of the Company and its
Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries
to conduct their business after the Closing substantially consistent with the
manner conducted in the past (a "Material Adverse Effect") (it being understood
that (i) any adverse effect that is caused by conditions affecting the economy
or securities markets generally shall not be taken into account in determining
whether there has been a Material Adverse Effect (ii) any adverse effect that is
caused by conditions affecting the primary industry in which the Company
currently competes shall not be taken into account in determining whether there
has been a Material Adverse Effect (provided that such effect does not affect
the Company in a disproportionate manner) and (iii) any adverse effect resulting
from the Offer, the Merger or any of the transactions contemplated hereby or the
announcement thereof (including those resulting from litigation brought or
threatened against the Company or any member of its Board of Directors in
respect thereof) shall not be taken into account in determining whether there
has been a Material Adverse Effect). Each of the Company and each of its
Subsidiaries has all requisite corporate power and authority to own or lease and
operate its properties and carry on its business as now conducted. The Company
has heretofore made available to Purchaser true and correct copies of the
Company's Certificate of Incorporation and By-Laws as currently in effect.
4.2. Authorization, Validity and Effect of Agreements. The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and all agreements and documents contemplated hereby (the
"Ancillary Documents") and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the Ancillary
Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Board of Directors, and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement and the Ancillary Documents or
to consummate the transactions contemplated hereby and thereby (other than the
approval of this Agreement by the holders of a majority of the shares of Common
Stock if required by applicable law). This Agreement has been, and any Ancillary
Document at the time of execution will have been, duly and validly executed and
delivered by the Company, and (assuming this Agreement and such Ancillary
Documents each constitutes a valid and binding obligation of Purchaser and
Merger Sub) constitutes and will constitute the valid and binding obligations of
the Company, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
4.3. Compliance with Laws. Except as set forth in Section 4.3
of the disclosure letter, dated as of the date hereof, delivered by the Company
to Purchaser (the "Company Disclosure Letter"), neither the Company nor any of
its Subsidiaries is in violation of any order of any foreign, federal, state or
local judicial, legislative, executive,
-12-
14
administrative or regulatory body or authority or any court, arbitration board
or tribunal ("Governmental Entity"), or any foreign, federal, state or local
law, statute, ordinance, rule, regulation, order, judgment or decree ("Laws")
applicable to the Company or its Subsidiaries or any of their respective
properties or assets, except where the failure to be in compliance, individually
or in the aggregate, would not have a Material Adverse Effect.
4.4. Capitalization, etc. The authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock and 5,000,000 shares of
preferred stock, $.01 par value, of which 30,000 shares have been designated as
Series A Junior Participating Preferred Stock ("Preferred Stock"). As of the
date hereof, (a) 7,818,087 shares of Common Stock are outstanding, (b) 30,000
shares of Preferred Stock are subject to Preferred Stock Purchase Rights
("Rights") issued pursuant to the Company's Rights Agreement and no other shares
of Preferred Stock are issued and outstanding, (c) 0 shares of Common Stock are
held by the Company in its treasury, and (d) no shares of capital stock of the
Company are held by the Company's Subsidiaries. Section 4.4 of the Company
Disclosure Letter sets forth a complete and accurate list, as of the date
hereof, of (i) the number of outstanding Options and Warrants, (ii) the number
of shares of Common Stock which can be acquired upon the exercise of all
outstanding Options and Warrants, respectively, (iii) the number of shares of
Common Stock which are reserved for issuance upon the exercise of outstanding
Options and the number of shares which are reserved for future grants under the
Stock Option Plans, (iv) the number of shares of Common Stock which are reserved
for issuance upon the exercise of outstanding Warrants, and (v) the exercise
price of each outstanding Option and Warrant, and (vi) the number of shares of
Common Stock which are reserved for issuance pursuant to the Purchase Plan.
Except for the Common Stock, the Rights, the Options, the Warrants, and the
Purchase Rights, the Company has no outstanding bonds, debentures, notes or
other obligations entitling the holders thereof to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of the Company on any matter. Except as set forth in Section
4.4 of the Company Disclosure Letter, since March 31, 1999, the Company (i) has
not issued any shares of Common Stock other than upon the exercise of Options
and Warrants or pursuant to the Purchase Plan, (ii) has granted no Options to
purchase shares of Common Stock under the Stock Option Plans, (iii) has not
amended the Purchase Plan, and (iv) has not split, combined or reclassified any
of its shares of capital stock. All issued and outstanding shares of Common
Stock are duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights. Except as set forth above in this Section 4.4 or in Section
4.4 of the Company Disclosure Letter, there are no other shares of capital stock
or voting securities of the Company, and no existing options, warrants, calls,
subscriptions, convertible securities, and no stock appreciation rights or
limited stock appreciation rights or other rights (including rights of first
refusal), agreements or commitments which obligate the Company or any of its
Subsidiaries to issue, transfer or sell any shares of capital stock of, or
equity interests in,
-13-
15
or any material assets of, the Company or any of its Subsidiaries. Except as set
forth in Section 4.4 of the Company Disclosure Letter, the Company is not
obligated to issue any Options, Warrants or Purchase Rights after the date
hereof. There are no outstanding obligations of the Company or any Subsidiaries
to repurchase, redeem or otherwise acquire any shares of capital stock of the
Company and there are no unissued performance awards outstanding under the Stock
Option Plan or any other outstanding stock related awards. At the Effective
Time, each outstanding Option and Warrant shall be canceled without the consent
of any other party or the payment of any consideration other than as provided in
Section 3.2(d). After the Effective Time, the Surviving Corporation will have no
obligation to issue, transfer or sell any shares of capital stock of the Company
or the Surviving Corporation pursuant to any Company Employee Benefit Plan (as
defined in Section 4.11). There are no voting trusts or other agreements or
understandings to which the Company or any of its Subsidiaries is a party with
respect to the voting of capital stock of the Company or any of its
Subsidiaries.
4.5. Subsidiaries. Except as set forth in Section 4.5 of the
Company Disclosure Letter, the Company owns, directly or indirectly, all of the
outstanding shares of capital stock of each subsidiary of the Company (the
"Subsidiaries"). Except as set forth in Section 4.5 of the Company Disclosure
Letter, all of the outstanding shares of capital stock of each Subsidiary are
duly authorized, validly issued, fully paid and nonassessable, and are owned,
directly or indirectly, by the Company free and clear of all liens, pledges,
security interests, claims or other encumbrances ("Encumbrances"). Section 4.5
of the Company Disclosure Letter sets forth for each Subsidiary: (i) its name
and jurisdiction of incorporation or organization; (ii) its authorized capital
stock or share capital; (iii) the number of issued and outstanding shares of
capital stock or share capital; and (iv) the holder or holders of such shares.
Except for the Company's direct or indirect interests in the Subsidiaries or as
set forth in Section 4.5 of the Company Disclosure Letter, neither the Company
nor any of its Subsidiaries owns directly or indirectly any interest or
investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity.
4.6. No Violation. Except as set forth in Section 4.6 of the
Company Disclosure Letter, neither the execution and delivery by the Company of
this Agreement or any of the Ancillary Documents nor the consummation by the
Company of the transactions contemplated hereby or thereby will: (i) violate,
conflict with or result in a breach of any provision of the Certificate of
Incorporation or By-Laws of the Company or any Subsidiary; (ii) violate,
conflict with, result in a breach of any provision of, constitute a default (or
an event which, with notice or lapse of time or both, would constitute a
default) under, result in the termination or in a right of termination of,
accelerate the performance required by or benefit obtainable under, result in
the triggering of any payment or other obligations pursuant to, result in the
creation of any Encumbrance upon any of the properties of the Company or any of
its Subsidiaries under, or result in there
-14-
16
being declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which the Company or any of its
Subsidiaries is a party, or by which the Company or any of its Subsidiaries or
any of their respective properties is bound (each, a "Contract" and,
collectively, "Contracts"), except for any of the foregoing matters specified in
this clause (ii) which, individually or in the aggregate, would not have a
Material Adverse Effect or prevent or delay or be likely to prevent or delay the
consummation of the transactions contemplated hereby; (iii) other than the
filings provided for in Section 2.3 and the filings required under the Exchange
Act and under the Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder (the "HSR Act"), require any
consent, approval or authorization of, or declaration, filing or registration
with, any Governmental Entity, the lack of which, individually or in the
aggregate, would have a Material Adverse Effect or, by Law, prevent or delay the
consummation of the transactions contemplated hereby; or (iv) violate any Laws
applicable to the Company, any of its Subsidiaries or any of their respective
assets, except for violations which individually or in the aggregate would not
have a Material Adverse Effect or materially adversely affect the ability of the
Company to consummate the transactions contemplated hereby.
4.7. Company Reports; Offer Documents. (a) Since September 30,
1997, the Company has filed all documents with the SEC required to be filed by
the Company under the Exchange Act. The Company has made available to Purchaser
each registration statement, report, proxy statement or information statement
(as defined under the Exchange Act) filed by it with the SEC since September 30,
1997, each in the form (including exhibits and any amendments thereto) so filed
(collectively, the "Company Reports"). As of their respective dates, the Company
Reports (i) complied as to form in all material respects with the applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the Exchange Act, and the rules and regulations thereunder and (ii) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
Each of the consolidated balance sheets of the Company included in the Company
Reports (including the related notes and schedules) fairly presented the
consolidated financial position of the Company and its Subsidiaries as of its
date, and each of the consolidated statements of operations, cash flows and
stockholders' equity of the Company included in or incorporated by reference
into the Company Reports (including the related notes and schedules) fairly
presented the results of operations, cash flows and shareholders' equity of the
Company and its Subsidiaries for the periods set forth therein, in each case in
accordance with generally accepted accounting principles consistently applied
during the periods involved, except as may be noted therein or in the notes
thereto and except that the unaudited interim financial statements are subject
to normal
-15-
17
year-end adjustments and any other adjustments referred to therein or in the
notes thereto and do not contain all of the footnote disclosures required by
generally accepted accounting principles. Except as set forth in Section 4.7 of
the Company Disclosure Letter or as disclosed in the Company Reports, neither
the Company nor any of its Subsidiaries has any liabilities or obligations,
contingent or otherwise, except (i) liabilities and obligations in the
respective amounts reflected or reserved against in the Company's consolidated
balance sheet as of March 31, 1999 included in the Company Reports (the "1999
Balance Sheet") or (ii) liabilities and obligations incurred in the ordinary
course of business since March 31, 1999 which individually or in the aggregate
would not have a Material Adverse Effect or (iii) obligations and liabilities
incurred or to be incurred relating to the transactions contemplated by this
Agreement.
(b) None of the Schedule 14D-9, the information statement, if
any, filed by the Company in connection with the Offer pursuant to Rule 14f-1
under the Exchange Act (the "Information Statement"), any schedule required to
be filed by the Company with the SEC or any amendment or supplement thereto, at
the respective times such documents are filed with the SEC or first published,
sent or given to the Company's stockholders, shall 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 the light of
the circumstances under which they are made, not misleading except that no
representation is made by the Company with respect to information supplied by
the Purchaser or Merger Sub in writing specifically for inclusion in the
Schedule 14D-9 or Information Statement or any amendment or supplement. None of
the information supplied or to be supplied by the Company in writing
specifically for inclusion or incorporation by reference in the Offer Documents
will, at the date of filing with the SEC, 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. If at any time prior
to the Effective Time the Company shall obtain knowledge of any facts with
respect to itself, any of its officers and directors or any of its Subsidiaries
that would require the supplement or amendment to any of the foregoing documents
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or to comply with applicable Laws, such
amendment or supplement shall be promptly filed with the SEC and, as required by
Law, disseminated to the stockholders of the Company, and in the event Purchaser
shall advise the Company as to its obtaining knowledge of any facts that would
make it necessary to supplement or amend any of the foregoing documents, the
Company shall promptly amend or supplement such document as required and
distribute the same to its stockholders.
4.8. Litigation. Except as set forth in the Company Reports or
in Section 4.8 of the Company Disclosure Letter, (i) there are no claims,
actions, suits, proceedings, arbitrations, or to the knowledge of the Company,
investigations or audits
-16-
18
(collectively, "Litigation") by or before a Governmental Entity pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries, at law or in equity, other than those in the ordinary course of
business that, individually or in the aggregate, would not have a Material
Adverse Effect nor does the Company or any of its Subsidiaries have knowledge of
any facts or circumstances that it believes would be likely to form the basis
for any such claims, actions, suits, proceedings, arbitrations, investigations
or audits.
4.9. Absence of Certain Changes. Except as set forth in the
Company Reports or in Section 4.9 of the Company Disclosure Letter, since March
31, 1999, the Company and its Subsidiaries have conducted their business in the
ordinary course of such business consistent with past practices, and there has
not been (i) any event or state of fact that, individually or in the aggregate,
would have a Material Adverse Effect; (ii) any declaration, setting aside or
payment of any dividend or other distribution with respect to its capital stock
or any repurchase, redemption or any other acquisition by the Company or its
Subsidiaries of any outstanding shares of capital stock or other securities of,
or other ownership interests in, the Company or any of its Subsidiaries; (iii)
any change in accounting principles, practices or methods; (iv) any entry into
any employment agreement with, or any increase in the rate or terms (including,
without limitation, any acceleration of the right to receive payment) of
compensation payable or to become payable by the Company or any of its
Subsidiaries to, their respective directors, officers or employees, except
increases for employees who are not officers or directors occurring in the
ordinary course of business in accordance with their customary practices; (v)
any increase in the rate or terms (including, without limitation, any
acceleration of the right to receive payment) of any bonus, insurance, pension
or other employee benefit plan or arrangement covering any such directors,
officers or employees, except increases for employees who are not officers or
directors occurring in the ordinary course of business in accordance with its
customary practices; (vi) any entry into any Contracts or transaction by the
Company or any Subsidiary which is material to the Company and its Subsidiaries
taken as a whole whether or not in the ordinary course of business; (vii) any
revaluation by the Company or any of its Subsidiaries of any of their respective
assets, including, without limitation, write-downs of inventory or write-offs of
accounts receivable other than in the ordinary course of business consistent
with past practices; or (viii) any action by the Company which if taken after
the date hereof would constitute a breach of Section 6.2(b) hereof (other than
Sections 6.2(b)(ii) and 6.2(b)(xiii)).
4.10. Taxes. The Company and its Subsidiaries have timely
filed (taking into account extensions) all material Tax Returns (as defined
below) required to be filed by any of them. All such Tax Returns are true,
correct and complete, except for such instances which individually or in the
aggregate would not have a Material Adverse Effect. Except as would not have a
Material Adverse Effect, except for those Taxes (as
-17-
19
defined below) being contested in good faith and for which adequate reserves
have been established in the financial statements included in the Company
Reports in accordance with GAAP, and except as set forth in Section 4.10 of the
Company Disclosure Letter, the Company and its Subsidiaries have paid all Taxes
required to be paid by any of them or claimed or asserted by any taxing
authority to be due. There is no action, suit, claim or assessment pending with
respect to Taxes which, if upheld, would, individually or in the aggregate, have
a Material Adverse Effect. The Company and its Subsidiaries have withheld and
paid over to the relevant taxing authority all Taxes required to have been
withheld and paid in connection with payments to employees, independent
contractors, creditors, stockholders or other third parties, except for such
Taxes which, individually or in the aggregate, would not have a Material Adverse
Effect. The Company had no "plan or intention" (within the meaning of Revenue
Procedure 96-30), at the time of the consummation of the transactions set forth
in the Distribution Agreement, dated as of July 17, 1997, between MAPICS, Inc.
(f/k/a Marcam Corporation) ("MAPICS") and the Company (the "Distribution
Agreement"), to liquidate the Company, to merge the Company with any other
corporation (including for this purpose a transaction that would be treated for
federal income tax purposes as a sale of stock), or to sell or otherwise dispose
of the assets of the Company, except in the ordinary course of business. No
circumstances exist that could cause the Company or any of its Subsidiaries not
to be entitled to indemnification under Section 6(a)(iii) of the Tax Sharing
Agreement, dated as of July 17, 1997, by and between MAPICS and the Company, by
reason of the exception set forth therein relating to Section 5.02(e) of the
Distribution Agreement.
For purposes of this Agreement, (A) "Tax" (and, with correlative meaning,
"Taxes") means any federal, state, local or foreign income, gross receipts,
property, sales, use, license, excise, franchise, employment, payroll, premium,
withholding, alternative or added minimum, ad valorem, transfer or excise tax,
or any other tax, custom, duty, governmental fee or other like assessment or
charge of any kind whatsoever, together with any interest or penalty, imposed by
any Governmental Entity, and (B) "Tax Return" means any return, report or
similar statement required to be filed with respect to any Tax (including any
attached schedules), including, without limitation, any information return,
claim for refund, amended return or declaration of estimated Tax.
4.11. Employee Benefit Plans. (a) Section 4.11 of the Company
Disclosure Letter sets forth a list of all "employee benefit plans," as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and all other material employee benefit or compensation
arrangements, including, without limitation, any such arrangements providing
severance pay, sick leave, vacation pay, salary continuation for disability,
retirement benefits, deferred compensation, bonus pay, incentive pay, stock
options (including those held by directors, employees, and consultants),
hospitalization insurance, medical insurance, life insurance, scholarships or
tuition reimbursements, that are maintained by the Company or any of its
Subsidiaries or
-18-
20
to which the Company or any of its Subsidiaries is obligated to contribute
thereunder for current or former directors, employees, independent contractors,
consultants and leased employees of the Company or any Company Subsidiary (the
"Company Employee Benefit Plans").
(b) None of the Company Employee Benefit Plans is a
"multiemployer plan," as defined in Section 4001(a)(3) of ERISA (a
"Multiemployer Plan") or a plan subject to Title IV of ERISA, and neither the
Company nor any of its Subsidiaries presently maintains or has maintained any
such plan, or has any liability, contingent or otherwise, with respect to any
such plan.
(c) Except as provided in Part 6 of Title I of ERISA or as set
forth in Section 4.11 of the Company Disclosure Letter, the Company does not
maintain or contribute to any plan or arrangement which provides or has any
liability to provide life insurance or medical or other employee welfare
benefits to any employee or former employee upon his retirement or termination
of employment, and the Company has never represented, promised or contracted
(whether in oral or written form) to any employee or former employee that such
benefits would be provided.
(d) Except as set forth in Section 4.11 of the Company
Disclosure Letter, (i) the execution of, and performance of the transactions
contemplated in, this Agreement will not, either alone or upon the occurrence of
subsequent events, result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any
employee, and (ii) there are no severance agreements applicable to the Company
or any of its Subsidiaries. No payment or benefit which will or may be made by
the Company, Parent or any of their Subsidiaries or affiliates with respect to
any employee of the Company or any of its Subsidiaries will be characterized as
an "excess parachute payment" within the meaning of Section 280G(b)(1) of the
Code.
(e) (i) each Company Employee Benefit Plan that is intended to
qualify under Section 401 of the Internal Revenue Code of 1986, as amended (the
"Code"), and each trust maintained pursuant thereto, has been determined to be
exempt from federal income taxation under Section 501 of the Code by the
Internal Revenue Service, and nothing has occurred with respect to the operation
or organization of any such Company Employee Benefit Plan that would cause the
loss of such qualification or exemption or the imposition of any material
liability, penalty or tax under ERISA or the Code, (ii) there are no pending
material actions, claims (other than claims for benefits), investigations or
lawsuits which have been asserted, filed or, to the Company's knowledge,
threatened, in connection with the Company Employee Benefit Plans, (iii) no
"non-exempt" "prohibited transaction" (within the meaning of Section 4975 of the
Code or Section 406 of ERISA) has occurred with respect to any Company Employee
Benefit Plan that could result in a material liability to the Company, any
Company Employee Benefit Plan or any of the
-19-
21
beneficiaries thereof, and (iv) the Company Employee Benefit Plans have been
maintained in all material respects in accordance with their terms and with all
applicable provisions of ERISA and the Code (including rules and regulations
thereunder) and all other applicable federal and state laws and regulations.
(f) Neither the Company nor any of its Subsidiaries has made
any payment or is obligated to make any payment that is not or will not be fully
deductible under Section 162(m) of the Code, nor is the Company or any of its
Subsidiaries a party to any agreement that could result in any such payment.
(g) Section 4.11 of the Company Disclosure Letter sets forth a
complete list of all amounts (other than de mimimus amounts) outstanding
relating to bonuses payable to employees and any obligation to pay bonuses to
employees relating to the Company's performance, the employee's performance or
the transactions contemplated hereby.
(h) Other than the Subsidiaries, there is no business or
entity which is a member of the same "controlled group of corporations," under
"common control" or an "affiliated service group" with the Company within the
meanings of Sections 414(b), (c) or (m) of the Code, or required to be
aggregated with the Company under Section 414(o) of the Code, or is under
"common control" with the Company, within the meaning of Section 4001(a)(14) of
ERISA, or any regulations promulgated or proposed under any of the foregoing
Sections.
4.12. Labor and Employment Matters. Except as set forth in
Section 4.12 of the Company Disclosure Letter, neither the Company nor any of
its Subsidiaries is a party to, or bound by, any collective bargaining agreement
or other Contracts or understanding with a labor union or labor organization.
Except for such matters which, individually or in the aggregate, would not have
a Material Adverse Effect and, there is no (i) unfair labor practice, labor
dispute (other than routine individual grievances) or labor arbitration
proceeding pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries relating to their businesses, (ii) activity
or proceeding by a labor union or representative thereof to organize any
employees of the Company or any of its Subsidiaries, or (iii) lockouts, strikes,
slowdowns, work stoppages or threats thereof by or with respect to such
employees. The Company is in compliance with all Laws regarding employment,
employment practices, terms and conditions of employment and wages and Laws,
except for such noncompliance which, either individually or in the aggregate,
would not have a Material Adverse Effect.
4.13. Brokers. Except for the Financial Advisor, no broker,
finder or financial advisor is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this Agreement
that is based upon any
-20-
22
arrangement made by or on behalf of the Company. The Company's fee arrangements
with the Financial Advisor have been disclosed to the Purchaser.
4.14. Intellectual Property Rights. Each item of Company
Intellectual Property which is (i) owned by the Company and is a patent, patent
application, material or registered trademark, trademark application, material
or registered service xxxx, service xxxx application, material trade dress,
material logo, trade name, domain name, corporate name, copyright registration,
copyright application, mask work registration or mask work application, or (ii)
a material license out of the ordinary course of business, material sublicense
out of the ordinary course of business or material agreement out of the ordinary
course of business is set forth in Section 4.14A of the Company Disclosure
Letter or filed as an exhibit to the Company Reports. Except as set forth in
Section 4.14B(a) of the Company Disclosure Letter, (i) the Company owns the
Company Intellectual Property, free and clear of any Encumbrance, license or
other restriction, or has the valid right to make, use, sell or license as
necessary in the conduct of its business the Company Intellectual Property; (ii)
the Company has the right to require any Company employee or contractor having
rights in any Company Intellectual Property which is an application for
registration, including but not limited to patent applications, trademark
applications, service xxxx applications, copyright applications, or mask work
applications, to transfer ownership to the Company of the application and of the
registration once it issues, and all registered patents, trademarks, service
marks and copyrights owned by the Company are valid and subsisting and in full
force and effect; and (iii) Company Intellectual Property is all the
Intellectual Property that is necessary for the ownership, maintenance and
operation of the Company's properties and assets and the Company has the right
to make, use, sell or license as necessary in the conduct of its business all of
the Company Intellectual Property in all jurisdictions in which the Company
conducts or proposes to conduct its business. The consummation of the
transactions contemplated hereby will not alter or impair any such rights in any
manner which, individually or in the aggregate, would have a Material Adverse
Effect (other than as a result of limitations arising because of contractual or
other restrictions to which the Purchaser or its affiliates is a party). Other
than exceptions which, individually or in the aggregate, would not have a
Material Adverse Effect, (i) the Company has not, and the continued operation of
the Company's and its Subsidiaries' businesses as presently conducted will not,
interfere with, infringe upon, misappropriate or otherwise come into conflict
with, any Intellectual Property rights of third parties, and the Company has not
received any charge, complaint, claim, demand or notice so alleging (including
any claim that the Company must license or refrain from using any Intellectual
Property rights of any third party); (ii) the Company has never agreed to defend
or indemnify any person for or against any interference, infringement,
misappropriation or other conflict with respect to any Company Intellectual
Property, other than in license agreements with customers and agreements with
business partners entered into in the ordinary course of business (and in
substantially all such agreements, the Company has excluded consequential
-21-
23
damages and in the remainder of such agreements, has limited consequential
damages); (iii) no third party has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Company Intellectual
Property; and (iv) no action, suit, proceeding or hearing, or to the knowledge
of the Company, investigation, charge, complaint, claim or demand, has been
made, is pending, or, to the knowledge of the Company, is threatened which
challenges the legality, validity, enforceability, use or ownership of any
Company Intellectual Property. Except as set forth in Section 4.14B(b) of the
Company Disclosure Letter, the Company does not license any Intellectual
Property from any third party which Intellectual Property is integral to the
operation of the Company's independently developed core standard software
products. The Company has obtained from all of its employees, former employees,
independent contractors and former independent contractors (collectively,
"Inventors") valid and effective assignments of all of such Inventors' rights in
any Intellectual Property developed by such Inventors while employed by, or
under contract with, the Company or its predecessor, except where the failure to
obtain such assignments, individually or in the aggregate, would not have a
Material Adverse Effect.
"Company Intellectual Property" means (a) all inventions
(whether patentable or unpatentable and whether or not reduced to practice), all
improvements thereon, and all patents, patent applications and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof, (b) all
trademarks, service marks, trade dress, logos, trade names, domain names, and
corporate names, together with all translations, adaptations, derivations and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations and renewals in connection therewith, (c) all
copyrightable works, all copyrights and all applications, registrations and
renewals in connection therewith, (d) all mask works and all applications,
registrations and renewals in connection therewith, (e) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, methods, schematics, technology, technical data, designs, drawings,
flowcharts, block diagrams, specifications, customer and supplier lists, pricing
and cost information and business and marketing plans and proposals), (f) all
computer software (including data and related documentation) (g) all other
proprietary rights, and (h) all licenses, sublicenses, or agreements related to
the foregoing categories of intellectual property listed in subsections (a)
through (g) herein (categories (a) through (h) herein are collectively referred
to as "Intellectual Property") which is used, has been used, or is proposed to
be used in connection with the Business.
4.15. Permits. The Company and its Subsidiaries are in
possession of all franchises, grants, authorizations, licenses, permits,
easements, variances, exceptions, consents, certificates, approvals and orders
of any court, governmental or regulatory authority necessary for the Company and
its Subsidiaries to own, lease and operate its
-22-
24
properties or to lawfully conduct their respective businesses as presently
conducted (the "Company Permits"), except where the failure to have any of the
Company Permits, individually or in the aggregate, would not have a Material
Adverse Effect. As of the date hereof, no suspension or cancellation of any of
the Company Permits is pending or, to the knowledge of the Company threatened,
except where the suspension or cancellation of any of the Company Permits,
individually or in the aggregate, would not have a Material Adverse Effect.
4.16. Environmental Matters. (a) Except as set forth in the
Company Reports filed prior to the date hereof and with such other exceptions
which, individually or in the aggregate, would not have a Material and Adverse
Effect:
(i) the Company and each of its Subsidiaries has at
all times been operated, and is, in compliance with all applicable Environmental
Laws, and neither the Company nor any of its Subsidiaries has received any
written communication from any Person or Governmental Entity that alleges that
the Company or any of its Subsidiaries is not in compliance with applicable
Environmental Laws;
(ii) the Company and each of its Subsidiaries has
obtained or has applied for all applicable environmental, health and safety
permits, licenses, variances, approvals and authorizations required under
Environmental Laws (collectively, "Environmental Permits") necessary for the
conduct of its operations, and such Environmental Permits are in effect or,
where applicable, a renewal application has been timely filed, and the Company
and its Subsidiaries are in compliance in all respects with all terms and
conditions of such Environmental Permits;
(iii) there is no Environmental Claim pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries;
(iv) to the knowledge of the Company, there have been
no Releases of any Hazardous Materials that would be reasonably likely to form
the basis of any material Environmental Claim against the Company, any of its
Subsidiaries or any predecessor thereof; and
(v) none of the properties currently owned, leased or
operated, or, to the knowledge of the Company, formerly owned, leased or
operated, by the Company, its Subsidiaries or any predecessor thereof, are now,
or were in the past, listed on the National Priorities List of Superfund Sites,
any analogous state list or any database listing sites for the purpose of
investigation under Environmental Laws.
(b) For purposes of this Agreement:
(i) "Environmental Claim" means any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
information requests,
-23-
25
directives, claims, liens, investigations, proceedings or notices of
noncompliance, violation or status as a potentially responsible person or
otherwise liable party by any Person (including any Governmental Entity)
relating to or alleging potential liability (including, without limitation,
potential responsibility for or liability for enforcement, investigatory costs,
cleanup costs, response costs, removal costs, natural resources damages,
property damages, personal injuries or penalties) relating to (A) the presence,
or Release or threatened Release into the environment, of any Hazardous
Materials at any location; or (B) circumstances forming the basis of any
violation or alleged violation of any Environmental Law; or (C) any and all
claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief relating to any Environmental Laws.
(ii) "Environmental Laws" means all applicable
federal, state and local laws, rules, requirements, regulations and judicial or
administrative opinions, orders or decrees, and any common law causes of action,
in each case relating to pollution, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or protection of human or employee health or safety including, without
limitation, laws and regulations relating to Releases of Hazardous Materials.
(iii) "Hazardous Materials" means (A) any petroleum
or any by-products or fractions thereof, asbestos or asbestos-containing
materials, urea formaldehyde foam insulation, any form of natural gas,
explosives, polychlorinated biphenyls ("PCBs"), radioactive materials, ionizing
radiation or electromagnetic field radiation; (B) any chemicals, materials or
substances which are included in the definition of "wastes," "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
substances," "toxic substances," "toxic pollutants," "pollutants,"
"contaminants," or words of similar import under any Environmental Law; and (C)
any other chemical, material or substance, regulated under any Environmental
Law.
(iv) "Release" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including without limitation ambient air,
atmosphere, soil, surface water, groundwater or property).
4.17. Title to Assets. The Company and its Subsidiaries have
good and marketable title to all of their real and personal properties and
assets reflected in the 1999 Balance Sheet (other than assets disposed of since
March 31, 1999 in the ordinary course of business, and properties and assets
acquired since March 31, 1999), in each case free and clear of all Encumbrances
except for (i) liens for Taxes accrued but not yet payable; (ii) liens arising
as a matter of law in the ordinary course of business with respect to
obligations incurred after the date of the 1999 Balance Sheet, provided that the
obligations secured by such liens are not delinquent; (iii) such imperfections
of title and
-24-
26
Encumbrances, if any, as would not have a Material Adverse Effect; and (iv) the
matters set forth in Section 4.7 of the Company Disclosure Letter. The Company
and its Subsidiaries own, or have valid leasehold interests in, all properties
and assets used in the conduct of their business. Any real property and other
assets held under lease by the Company or any of its Subsidiaries are held under
valid, subsisting and enforceable leases with such exceptions which,
individually or in the aggregate, would not interfere with the use made or
proposed to be made by the Company or any of its Subsidiaries of such property.
4.18. Insurance Policies. The Company and its Subsidiaries
have obtained and maintained in full force and effect insurance with insurance
companies or associations in such amounts, on such terms and covering such
risks, as is customarily carried by reasonably prudent persons conducting
businesses or owning or leasing assets similar to those conducted, owned or
leased by the Company, except where the failure to obtain or maintain such
insurance, individually or in the aggregate, would not have a Material Adverse
Effect.
4.19. Material Contracts. Section 4.19 of the Company
Disclosure Letter sets forth a list of all (i) Contracts for borrowed money or
guarantees thereof, (ii) Contracts containing non-compete covenants restricting
the business activities of the Company or its Subsidiaries and (iii) Contracts
for indebtedness payable to the Company or any of its Subsidiaries from any
officers or directors or affiliates (other than the Company's Subsidiaries). All
Contracts to which the Company or any of its Subsidiaries is a party, or by
which any of their respective assets are bound, are valid and binding, in full
force and effect and, to the Company's knowledge, enforceable against the
parties thereto in accordance with their respective terms, except where the
failure to be so valid and binding, in full force and effect or enforceable,
individually or in the aggregate, would not have a Material Adverse Effect.
Except as set forth in Section 4.19 of the Company Disclosure Letter, there is
not under any such Contract, any existing default, or event, which after notice
or lapse of time, or both, would constitute a default, by the Company or any of
its Subsidiaries, or to the Company's knowledge, any other party, other than any
such defaults or events which, individually or in the aggregate, would not have
a Material Adverse Effect. As of the date hereof, the Company has no outstanding
indebtedness for borrowed money and has not incurred any indebtedness under the
Loan and Security Agreement, dated April 20, 1999, between Greyrock Capital, a
Division of NationsCredit Commercial Corporation and the Company (the "Loan
Agreement").
4.20. Opinion of Financial Advisor. The Board of Directors of
the Company has received the written opinion of the Financial Advisor to the
effect that, as of May 25, 1999, the consideration to be received by the holders
of shares of Common Stock pursuant to the Offer and the Merger is fair to such
holders from a financial point of view.
-25-
27
4.21. State Takeover Statutes. The Board of Directors of the
Company has approved the Offer, the Merger and this Agreement and such approval
is sufficient to render inapplicable to the Offer, the Merger, this Agreement
and the Option Agreement and the transactions contemplated hereby or by the
Ancillary Documents, the provisions of Section 203 of the DGCL to the extent, if
any, such Section is applicable to the transactions contemplated hereby or
thereby. To the Company's knowledge, no other state takeover statute or similar
statute or regulation applies to the Offer, the Merger or the transactions
contemplated hereby.
4.22. Required Vote of Company Stockholders. Unless the Merger
may be consummated in accordance with Section 253 of the DGCL, the only vote of
the stockholders of the Company required to adopt this Agreement, the Ancillary
Documents and to approve the Merger and the transactions contemplated hereby and
thereby, is the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock.
4.23. Rights Agreement. The Company has amended the Rights
Agreement so that the Rights Agreement will not be applicable to this Agreement,
the Offer, the announcement of the Offer, the purchase of shares of Common Stock
by Parent or Merger Sub pursuant to the Offer, the Merger, the Option Agreement
or any other action contemplated hereby or by the Ancillary Documents.
4.24. Year 2000 Compliance; Euro Compliance. (a) Except as set
forth in Section 4.24 of the Company Disclosure Letter or the Company Reports:
(i) the computer systems of the Company and its Subsidiaries are Year 2000
Compliant and Euro Compliant in all material respects; (ii) all inventory,
products and independently developed applications of the Company and its
Subsidiaries that is, consists of, includes or uses computer software is Year
2000 Compliant and Euro Compliant in all material respects; and (iii) to the
knowledge of the Company, any failure on the part of the customers of and
suppliers to the Company and its Subsidiaries to be Year 2000 Compliant by
December 31, 1999 will not have a Material Adverse Effect.
(b) The term "Year 2000 Compliant", with respect to a computer
system or software program, means that such computer system or program: (i) is
capable of recognizing, processing, managing, representing, interpreting and
manipulating correctly date-related data for dates earlier and later than
January 1, 2000; (ii) has the ability to provide date recognition for any data
element without limitation; (iii) has the ability to function automatically into
and beyond the year 2000 without human intervention and without any change in
operations associated with the advent of the year 2000; (iv) has the ability to
interpret data, dates and time correctly into and beyond the year 2000; (v) has
the ability not to produce noncompliance in existing data, nor otherwise corrupt
such data, into and beyond the year 2000; (vi) has the ability to process
correctly after January
-26-
28
1, 2000, data containing dates before that date; and (vii) has the ability to
recognize all "leap year" dates, including February 29, 2000.
(c) The term "Euro Compliant, with respect to a computer
system or software program, means that such computer system or program contain
Euro functionality enabling companies to process multiple currencies and address
the requirements of Euro compliance.
ARTICLE 5
5. Representations and Warranties of Parent, Purchaser and Merger Sub.
Parent, Purchaser and Merger Sub hereby represent and warrant to the Company as
of the date of this Agreement as follows:
5.1. Existence; Good Standing; Corporate Authority. Each of
Parent, Purchaser and Merger Sub is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to own,
operate and lease its properties and carry on its business as now conducted,
except where the failure to have such power and authority, individually or in
the aggregate, would not materially adversely affect the ability of Parent,
Purchaser and Merger Sub to consummate the transactions contemplated hereby and
by the Ancillary Documents.
5.2. Authorization, Validity and Effect of Agreements. Each of
Parent, Purchaser and Merger Sub has the requisite corporate power and authority
to execute and deliver this Agreement and the Ancillary Documents and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Ancillary Documents and the consummation by
Parent, Purchaser and Merger Sub of the transactions contemplated hereby and
thereby have been duly and validly authorized by the respective Boards of
Directors of Parent, Purchaser and Merger Sub and by Purchaser as the sole
stockholder of Merger Sub and no other corporate proceedings on the part of
Parent, Purchaser or Merger Sub are necessary to authorize this Agreement and
the Ancillary Documents or to consummate the transactions contemplated hereby
and thereby. This Agreement has been, and any Ancillary Documents at the time of
execution will have been, duly and validly executed and delivered by Parent,
Purchaser and Merger Sub, and (assuming this Agreement and such Ancillary
Documents each constitutes a valid and binding obligation of the Company)
constitutes and will constitute the valid and binding obligations of each of
Parent, Purchaser and Merger Sub, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
-27-
29
5.3. No Violation. Neither the execution and delivery of this
Agreement or any of the Ancillary Documents by Parent, Purchaser and Merger Sub,
nor the consummation by them of the transactions contemplated hereby or thereby,
will (i) violate, conflict with or result in any breach of any provision of the
respective certificates of incorporation or by-laws of Parent, Purchaser or
Merger Sub; (ii) other than the filings provided for in Section 2.3 and the
filings required under the Exchange Act and the HSR Act, require any consent,
approval or authorization of, or declaration, filing or registration with, any
Governmental Entity, the lack of which, individually or in the aggregate, would
have a material adverse effect on the ability of Parent, Purchaser or Merger Sub
to consummate the transactions contemplated hereby, (iii) violate any Laws
applicable to Parent, Purchaser or the Merger Sub or any of their respective
assets, except for violations which, individually or in the aggregate, would not
have a material adverse effect on the ability of Parent, Purchaser or Merger Sub
to consummate the transactions contemplated hereby, and (iv) violate, conflict
with or result in a breach of any provision of, constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, result in the termination or in a right of termination of, accelerate the
performance required by or benefit obtainable under, result in the creation of
any Encumbrance upon any of the properties of Parent, Purchaser or Merger Sub
under, or result in there being declared void, voidable, or without further
binding effect, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any license, franchise, permit, lease,
contract, agreement or other instrument, commitment or obligation to which
Parent, Purchaser or Merger Sub is bound, except for any of the foregoing
matters which, individually or in the aggregate, would not materially adversely
affect the ability of Parent, Purchaser and Merger Sub to consummate the
transactions contemplated hereby and by the Ancillary Documents.
5.4. Interim Operations of Merger Sub. Merger Sub was formed
solely for the purpose of engaging in the transactions contemplated hereby, has
engaged in no other business activities and has conducted its operations as
contemplated hereby.
5.5. Financing. Parent has, and will have at the time of
consummation of the Offer and at the Effective Time, funds available to it
sufficient to consummate the Offer and the Merger on the terms contemplated
hereby. At the time of consummation of the Offer and at the Effective Time,
Parent and Purchaser will cause the Merger Sub to have funds available to it
sufficient to consummate the Offer and the Merger on the terms contemplated
hereby.
5.6. Interested Stockholder. Provided that the approvals set
forth in Section 1.3(a) are obtained, as of the date hereof, (i) neither Parent,
Purchaser nor Merger Sub nor any of their affiliates is, with respect to the
Company, an "Interested Stockholder", as such term is defined in Section 203 of
the DGCL and (ii) neither Parent,
-28-
30
Purchaser nor Merger Sub nor any of their affiliates beneficially owns any
shares of Common Stock of the Company.
ARTICLE 6
6. Covenants.
6.1. Alternative Proposals. The Company agrees (a) that,
between the date hereof and the earlier of the Effective Time or the termination
of this Agreement in accordance with Article 8, neither it nor any of its
Subsidiaries shall, and it shall direct and use its best efforts to cause its
officers, directors, employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by it or any
of its Subsidiaries) (the "Representatives") not to, initiate, solicit or
encourage, directly or indirectly, any inquiries or the making or implementation
of any proposal or offer (including, without limitation, any proposal or offer
to its stockholders) with respect to a merger, acquisition, consolidation or
similar transaction involving, or any purchase of all or any significant portion
of the assets or any equity securities (other than pursuant to outstanding
Options, Warrants and Purchase Rights) of, the Company or any of its
Subsidiaries (any such proposal or offer being hereinafter referred to as an
"Alternative Proposal") or engage in any negotiations concerning, or provide any
confidential information or data to, afford access to the properties, books or
records of the Company or any of its Subsidiaries to, or have any discussions
with, any person relating to an Alternative Proposal, or otherwise facilitate
any effort or attempt to make or implement an Alternative Proposal; (b) that it
will immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing, and it will take the necessary steps to inform such
parties of the obligations undertaken in this Section 6.1; and (c) that it will
notify Purchaser immediately of the identity of the potential acquiror and the
terms of such person's or entity's proposal if any such inquiries or proposals
are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with, the
Company; provided, however, that nothing contained in this Section 6.1 shall
prohibit the Company or its Subsidiaries or its Representatives, upon approval
by the Board, from (i) prior to the acceptance for payment of shares of Common
Stock by Merger Sub pursuant to the Offer, furnishing information to, or
entering into discussions or negotiations with, any person or entity that makes
an unsolicited bona fide proposal to acquire the Company pursuant to a merger,
consolidation, share exchange, purchase of substantially all of the assets of
the Company, a business combination or other similar transaction, if, and only
to the extent that, (A) such proposal was not solicited, encouraged or knowingly
facilitated by the Company, its Subsidiaries or their agents in violation of
this Section 6.1 or the letter, dated May 27, 1999, from Wonderware Corporation
to the Company, (B) such proposal is not subject to the receipt of any necessary
financing, unless the Board has determined
-29-
31
in good faith, based on the advice of the Financial Advisor or other nationally
recognized investment banking firm, that such proposal is readily financeable
and involves consideration that provides a higher value per share than the
Merger Consideration, (C) the Board of Directors of the Company determines in
good faith after receiving a written opinion from outside counsel that the
failure to take such action would be a violation by the Board of Directors of
its fiduciary duties to stockholders imposed by Law and (D) prior to furnishing
information to, or entering into discussions or negotiations with, such person
or entity, the Company provides written notice to Purchaser to the effect that
it is furnishing information to, or entering into discussions or negotiations
with, such person or entity; and (ii) to the extent applicable, complying with
Rule 14e-2(a) promulgated under the Exchange Act with regard to an Alternative
Proposal. The Company shall keep Purchaser immediately informed of the status of
any such discussions or negotiations permitted pursuant to the previous sentence
(including the identify of such person or entity and the terms of any proposal).
Nothing in this Section 6.1 shall (x) permit the Company to terminate this
Agreement (except as specifically provided in Article 8 hereof), (y) permit the
Company to enter into any agreement with respect to an Alternative Proposal
during the term of this Agreement, or (z) affect any other obligation of the
Company under this Agreement.
6.2. Interim Operations. (a) From the date of this Agreement
until the Effective Time, except as set forth in Section 6.2 of the Company
Disclosure Letter, unless Purchaser has consented in writing thereto, the
Company shall, and shall cause its Subsidiaries to, (i) conduct its operations
according to its ordinary course of business consistent with past practice; (ii)
use its reasonable best efforts to preserve intact its business organizations
and goodwill, keep available the services of its officers and employees, and
maintain satisfactory relationships with those persons having business
relationships with them; (iii) upon the discovery thereof, promptly notify
Purchaser of the existence of any breach of any representation or warranty
contained herein (or, in the case of any representation or warranty that makes
no reference to Material Adverse Effect, any breach of such representation or
warranty in any material respect) or the occurrence of any event that would
cause any representation or warranty contained herein no longer to be true and
correct (or, in the case of any representation or warranty that makes no
reference to Material Adverse Effect, to no longer be true and correct in any
material respect); and (iv) promptly deliver to Purchaser true and correct
copies of any report, statement or schedule filed with the SEC subsequent to the
date of this Agreement, any internal monthly reports prepared for or delivered
to the Board of Directors after the date hereof and monthly financial statements
for the Company and its Subsidiaries for and as of each month end subsequent to
the date of this Agreement.
(b) From and after the date of this Agreement until the
Effective Time, except as set forth in Section 6.2 of the Company Disclosure
Letter, unless Purchaser has consented in writing thereto, the Company shall
not, and shall not permit its Subsidiaries to, (i) amend its certificate of
incorporation or by-laws; (ii) issue, sell or pledge any
-30-
32
shares of its capital stock or other ownership interest in the Company (other
than issuances of Common Stock in respect of any exercise of stock options or
warrants outstanding on the date hereof and disclosed in Section 4.4 of the
Company Disclosure Letter or pursuant to the Purchase Plan as permitted by
Section 6.9) or its Subsidiaries, or any securities convertible into or
exchangeable for any such shares or ownership interest, or any rights, warrants
or options to acquire or with respect to any such shares of capital stock,
ownership interest, or convertible or exchangeable securities (or derivative
instruments in respect of the foregoing); (iii) effect any stock split or
otherwise change its capitalization as it exists on the date hereof; (iv) grant,
confer or award any option, warrant, convertible security or other right to
acquire any shares of its capital stock or take any action to cause to be
exercisable any otherwise unexercisable option under any existing stock option
plan (except as otherwise required by the terms of such unexercisable options or
the stock option plan); (v) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital stock or
other ownership interests (other than such payments by the Subsidiaries to the
Company); (vi) directly or indirectly redeem, purchase or otherwise acquire any
shares of its capital stock or capital stock of its Subsidiaries; (vii) sell,
lease or otherwise dispose of any of its assets (including capital stock of its
Subsidiaries), other than the sale or disposition of inventory or the license of
the Company's products in the ordinary course of business or the sale, lease or
other disposition of assets which, individually or in the aggregate, are
obsolete or not material to the Company and its Subsidiaries taken as a whole;
(viii) (x) acquire by merger, purchase or any other manner, any business or
entity or (y) otherwise acquire any assets which would be material, individually
or in the aggregate, to the Company and its Subsidiaries taken as a whole,
except for purchases of inventory, supplies or capital equipment in the ordinary
course of business consistent with past practice; (ix) incur or assume any
long-term or short-term debt for borrowed money, including debt under the Loan
Agreement; provided that, upon the written consent of Purchaser (which consent
shall not be unreasonably withheld), the Company may incur or assume debt under
the Loan Agreement at any time after 75 days after the date hereof; (x) assume,
guarantee or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the debt or other obligations of any other person
excluding the endorsement of checks and other commercial instruments in the
ordinary course of business, other than obligations (other than debt) of its
Subsidiaries incurred in the ordinary course of business; (xi) make or forgive
any loans, advances or capital continuations to, or investments in, any other
person; (xii) grant any stock-related or performance awards; (xiii) enter into
any new employment, severance, consulting or salary continuation agreements with
any officers, directors or employees or grant any increases in compensation or
benefits to employees; (xiv) except to the extent required by Law, adopt or
amend in any material respect any material employee benefit plan or arrangement;
(xv) amend, change or waive (or exempt any person or entity from the effect of)
the Rights Agreement, except as contemplated by Section 4.23; (xvi) permit any
insurance policy naming the Company or any Subsidiary as a beneficiary or a loss
payee
-31-
33
to be canceled or terminated other than in the ordinary course of business;
(xvii) settle or compromise any pending or threatened Litigation; (xviii) make
any Tax election or settle any Tax liability other than settlements involving
solely the payment of money (without admission of liability) not to exceed
$50,000; and (xix) agree in writing or otherwise to take any of the foregoing
actions.
6.3. Company Stockholder Approval; Proxy Statement. (a) If
approval or action in respect of the Merger by the stockholders of the Company
is required by applicable Law, the Company, acting through the Board, shall (i)
call as promptly as practicable following the consummation of the Offer, a
meeting of its stockholders (the "Stockholders Meeting") for the purpose of
voting upon the Merger, (ii) hold the Stockholders Meeting as soon as
practicable following the purchase of shares of Common Stock pursuant to the
Offer, and (iii) recommend to its stockholders the approval of the Merger. The
record date for the Stockholders Meeting shall be a date subsequent to the date
on which Purchaser or Merger Sub becomes a record holder of Common Stock
purchased pursuant to the Offer.
(b) If required by applicable Law, the Company will, as soon
as practicable following the expiration of the Offer, prepare and file a
preliminary Proxy Statement (such proxy statement, and any amendments or
supplements thereto, the "Proxy Statement") or, if applicable, an information
statement with the SEC with respect to the Stockholders Meeting and will use its
best efforts to respond to any comments of the SEC or its staff and to cause the
Proxy Statement to be cleared by the SEC. The Company will notify Purchaser of
the receipt of any comments from the SEC or its staff and of any request by the
SEC or its staff for amendments or supplements to the Proxy Statement or for
additional information and will supply Purchaser with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC or its staff, on the other hand, with respect to the Proxy
Statement or the Merger. The Company shall give Purchaser and its counsel the
opportunity to review the Proxy Statement prior to it being filed with the SEC
and shall give Purchaser and its counsel the opportunity to review all
amendments and supplements to the Proxy Statement and all responses to requests
for additional information and replies to comments prior to their being filed
with, or sent to, the SEC. Each of the Company and Purchaser agrees to use its
best efforts, after consultation with the other parties hereto, to respond
promptly to all such comments of and requests by the SEC. As promptly as
practicable after the Proxy Statement has been cleared by the SEC, the Company
shall mail the Proxy Statement to the stockholders of the Company. If at any
time prior to the approval of this Agreement by the Company's stockholders there
shall occur any event which should be set forth in an amendment or supplement to
the Proxy Statement, the Company will prepare and mail to its stockholders such
an amendment or supplement.
(c) The Company represents and warrants that the Proxy
Statement will comply in all material respects with the Exchange Act and, at the
respective times filed
-32-
34
with the SEC and distributed to stockholders of the Company, will 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 the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation or warranty as to
any information included in the Proxy Statement that was provided by Parent,
Purchaser or Merger Sub. Purchaser represents and warrants that none of the
information supplied by Parent, Purchaser or Merger Sub for inclusion in the
Proxy Statement will, at the respective times filed with the SEC and distributed
to stockholders of the Company, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) Following the consummation of the Offer, the Company shall
use its best efforts to obtain the necessary approvals by its stockholders of
the Merger, this Agreement and the transactions contemplated hereby.
(e) Parent agrees to cause all shares of Common Stock
purchased by Merger Sub pursuant to the Offer and all other shares of Common
Stock owned by Purchaser, Merger Sub or any other subsidiary or affiliate of
Parent to be voted in favor of the approval of the Merger.
6.4. Filings; Other Action. Subject to the terms and
conditions herein provided, the Company, Parent, Purchaser, and Merger Sub
shall: (a) use their reasonable best efforts to cooperate with one another in
(i) determining which filings other than under the Exchange Act and under the
HSR are required to be made prior to the expiration of the Offer or the
Effective Time with, and which consents, approvals, permits or authorizations
are required to be obtained prior to the Effective Time from, Governmental
Entities or other third parties in connection with the execution and delivery of
this Agreement and any other Ancillary Documents and the consummation of the
transactions contemplated hereby and thereby and (ii) timely making all filings
under the Exchange Act and under the HSR and all such other filings and timely
seek all required consents, approvals, permits, authorizations and waivers; and
(b) use their reasonable best efforts to take, or cause to be taken, all other
action and do, or cause to be done, all other things necessary, proper or
appropriate to consummate and make effective the transactions contemplated by
this Agreement at the earliest practicable time. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out the
purpose of this Agreement, the proper officers and directors of Parent,
Purchaser and the Surviving Corporation shall take all such necessary action.
6.5. Access to Information. (a) From the date of this
Agreement until the Closing, the Company shall, and shall cause its Subsidiaries
to, (i) give Purchaser and
-33-
35
its authorized representatives full access to all books, records, personnel,
offices and other facilities and properties of the Company and its Subsidiaries
and their accountants and accountants' work papers, (ii) permit Purchaser to
make such copies and inspections thereof as Purchaser may reasonably request and
(iii) furnish Purchaser with such financial and operating data and other
information with respect to the business and properties of the Company and its
Subsidiaries as Purchaser may from time to time reasonably request; provided
that no investigation or information furnished pursuant to this Section 6.5
shall affect any representation or warranty made herein by the Company or the
conditions to the obligations of Parent, Purchaser and Merger Sub to consummate
the transactions contemplated by this Agreement.
(b) All such information shall be subject to the terms and
conditions of the Confidentiality Agreement.
6.6. Publicity. The initial press release relating to this
Agreement shall be issued jointly by the Company and Parent. Thereafter, subject
to their respective legal obligations, the Company and Parent shall consult with
each other, and use reasonable efforts to agree upon the text of any press
release, before issuing any such press release or otherwise making public
statements with respect to the transactions contemplated hereby and in making
any filings with any Governmental Entity or with any national securities
exchange with respect thereto.
6.7. Further Action. Each party hereto shall, subject to the
fulfillment at or before the Effective Time of each of the conditions of
performance set forth herein or the waiver thereof, perform such further acts
and execute such documents as may be reasonably required to effect the Merger.
6.8. Insurance; Indemnity. (a) Purchaser will cause the
Surviving Corporation to maintain in effect for not less than three years after
the Effective Time, the Company's current directors and officers insurance
policies, if such insurance is obtainable (or policies of at least the same
coverage containing terms and conditions no less advantageous to the current and
all former directors and officers of the Company) with respect to acts or
failures to act prior to the Effective Time, including acts relating to the
transactions contemplated by this Agreement; provided, however, that in order to
maintain or procure such coverage, Purchaser and the Surviving Corporation shall
not be required to maintain or obtain policies providing such coverage except to
the extent such coverage can be provided at an annual cost of no greater than
1.5 times the most recent annual premium paid by the Company prior to the date
hereof (the "Cap"); and provided, further, that if equivalent coverage cannot be
obtained, or can be obtained only by paying an annual premium in excess of the
Cap, Purchaser or the Surviving Corporation shall only be required to obtain as
much coverage as can be obtained by paying an annual premium equal to the Cap.
-34-
36
(b) From and after the Effective Time, Purchaser and the
Surviving Corporation shall indemnify and hold harmless each person who is, or
has been at any time prior to the date hereof or who becomes prior to the
Effective Time, an officer or director of the Company or any of its Subsidiaries
(each, an "Indemnified Party"), in connection with any claim, action, suit,
proceeding or investigation (an "Action") arising out of or pertaining to acts
or omissions by them in their capacities as such, which acts or omissions
occurred prior to the Effective Time, whether asserted or claimed prior to, at
or after the Effective Time, at least to the extent that such Indemnified Party
is presently indemnified by the Company. In the event of any such Action, the
Surviving Corporation shall control the defense of such Action with counsel
selected by the Surviving Corporation, which counsel shall be reasonably
acceptable to the Indemnified Party; provided, however, that the Indemnified
Party shall be permitted to participate in the defense of such Action through
counsel selected by the Indemnified Party, which counsel shall be reasonably
acceptable to the Surviving Corporation, at the Indemnified Party's expense.
Notwithstanding the foregoing, if there is any conflict between the Surviving
Corporation and any Indemnified Parties or there are additional defenses
available to any Indemnified Parties, the Indemnified Parties shall be permitted
to participate in the defense of such Action with counsel selected by the
Indemnified Parties, which counsel shall be reasonably acceptable to the
Surviving Corporation, and Purchaser shall cause the Surviving Corporation to
pay the reasonable fees and expenses of such counsel, as accrued and in advance
of the final disposition of such Action to the fullest extent permitted by
applicable law; provided, however, that the Surviving Corporation shall not be
obligated to pay the reasonable fees and expenses of more than one counsel for
all Indemnified Parties in any single Action except to the extent that, in the
opinion of counsel for the Indemnified Parties, two or more of such Indemnified
Parties have conflicting interests in the outcome of such Action. The Surviving
Corporation shall not be liable for any settlement effected without its written
consent, which consent shall not unreasonably be withheld.
(c) Purchaser shall cause the Surviving Corporation promptly
to adopt and keep in effect provisions in the Surviving Corporation's
certificate of incorporation and by-laws to provide for exculpation of director
and officer liability and indemnification (and advancement of expenses related
thereto) of the past and present officers and directors of the Company at least
to the extent they are presently indemnified by the Company and such provisions
shall not be amended except as either required by applicable Law or to make
changes permitted by Law that would enhance the rights of past or present
officers and directors to indemnification or advancement of expenses. Purchaser
shall cause the Surviving Corporation to comply with the terms and conditions of
all existing indemnification agreements with the Company's officers and
directors.
-35-
37
(d) If Parent, Purchaser or the Surviving Corporation or any
of their respective successors or assigns (i) shall consolidate with or merge
into any other corporation or other entity and shall not be the continuing or
surviving corporation or entity of the consolidation or merger or (ii) shall
transfer all or substantially all of its properties and assets to any
individual, corporation or other entity, then and in each such case, proper
provisions shall be made so that the successors and assigns of Parent, Purchaser
or the Surviving Corporation shall assume all of the obligations set forth in
this Section 6.8.
(e) The provisions of this Section 6.8 are intended to be for
the benefit of, and shall be enforceable by, each of the Indemnified Parties,
their heirs and their representatives.
6.9. Employee Stock Purchase Plan. The Company shall take such
action as is required to cause the current "Payment Period" under the Purchase
Plan to terminate on the earlier of the Effective Time and July 23, 1999. If the
Offer is consummated on or before the final day of the current Payment Period
under the Purchase Plan, the holders of Purchase Rights shall receive from the
Company, promptly after the last day of the Payment Period, a cash payment in
exchange for each share of Common Stock issuable upon exercise of such holder's
Purchase Rights as of the last day of the Payment Period as set forth in the
first sentence hereof, in an amount equal to the Merger Consideration, and each
such Purchase Right shall terminate automatically upon such payment. If the
Offer is not consummated on or before the final day of the current Payment
Period, the Purchase Rights will be exercisable solely for Common Stock in
accordance with the terms of the Purchase Plan. So long as this Agreement has
not been terminated, no additional Payment Period shall begin after the
termination of the current Payment Period.
6.10. Employee Benefits Plan. (a) From and after the Effective
Time, the Surviving Corporation and its Subsidiaries will honor in accordance
with their terms all existing employment, severance, consulting and salary
continuation agreements between the Company or any of its Subsidiaries and any
current or former officer, director, employee or consultant of the Company or
any of its Subsidiaries or group of such officers, directors, employees or
consultants which agreements have been previously disclosed to Purchaser.
(b) To the extent permitted under applicable law, each
employee of the Company or its subsidiaries shall be given credit for all
service with the Company or its Subsidiaries (or service credited by the Company
or its Subsidiaries) under all employee benefit plans, programs, policies and
arrangements maintained by the Surviving Corporation or Purchaser in which they
participate or in which they become participants for purposes of eligibility and
vesting (but not benefit accrual), but only to the extent such years of service
would have been credited under the relevant plan of Purchaser or its
-36-
38
Subsidiaries if the employee had been a similarly situated employee of Purchaser
or its Subsidiaries during the relevant period of time.
(c) To the extent that any benefit plan of the Surviving
Corporation or any of its Subsidiaries in which an employee of the Company or
its Subsidiaries participates after the Effective Time provides medical or
dental benefits, the Surviving Corporation shall cause any eligible expenses
incurred by such employee on or before the Effective Time under a similar
Company Employee Benefit Plan to be taken into account under the Surviving
Corporation or its Subsidiaries' plan for purposes of satisfying all deductible,
coinsurance and maximum out-of-pocket requirements applicable to such employee
and his or her covered dependents for the applicable plan year. The Surviving
Corporation agrees to cause to maintain the Company's Flexible Benefits Plan, as
in effect as of the date hereof, through the end of its current plan year.
ARTICLE 7
7. Conditions.
7.1. Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction or waiver, where permissible, prior to the Effective
Time, of the following conditions:
(a) If approval of this Agreement and the Merger by the
holders of Common Stock is required by applicable Law, this Agreement and the
Merger shall have been approved by the requisite vote of such holders.
(b) There shall not have been issued any injunction, or issued
or enacted any Law, which prohibits or has the effect of prohibiting the
consummation of the Merger or makes such consummation illegal.
7.2. Conditions to Obligation of Purchaser and Merger Sub to
Effect the Merger. The obligations of Purchaser and Merger Sub to effect the
Merger shall be further subject to the satisfaction or waiver, on or prior to
the Effective Time, of the condition that Purchaser shall have accepted for
payment and paid for all of the shares of Common Stock tendered pursuant to the
Offer.
ARTICLE 8
8. Termination.
8.1. Termination. This Agreement, notwithstanding approval
thereof by the stockholders of the Company, may be terminated at any time prior
to the Effective Time:
-37-
39
(a) by mutual written consent of the Board of Directors of the
Company and the Purchaser;
(b) by the Purchaser or the Company:
(i) if the Effective Time shall not have occurred on
or before November 30, 1999 (provided that the right to
terminate this Agreement pursuant to this clause (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 the Effective Time to occur on or
before such date);
(ii) if there shall be any Law that makes
consummation of the Offer or the Merger illegal or prohibited,
or if any court of competent jurisdiction in the United States
or other Governmental Entity shall have issued an order,
judgment, decree or ruling, or taken any other action
restraining, enjoining or otherwise prohibiting the Merger and
such order, judgment, decree, ruling or other action shall
have become final and non-appealable;
(iii) if the Offer terminates or expires on account
of the failure of any condition specified in Exhibit A without
the Merger Sub having purchased any shares of Common Stock
thereunder (provided that the right to terminate this
Agreement pursuant to this clause (iii) 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 any such condition); or
(iv) if, upon a vote at a duly held meeting, or upon
any adjournment thereof, the stockholders of the Company shall
have failed to give any approval required by applicable Law;
(c) by the Company if there is an Alternative Proposal which
the Board of Directors in good faith determines is more favorable from a
financial point of view to the stockholders of the Company as compared to the
Offer and the Merger, and the Board of Directors determines in good faith after
receiving a written opinion from outside counsel, that failure to terminate this
Agreement would constitute a violation by the Board of Directors of its
fiduciary duties to stockholders imposed by Law; provided, however, that the
right to terminate this Agreement pursuant to this Section 8.1(c) shall not be
available (i) if the Company has breached its obligations under Section 6.1, or
(ii) if the Alternative Proposal (x) is subject to a financing condition or (y)
involves consideration that is not entirely cash or does not permit stockholders
to receive the payment of the offered consideration in respect of all shares at
the same time, unless the Board has determined in good faith, based on the
advice of the Financial Advisor or other nationally recognized
-38-
40
investment banking firm, that (in the case of clause (x)) the Alternative
Proposal is readily financeable and (in the case of clause (y)) that such offer
provides a higher value per share than the consideration per share pursuant to
the Offer or the Merger, or (iii) if, prior to or concurrently with any
purported termination pursuant to this Section 8.1(c), the Company shall not
have paid the fees contemplated by Section 8.2, or (iv) if the Company has not
provided Purchaser and Merger Sub with three business days prior written notice
of its intent to so terminate this Agreement and delivered to the Purchaser and
Merger Sub a copy of the written agreement embodying the Alternative Proposal in
its then most definitive form; and
(d) by Purchaser if the Board of Directors shall have failed
to recommend, or shall have withdrawn, modified or amended its approval in a
manner adverse or recommendation of the Offer or the Merger in a manner adverse
to Purchaser, or shall have resolved to do any of the foregoing.
8.2. Effect of Termination and Abandonment. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to this
Article 8, all obligations of the parties hereto shall terminate, except the
obligations of the parties pursuant to this Section 8.2 and Sections 6.5(b),
6.6, 9.5 and 9.6. If this Agreement (i) shall terminate pursuant to Section
8.1(b)(iii) as a result of the failure of the Company to satisfy any of the
conditions set forth in paragraphs (d), (e) or (f) of Exhibit A, or pursuant to
Sections 8.1(c) or 8.1(d), or (ii) in the event that an Alternative Proposal
shall have been made known to the Company or shall have been made directly to
the stockholders of the Company generally or shall have otherwise become
publicly known or any person shall have publicly announced an intention (whether
or not conditional) to make an Alternative Proposal and thereafter this
Agreement is terminated by either Purchaser or the Company pursuant to (x)
Section 8.1(b)(i) or (y) Section 8.1(b)(iii) as a result of the failure of the
Minimum Condition to be satisfied prior to the expiration of the Offer, then the
Company shall concurrently with any such termination, pay to Purchaser a fee
equal to $3,000,000 (the "Termination Fee"); provided, however, that the
Termination Fee shall not be payable to Purchaser pursuant to clause (ii) of
this Section 8.2 unless and until within 12 months of such termination the
Company or any of its Subsidiaries enters into any definitive agreement with
respect to any Alternative Proposal or any Alternative Proposal is consummated,
in which event the Termination Fee shall be payable upon consummation thereof.
The parties agree that such Termination Fee shall be Parent's, Purchaser's and
Merger Sub's exclusive remedy for any loss, liability, damage or claim arising
out of or in connection with any such termination of this Agreement. The
Termination Fee shall be exclusive of any expenses paid pursuant to Section 9.6.
The Company acknowledges that the agreements contained in this Section 8.2 are
an integral part of the transactions contemplated by this Agreement, and that,
without these agreements, Parent, Purchaser and Merger Sub would not enter into
this Agreement.
-39-
41
8.3. Amendment. To the extent permitted by applicable law,
this Agreement may be amended by action taken by or on behalf of the Board of
Directors of the Company (subject to Section 1.4) and Parent and Purchaser at
any time before or after adoption of this Agreement by the stockholders of the
Company but, after any such stockholder approval, no amendment shall be made
which decreases the Merger Consideration or which adversely affects the rights
of, or the income tax consequences to, the Company's stockholders hereunder
without the approval of such stockholders. This Agreement may not be amended
except by an instrument in writing signed on behalf of all of the parties.
8.4. Extension; Waiver. At any time prior to the Effective
Time, any party hereto, by action taken by its board of directors, may, to the
extent legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE 9
9. General Provisions.
9.1. Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement, or in any instrument
delivered pursuant to this Agreement, shall survive the Effective Time.
9.2. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered personally or
mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier or sent by facsimile, to the applicable
party at the following addresses or facsimile numbers (or at such other address
or telecopy number for a party as shall be specified by like notice):
If to Purchaser or Merger Sub: If to the Company:
Foxboro Company Marcam Solutions, Inc.
00 Xxxxxxxxxx Xxxxxx 00 Xxxxx Xxxxxx
X00-XX Xxxxxx, Xxxxxxxxxxxxx 00000
-40-
42
Foxboro, Massachusetts 02035-2099 Attention: President
Attention: Xx. Xxxxxx Xxxxxx Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
With copies to: With a copy to:
Xxxxx, Xxxxx, Harris, Testa, Xxxxxxx & Xxxxxxxxx, LLP
Xxxxxxx & Xxxxxxxx 000 Xxxx Xxxxxx
Xxx Xxx Xxxx Plaza Boston, Massachusetts 02110
Xxx Xxxx, XX 00000 Attention: Xxxx X. Xxxxxxx, Esq. and
Attention: Xxxx X. Xxxxxxxxx, Esq. Xxxxx X. Xxxxxx, Xx., Esq.
Facsimile: (000) 000-0000 Facsimile (000) 000-0000
and
Wonderware Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
9.3. Assignment; Binding Effect. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties; provided, however, that either
Purchaser or Merger Sub (or both) may assign its rights hereunder (including,
without limitation, the right to make the Offer and/or to purchase shares of
Common Stock pursuant to the Offer) to a wholly owned subsidiary or subsidiaries
of Parent; and, further provided that nothing shall relieve the assignor from
its obligations hereunder. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. Notwithstanding anything contained in
this Agreement to the contrary, except for the provisions of Sections 6.8 and
6.10 which may be enforced directly by the beneficiaries thereof, nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
9.4. Entire Agreement. This Agreement, the Confidentiality
Agreement, the Company Disclosure Letter, the Exhibits, the Ancillary Documents
and any other documents delivered by the parties in connection herewith
constitute the entire
-41-
43
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto.
9.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company, Parent, Purchaser and Merger
Sub hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of any federal district court located in the City of Wilmington,
Delaware or any court of the State of Delaware located in the City of Wilmington
(the "Delaware Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts and agrees not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum.
9.6. Fees and Expenses. Except as otherwise provided in
Section 8.2, whether or not the Offer or the Merger is consummated, all fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
9.7. Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(i) "affiliate" of a Person means a Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned Person.
(ii) "knowledge" of any party hereto shall mean the
knowledge of any of the executive officers of that party after due inquiry by
such officers.
(iii) "Person" means an individual, corporation,
partnership, limited liability company, association, trust, unincorporated
organization, entity or group (as defined in the Exchange Act).
9.8. Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever. The table of contents contained
in this Agreement is for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.9. Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural
-42-
44
persons shall include corporations and partnerships and vice versa. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be understood to be followed by the words "without limitation."
9.10. Waivers. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement or in any of the Ancillary Documents. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
9.11. Severability. Any term or provision of this Agreement
that 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.
9.12. Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware Court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
9.13. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which, when so executed and
delivered, shall be an original. All such counterparts shall together constitute
one and the same instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
-43-
45
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
MARCAM SOLUTIONS, INC. INVENSYS, plc
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxx
----------------------------- -----------------------------
Name: Xxxxxxxx X. Xxxxx Name: Xxxxx Xxxxx
Title: President Title: President and CEO
M ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: President
M MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
-1-
46
TABLE OF CONTENTS
Page
ARTICLE 1................................................................................................ 1
1. The Offer................................................................................... 1
1.1. The Offer.......................................................................... 1
1.2. Actions by Purchaser and Merger Sub................................................ 3
1.3. Actions by the Company............................................................. 3
1.4. Directors.......................................................................... 5
ARTICLE 2................................................................................................ 6
2. The Merger.................................................................................. 6
2.1. The Merger......................................................................... 6
2.2. The Closing........................................................................ 7
2.3. Effective Time..................................................................... 7
2.4. Certificate of Incorporation, Bylaws, Directors and Officers of the
Surviving Corporation.............................................................. 7
ARTICLE 3................................................................................................ 8
3. Effect of the Merger on Securities of Merger Sub and the Company............................ 8
3.1. Merger Sub Stock................................................................... 8
3.2. Company Securities................................................................. 8
3.3. Exchange of Certificates Representing Common Stock................................. 10
3.4. Adjustment of Merger Consideration................................................. 11
3.5. Dissenting Company Stockholders.................................................... 11
3.6. Merger Without Meeting of Stockholders............................................. 11
ARTICLE 4................................................................................................ 11
4. Representations and Warranties of the Company............................................... 12
4.1. Existence; Good Standing; Corporate Authority...................................... 12
4.2. Authorization, Validity and Effect of Agreements................................... 12
4.3. Compliance with Laws............................................................... 13
4.4. Capitalization, etc. .............................................................. 13
4.5. Subsidiaries....................................................................... 14
4.6. No Violation....................................................................... 14
4.7. Company Reports; Offer Documents................................................... 15
4.8. Litigation......................................................................... 17
4.9. Absence of Certain Changes......................................................... 17
4.10. Taxes.............................................................................. 18
4.11. Employee Benefit Plans............................................................. 19
4.12. Labor and Employment Matters....................................................... 20
4.13. Brokers............................................................................ 21
4.14. Intellectual Property Rights....................................................... 21
-i-
47
4.15. Permits............................................................................ 23
4.16. Environmental Matters.............................................................. 23
4.17. Title to Assets.................................................................... 25
4.18. Insurance Policies................................................................. 25
4.19. Material Contracts................................................................. 25
4.20. Opinion of Financial Advisor....................................................... 26
4.21. State Takeover Statutes............................................................ 26
4.22. Required Vote of Company Stockholders.............................................. 26
4.23. Rights Agreement................................................................... 26
4.24. Year 2000 Compliance, Euro Compliance.............................................. 26
ARTICLE 5................................................................................................ 27
5. Representations and Warranties of Purchaser and Merger Sub.................................. 27
5.1. Existence; Good Standing; Corporate Authority...................................... 28
5.2. Authorization, Validity and Effect of Agreements................................... 28
5.3. No Violation....................................................................... 29
5.4. Interim Operations of Merger Sub................................................... 29
5.5. Financing.......................................................................... 29
5.6. Interested Stockholder............................................................. 29
ARTICLE 6................................................................................................ 29
6. Covenants................................................................................... 29
6.1. Alternative Proposals.............................................................. 31
6.2. Interim Operations................................................................. 31
6.3. Company Stockholder Approval; Proxy Statement...................................... 32
6.4. Filings; Other Action.............................................................. 34
6.5. Access to Information.............................................................. 35
6.6. Publicity.......................................................................... 35
6.7. Further Action..................................................................... 35
6.8. Insurance; Indemnity............................................................... 35
6.9. Employee Stock Purchase Plan....................................................... 36
6.10. Employee Benefits Plan............................................................. 37
ARTICLE 7................................................................................................ 38
7. Conditions.................................................................................. 38
7.1. Conditions to Each Party's Obligation to Effect the Merger......................... 38
7.2. Conditions to Obligation of Purchaser and Merger Sub to Effect the
Merger............................................................................. 38
ARTICLE 8................................................................................................ 38
8. Termination................................................................................. 38
8.1. Termination........................................................................ 38
8.2. Effect of Termination and Abandonment.............................................. 40
8.3. Amendment.......................................................................... 40
8.4. Extension; Waiver.................................................................. 41
-ii-
48
ARTICLE 9................................................................................................ 41
9. General Provisions......................................................................... 41
9.1. Nonsurvival of Representations and Warranties...................................... 41
9.2. Notices............................................................................ 41
9.3. Assignment; Binding Effect......................................................... 42
9.4. Entire Agreement................................................................... 42
9.5. Governing Law...................................................................... 42
9.6. Fee and Expenses................................................................... 43
9.7. Certain Definitions................................................................ 43
9.8. Headings........................................................................... 43
9.9. Interpretation..................................................................... 43
9.10. Waivers............................................................................ 43
9.11. Severability....................................................................... 43
9.12. Enforcement of Agreement........................................................... 44
9.13. Counterparts....................................................................... 44
-iii-
49
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer, Merger Sub shall not be
required to accept for payment or pay for, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) of the Exchange Act, any shares
of Common Stock not theretofore accepted for payment or paid for and may
terminate or amend the Offer as to such shares of Common Stock to the extent
permitted by this Agreement unless (i) there shall have been validly tendered
and not withdrawn prior to the expiration of the Offer that number of shares of
Common Stock which would represent at least a majority of the outstanding shares
of Common Stock on a fully diluted basis (the "Minimum Condition") and (ii) any
waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, applicable to the purchase of shares of Common Stock pursuant to the
Offer shall have expired or been terminated. Furthermore, notwithstanding any
other term of the Offer or this Agreement, Merger Sub shall not be required to
accept for payment or, subject as aforesaid, to pay for any shares of Common
Stock not theretofore accepted for payment or paid for, and may terminate or
amend the Offer to the extent permitted by this Agreement if at any time on or
after the date of this Agreement and before the acceptance of such shares of
Common Stock for payment or the payment therefor, any of the following
conditions shall exist or occur and remain in effect:
(a) there shall have been instituted, pending or threatened in
writing any litigation by the Government of the United States or by any
agency or instrumentality thereof that seeks to: (i) challenge the
acquisition by Purchaser or Merger Sub (or any of its affiliates) of
shares of Common Stock pursuant to the Offer or restrain or prohibit
the making or consummation of the Offer or the Merger, or obtain
damages in connection thereunder, (ii) make the purchase of or payment
for some or all of the shares of Common Stock pursuant to the Offer or
the Merger illegal, (iii) in connection with the Offer or the Merger or
the transactions contemplated by the Merger Agreement, impose
limitations on the ability of Purchaser or Merger Sub (or any of their
affiliates) effectively to acquire or hold, or to require Purchaser,
Merger Sub or the Company or any of their respective affiliates or
subsidiaries to dispose of or hold separate, any material portion of
their assets or the business of any one of them, (iv) impose
limitations on the ability of Purchaser, Merger Sub or their affiliates
to exercise full rights of ownership of the shares of Common Stock
purchased by it, including, without limitation, the right to vote the
shares purchased by it on all matters properly presented to the
stockholders of the Company, or (v) in connection with the Offer or the
Merger or the transactions contemplated by the Merger Agreement, affect
the Purchaser, the Merger Sub, Company or any of their respective
affiliates
-1-
50
which, in the sole judgment of Purchaser, may have or be likely to have
a Material Adverse Effect or a material adverse effect on the Purchaser
and Merger Sub or any of their affiliates or otherwise make
consummation of the Offer or the Merger or the consummation of the
transactions contemplated hereunder unduly burdensome; or
(b) there shall have been promulgated, enacted, entered,
enforced or deemed applicable to the Offer or the Merger, by any
Governmental Entity any Law that could directly or indirectly result in
any of the consequences referred to in subsection (a) above; or
(c) this Agreement shall have been terminated in accordance
with its terms; or
(d) (i) any of the representations and warranties made by the
Company in this Agreement that are qualified by materiality or Material
Adverse Effect shall not have been true and correct in all respects
when made (except to the extent that any such representation or
warranty refers specifically to another date, in which case such
representation or warranty shall be true and correct in all respects as
of such other date), or the other representations and warranties made
by the Company in this Agreement shall not have been true and correct
in all material respects when made (except to the extent that any such
representation or warranty refers specifically to another date, in
which case such representation or warranty shall be true and correct in
all material respects as of such other date), or (ii) the Company shall
have breached or failed to comply in any material respect with any of
its obligations under this Agreement; or
(e) any corporation, entity, "group" or "person" (as defined
in the Exchange Act), other than Purchaser or Merger Sub, shall have
acquired beneficial ownership of a majority of the outstanding shares
of Common Stock; or
(f) the Company's Board of Directors shall have modified or
amended its recommendation of the Offer in any manner adverse to
Purchaser or Merger Sub or shall have withdrawn its recommendation of
the Offer or shall have recommended acceptance of any Alternative
Proposal or shall have resolved to do any of the foregoing; or
(g) there shall have occurred (i) any general suspension of,
or limitation on prices for, trading in securities on any national
securities exchange or in the over the counter market in the United
States, (ii) a declaration of any banking moratorium by federal or
state authorities or any suspension of payments in respect of banks or
any limitation (whether or not mandatory) imposed by federal or state
authorities on the extension of credit by lending institutions in the
-2-
51
United States, or (iii) in the case of any of the foregoing existing at
the time of the commencement of the Offer, in the sole judgment of the
Purchaser, a material acceleration or worsening thereof.
Other than the Minimum Condition, the foregoing conditions are for the
sole benefit of Purchaser and Merger Sub and may be asserted by Purchaser or
Merger Sub regardless of the circumstances (including any action or inaction by
Purchaser or the Company) giving rise to any such condition and may be waived by
Purchaser or Merger Sub, in whole or in part, at any time and from time to time,
in the sole discretion of Purchaser. The failure by Purchaser or Merger Sub at
any time to exercise any of the foregoing rights will not be deemed a waiver of
any right, the waiver of such right with respect to any particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each right will be deemed an ongoing right which may be
asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions,
all tendered shares of Common Stock shall promptly be returned by the depositary
to the tendering stockholders.
-3-
