AGREEMENT AND PLAN OF MERGER among DYNCORP INTERNATIONAL INC., DELTA TUCKER HOLDINGS, INC. and DELTA TUCKER SUB, INC. Dated as of April 11, 2010
Exhibit 2.1
among
DELTA XXXXXX HOLDINGS, INC.
and
DELTA XXXXXX SUB, INC.
Dated as of April 11, 2010
TABLE OF CONTENTS
Page | ||||
ARTICLE I The Merger; Closing; Effective Time |
1 | |||
1.1. The Merger |
1 | |||
1.2. Closing |
1 | |||
1.3. Effective Time |
2 | |||
ARTICLE II Certificate of Incorporation and Bylaws of the Surviving Corporation |
3 | |||
2.1. The Certificate of Incorporation |
3 | |||
2.2. The Bylaws |
3 | |||
ARTICLE III Directors and Officers of the Surviving Corporation |
3 | |||
3.1. Directors |
3 | |||
3.2. Officers |
3 | |||
ARTICLE IV Effect of the Merger on Capital Stock; Exchange of Certificates |
3 | |||
4.1. Effect on Capital Stock |
3 | |||
4.2. Payment |
4 | |||
4.3. Restricted Stock Units |
7 | |||
4.4. Adjustments to Prevent Dilution |
7 | |||
ARTICLE V Representations and Warranties |
8 | |||
5.1. Representations and Warranties of the Company |
8 | |||
(a) Organization, Good Standing and Qualification; Subsidiaries |
8 | |||
(b) Capital Structure |
10 | |||
(c) Corporate Authority and Approval |
11 | |||
(d) No Conflict; Required Filings and Consents |
12 | |||
(e) Company Reports; Financial Statements |
13 | |||
(f) Absence of Certain Changes |
14 | |||
(g) Litigation; Liabilities |
14 | |||
(h) Employee Benefits |
16 | |||
(i) Labor |
19 | |||
(j) Compliance |
20 | |||
(k) Rights Agreement; Takeover Statutes |
22 | |||
(l) Environmental Matters |
23 | |||
(m) Taxes |
24 | |||
(n) Intellectual Property |
26 | |||
(o) Insurance |
27 | |||
(p) Opinion of Financial Advisors; Brokers |
27 | |||
(q) Properties |
27 | |||
(r) Affiliate Transactions |
29 | |||
(s) Contracts |
29 | |||
(t) Government Contracts |
31 |
Page | ||||
5.2. Representations and Warranties of Parent and Merger Sub |
33 | |||
(a) Organization, Good Standing and Qualification |
33 | |||
(b) Corporate Authority and Approval |
33 | |||
(c) No Conflict; Required Filings and Consents |
34 | |||
(d) Litigation |
34 | |||
(e) Financing |
35 | |||
(f) Capitalization of Merger Sub |
36 | |||
(g) Brokers |
36 | |||
(h) Solvency |
36 | |||
(i) Limited Guarantee |
37 | |||
(j) Absence of Certain Agreements |
38 | |||
(k) Stock Ownership |
38 | |||
(l) No Other Company Representations or Warranties |
38 | |||
ARTICLE VI Covenants |
39 | |||
6.1. Interim Operations |
39 | |||
6.2. Acquisition Proposals |
43 | |||
6.3. Proxy Statement |
48 | |||
6.4. Stockholders Meeting |
48 | |||
6.5. Filings; Other Actions; Notification |
49 | |||
6.6. Access and Reports |
52 | |||
6.7. Stock Exchange De-listing |
53 | |||
6.8. Publicity |
53 | |||
6.9. Employee Benefits |
53 | |||
6.10. Expenses |
54 | |||
6.11. Indemnification; Directors’ and Officers’ Insurance |
55 | |||
6.12. Takeover Statutes |
56 | |||
6.13. Parent Vote |
56 | |||
6.14. Financing |
56 | |||
6.15. Rule 16b-3 |
60 | |||
6.16. Parent and Merger Sub Expenditure |
60 | |||
6.17. Debt Tender Offer |
60 | |||
6.18. Stockholder Litigation |
62 | |||
6.19. Director Resignations |
62 | |||
6.20. Novation |
62 | |||
ARTICLE VII Conditions |
63 | |||
7.1. Conditions to Each Party’s Obligation to Effect the Merger |
63 | |||
7.2. Conditions to Obligations of Parent and Merger Sub |
63 | |||
7.3. Conditions to Obligation of the Company |
64 | |||
7.4. Frustration of Closing Conditions |
65 | |||
ARTICLE VIII Termination |
65 | |||
8.1. Termination by Mutual Consent |
65 | |||
8.2. Termination by Either Parent or the Company |
65 | |||
8.3. Termination by the Company |
66 |
ii
Page | ||||
8.4. Termination by Parent |
67 | |||
8.5. Effect of Termination and Abandonment |
67 | |||
ARTICLE IX Miscellaneous and General |
71 | |||
9.1. Survival |
71 | |||
9.2. Modification or Amendment |
71 | |||
9.3. Waiver of Conditions |
71 | |||
9.4. Counterparts |
71 | |||
9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL; REMEDIES |
71 | |||
9.6. Notices |
75 | |||
9.7. Entire Agreement |
76 | |||
9.8. No Third Party Beneficiaries |
76 | |||
9.9. Obligations of Parent and of the Company |
77 | |||
9.10. Transfer Taxes |
77 | |||
9.11. Definitions |
77 | |||
9.12. Severability |
77 | |||
9.13. Interpretation; Construction |
77 | |||
9.14. Assignment |
78 | |||
Annex A |
iii
AGREEMENT AND PLAN OF MERGER (hereinafter called this “Agreement”), dated as of April
11, 2010, among DynCorp International Inc., a Delaware corporation (the “Company”), Delta
Xxxxxx Holdings, Inc., a Delaware corporation (“Parent”), and Delta Xxxxxx Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”).
RECITALS
WHEREAS, the board of directors of the Company (the “Company Board”) and the
respective boards of directors of Parent and Merger Sub have approved the merger of Merger Sub with
and into the Company (the “Merger”) upon the terms and subject to the conditions set forth
in this Agreement and have approved and declared advisable this Agreement.
WHEREAS, contemporaneously with the execution and delivery of this Agreement, and as a
condition to the willingness of the Company to enter into this Agreement, Cerberus Series Four
Holdings, LLC (the “Guarantor”) is entering into a limited guarantee in favor of the
Company (the “Limited Guarantee”) pursuant to which the Guarantor is guaranteeing certain
obligations of each of Parent and Merger Sub set forth in this Agreement.
WHEREAS, contemporaneously with the execution of this Agreement, and as a condition and
inducement to the Parent and Merger Sub’s willingness to enter into this Agreement, certain
stockholders of the Company have entered into a Voting Agreement with Parent and Merger Sub (the
“Voting Agreement”).
WHEREAS, the Company, Parent and Merger Sub desire to make certain representations,
warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties,
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
The Merger; Closing; Effective Time
1.1. The Merger. Upon the terms and subject to the conditions set forth in this Agreement,
at the Effective Time, Merger Sub shall be merged with and into the Company, in accordance with the
provisions of the Delaware General Corporation Law, as amended (the “DGCL”), and the
separate corporate existence of Merger Sub shall thereupon cease. The Company shall be the
surviving corporation in the Merger (sometimes hereinafter referred to as the “Surviving
Corporation”), and the separate corporate existence of the Company, with all its rights,
privileges, immunities, powers and franchises, shall continue unaffected by the Merger, except as
set forth in Article II. The Merger shall have the effects set forth in this Agreement and in the
applicable provisions of the DGCL.
1.2. Closing. Unless otherwise mutually agreed in writing between the Company and Parent,
the closing for the Merger (the “Closing”) shall take place at the offices of
Xxxxxxx Xxxx & Xxxxx LLP, 919 Third Avenue, New York, New York, at 9:00 a.m. (New York time) on the third
business day (the “Closing Date”) following the day on which the last to be satisfied or
waived of the conditions set forth in Article VII (other than those conditions that by their nature
are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions)
shall be satisfied or waived in accordance with this Agreement; provided, that, if the
conditions set forth in Sections 7.1 and 7.2 have been satisfied but the financing provided for by
the Debt Commitment Letter has not yet been obtained (or, if alternative financing is being used in
accordance with Section 6.14, such alternative financing has not yet been obtained), then Parent,
at its option, may postpone the Closing to one Business Day prior to the Termination Date in order
to obtain the debt financing referenced above in this Section 1.2, subject in all respects, to the
Company’s right to terminate this Agreement prior to the Termination Date in accordance with the
provisions of Section 8.3(c). Notwithstanding the immediately preceding sentence (other than the
proviso therein), if the Marketing Period has not ended at the time of the satisfaction or waiver
of the conditions set forth in Article VII (other than those conditions that by their nature cannot
be satisfied until the Closing, but subject to the fulfillment or waiver of those conditions), then
the Closing shall occur instead on the date following the satisfaction or waiver of such conditions
that is the earliest to occur of (a) any business day before or during the Marketing Period (but in
any event prior to the Termination Date) as may be specified by Parent on no less than three
business days’ prior notice to the Company; (b) the first business day following the final day of
the Marketing Period (but in any event prior to the Termination Date), or (c) such other date, time
or place as may be agreed to in writing by the parties hereto. For purposes of this Agreement, (a)
the term “business day” shall mean any day other than a Saturday or Sunday or a day on
which banks are required or authorized to close in New York, New York, (b) the term “Marketing
Period” shall mean the first period of 30 consecutive days after the date of this Agreement,
beginning on delivery of the Required Information throughout which (i) Parent shall have the
Required Information that the Company is required to provide Parent pursuant to Section 5.2(h) and
(ii) the conditions set forth in Section 7.1 have been satisfied (other than conditions that by
their nature can only be satisfied at Closing, but subject to the fulfillment or waiver of those
conditions) and nothing has occurred and no condition exists that would cause any of the conditions
set forth in Section 7.2 to fail to be satisfied assuming the Closing were to be scheduled for any
time during such 30-day period; provided, that the Marketing Period shall end on any
earlier date that is the date on which the Debt Financing is consummated; provided,
further, that if the Company shall in good faith reasonably believe it has delivered the
Required Information, it may deliver to Parent a written notice to that effect (stating when it
believes it completed such delivery), in which case the Marketing Period shall be deemed to have
commenced on the date of such notice unless Parent in good faith reasonably believes the Company
has not completed delivery of the Required Information and, within three business days after the
delivery of such notice by the Company, delivers a written notice to the Company to that effect
(stating with specificity which Required Information the Company has not delivered);
provided, further, that the days from August 23, 2010 to September 6, 2010 shall
not be included in determining such 30-day period.
1.3. Effective Time. At the Closing, the parties hereto shall cause the Merger to be
consummated by causing a certificate of merger (the “Certificate of Merger”) to be
executed, acknowledged and filed with the Secretary of State of the State of Delaware in accordance
with the relevant provisions of the DGCL, and shall make all other filings, recordings
2
or publications required under the DGCL in connection with the Merger. The Merger shall become effective at
the time when the Certificate of Merger has been duly filed with, and accepted for record by, the
office of the Secretary of State of the State of Delaware in accordance with the DGCL, or at such
later time or date as the parties shall agree and specify in the Certificate of Merger in
accordance with applicable law (the “Effective Time”).
ARTICLE II
Certificate of Incorporation and Bylaws
of the Surviving Corporation
of the Surviving Corporation
2.1. The Certificate of Incorporation. The certificate of incorporation of the Company, as
in effect immediately prior to the Effective Time, shall be amended to be in the form of
Exhibit A hereto, and as so amended shall be the certificate of incorporation of the
Surviving Corporation (the “Charter”), until thereafter amended as provided therein or by
applicable Law (subject to Section 6.11).
2.2. The Bylaws. The by-laws of Merger Sub in effect immediately prior to the Effective
Time shall be the by-laws of the Surviving Corporation (the “Bylaws”), until thereafter
amended as provided therein or by applicable Law (subject to Section 6.11).
ARTICLE III
Directors and Officers of the Surviving Corporation
3.1. Directors. The parties hereto shall take, and cause to be taken, all actions
necessary so that the directors of Merger Sub at the Effective Time shall, from and after the
Effective Time, be the initial directors of the Surviving Corporation, each to hold office until
their respective successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Charter and the Bylaws.
3.2. Officers. The officers of the Company at the Effective Time shall, from and after the
Effective Time, be the initial officers of the Surviving Corporation, each to hold office until
their respective successors shall have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Charter and the Bylaws.
ARTICLE IV
Effect of the Merger on Capital Stock;
Exchange of Certificates
Exchange of Certificates
4.1. Effect on Capital Stock. At the Effective Time, as a result of the Merger and without
any action on the part of the holder of any capital stock of the Company or the sole stockholder of
Merger Sub:
(a) Merger Consideration. Each share (a “Share “ or, collectively, the
“Shares”) of Class A common stock, par value $0.01 per share, of the Company (the
3
“Common Stock”) issued and outstanding immediately prior to the Effective Time other
than (i) Shares owned by Parent, Merger Sub or any other direct or indirect wholly-owned
subsidiary of Parent, and in each case not held on behalf of third parties, (ii) Dissenting
Shares (as defined below), and (iii) Shares owned by the Company or any direct or indirect
wholly-owned Subsidiary of the Company (each Share referred to in clause (i) through (iii) above
being an “Excluded Share” and collectively, “Excluded Shares”) shall be converted
into the right to receive $17.55 in cash (the “Per Share Merger Consideration”),
without interest. At the Effective Time, all of the Shares shall cease to be outstanding, shall
be cancelled and shall cease to exist, and each certificate (a “Certificate”) formerly
representing any Shares (other than Excluded Shares) shall thereafter represent only the right to
receive the Per Share Merger Consideration multiplied by the number of such Shares formerly
represented thereby, without interest.
(b) Cancellation of Excluded Shares. Each Excluded Share referred to in Section
4.1(a)(i), 4.1(a)(ii) or 4.1(a)(iii), by virtue of the Merger and without any action on the part
of the holder thereof, shall cease to be outstanding, shall be cancelled without payment of any
consideration therefor and shall cease to exist, subject to the right of the Record Holder of any
Dissenting Shares to receive the payment to which reference is made in Section 4.2(f) with
respect to such Dissenting Shares. As used in this Article IV, the term “Record Holder”
means, with respect to any Shares, a Person who was, immediately prior to the Effective Time, the
holder of record of such Shares.
(c) Merger Sub. Each share of common stock, par value $0.01 per share, of Merger
Sub issued and outstanding immediately prior to the Effective Time shall be converted into one
share of common stock, par value $0.01 per share, of the Surviving Corporation. Each share of
preferred stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately
prior to the Effective Time shall be converted into one share of preferred stock, par value $0.01
per share, of the Surviving Corporation.
4.2. Payment.
(a) Paying Agent. At the Effective Time, Parent shall deposit, or shall cause to be
deposited, with a paying agent selected by Parent with the Company’s prior approval (such
approval not to be unreasonably withheld, delayed or conditioned) (the “Paying Agent”),
for the benefit of the Record Holders of Shares, a cash amount in immediately available funds
necessary for the Paying Agent to make the aggregate payments under Section 4.1(a) for the Shares
other than the Excluded Shares (such cash being hereinafter referred to as the “Exchange
Fund”). If a Dissenting Stockholder effectively withdraws its demand for, or loses its,
appraisal rights pursuant to Section 262 of the DGCL with respect to any Dissenting Shares,
Parent shall make available or cause to be made available to the Paying Agent additional funds in
an amount equal to the product of (i) the number of Dissenting Shares for which the Dissenting
Stockholder has withdrawn its demand for, or lost its, appraisal rights pursuant to Section 262
of the DGCL and (ii) the Per Share Merger Consideration. The Paying Agent shall invest the
Exchange Fund as directed by Parent; provided that such investments shall be in
obligations of or guaranteed by the United States of America, in commercial paper obligations
rated A-1 or P-1 or better by Xxxxx’x
4
Investors Service, Inc. or Standard & Poor’s, respectively, in certificates of deposit, bank
repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1
billion, or in money market funds having a rating in the highest investment category granted by a
recognized credit rating agency at the time of investment. Any interest and other income
resulting from such investment shall become a part of the Exchange Fund, and any amounts in
excess of the aggregate amounts payable under Section 4.1(a) shall be promptly returned to
Parent. To the extent that there are any losses with respect to any such investments, or the
Exchange Fund diminishes for any reason below the level required for the Paying Agent to make
prompt cash payment under Section 4.1(a), Parent shall, or shall cause the Surviving Corporation
to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange
Fund is at all times maintained at a level sufficient for the Paying Agent to make such aggregate
payments under Section 4.1(a).
(b) Payment Procedures.
(i) Letter of Transmittal. Promptly (and in any event, within five business
days) after the Effective Time, the Surviving Corporation shall cause the Paying Agent to
mail to each Record Holder of Shares a letter of transmittal for use in collecting the
amount to which such Record Holder is entitled as a result of the Merger, such letter of
transmittal to be in such customary form as Parent and the Company may reasonably agree.
(ii) Payment for Shares. Upon delivery of such letter of transmittal by any
Record Holder of Shares (other than Excluded Shares), duly completed and signed in
accordance with its instructions, and surrender of the Certificate (if any) that immediately
prior to the Effective Time represented such Shares (or affidavit of loss in lieu thereof as
provided in Section 4.2(e)), such Record Holder shall be entitled to receive a cash amount
equal to the number of such Shares multiplied by the Per Share Merger Consideration, and, if
applicable, the Certificate so surrendered shall forthwith be cancelled. No interest will
be paid or accrued on any amount payable as provided above. Risk of loss of and title to
any Certificate will pass only upon proper delivery as provided above. In the event of a
transfer of ownership of Shares that is not registered in the transfer records of the
Company, a check for any cash to be delivered upon compliance with the procedures described
above may be issued to the transferee if the applicable letter of transmittal is accompanied
by all documents reasonably required to evidence and effect such transfer and to evidence
that any applicable stock transfer Taxes have been paid or are not applicable. If payment of
the Per Share Merger Consideration is to be made to a Person other than the Person in whose
name the surrendered Certificate is registered, it shall be a condition of payment that (x)
the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper
form for transfer and (y) the Person requesting such payment shall have paid any transfer
and other taxes required by reason of the payment of the Per Share Merger Consideration to a
Person other than the registered holder of such Certificate surrendered and shall have
established to the reasonable satisfaction of the Surviving Corporation that such tax either
has been paid or is not applicable or shall have otherwise established to the reasonable
satisfaction of the Surviving Corporation that such tax either has been paid or is not
applicable.
5
(c) Transfers. From and after the Effective Time, there shall be no transfers on
the stock transfer books of the Company of the Shares that were outstanding immediately prior to
the Effective Time. If, after the Effective Time, any Person presents to the Surviving
Corporation, Parent or Paying Agent any Certificates or any transfer instructions relating to
Shares cancelled in the Merger, such Person shall be given a copy of the letter of transmittal
referred to in Section 4.2(b)(i) and told to comply with the instructions in that letter of
transmittal in order to receive the cash to which such Person is entitled pursuant to this
Article IV.
(d) Termination of Exchange Fund. Any portion of the Exchange Fund (including the
proceeds of any investments thereof) that remains unclaimed by the Record Holders of Shares for
six months after the Effective Time shall be delivered to the Surviving Corporation. Any Record
Holder of Shares (other than Excluded Shares) who has not theretofore complied with this Article
IV shall thereafter look only to the Surviving Corporation (subject to abandoned property,
escheat or similar Laws) for payment of the Per Share Merger Consideration for such Shares upon
compliance with the instructions in the form of letter of transmittal referred to in Section
4.2(b)(i), without any interest thereon. Notwithstanding the foregoing, none of the Surviving
Corporation, Parent, the Paying Agent or any other Person shall be liable to any Record Holder of
Shares for any amount properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar Laws. For the purposes of this Agreement, the term “Person”
shall mean any individual, corporation (including not-for-profit), general or limited
partnership, limited liability company, joint venture, estate, trust, association, organization,
Governmental Entity or other entity of any kind or nature.
(e) Lost, Stolen or Destroyed Certificates. 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 Parent, the posting
by such Person of a bond in customary amount and upon such terms as may be required by Parent as
indemnity against any claim that may be made against it or the Surviving Corporation with respect
to such Certificate, the Paying Agent will issue a check in the amount equal to the number of
Shares formerly represented by such lost, stolen or destroyed Certificate multiplied by the Per
Share Merger Consideration.
(f) Dissenting Shares. Notwithstanding anything in this Agreement to the contrary,
shares of Common Stock that are issued and outstanding immediately prior to the Effective Time
and which are held by a stockholder who did not vote in favor of the Merger (or consent thereto
in writing) and who is entitled to demand and properly demands appraisal of such shares (the
“Dissenting Shares”) pursuant to, and who complies in all respects with, the provisions
of Section 262 of the DGCL (the “Dissenting Stockholders”), shall not be converted into
or be exchangeable for the right to receive the Per Share Merger Consideration, but instead such
holder shall be entitled to receive such consideration as may be determined to be due to such
Dissenting Stockholder pursuant to Section 262 of the DGCL (and at the Effective Time, such
Dissenting Shares shall no longer be outstanding and shall automatically be canceled and shall
cease to exist, and such holder shall cease to have any rights with respect thereto, except the
rights set forth in Section 262 of the DGCL), unless and until such
6
holder shall have failed to perfect or shall have effectively withdrawn or lost its right to
appraisal under the DGCL. If any Dissenting Stockholder shall have failed to perfect or shall
have effectively withdrawn or lost such right, such holder’s shares of Common Stock shall
thereupon be treated as if they had been converted into and become exchangeable for the right to
receive, as of the Effective Time, the Per Share Merger Consideration for each such share of
Common Stock, in accordance with Section 4.1, without interest. The Company shall give Parent
(i) prompt notice and a copy of any written demands for appraisal, attempted withdrawals of such
demands, and any other instruments served pursuant to applicable Law that are received by the
Company relating to Company stockholders’ rights of appraisal and (ii) the opportunity to
participate in all negotiations and proceedings with respect to demands for appraisal by Company
stockholders under the DGCL. The Company shall not, except with the prior written consent of
Parent, voluntarily make any payment with respect to any demands for appraisal, offer to settle
or settle any such demands or approve any withdrawal of any such demands.
(g) Withholding Rights. Each of Parent, the Surviving Corporation and the Paying
Agent shall be entitled to deduct and withhold from the consideration otherwise payable in
respect of Shares cancelled in the Merger such amounts as it reasonably believes it is required
to deduct and withhold with respect to the making of such payment under the Internal Revenue Code
of 1986, as amended (the “Code”), or any other applicable state, local or foreign Tax
Law. To the extent that amounts are so withheld by Parent, the Surviving Corporation or the
Paying Agent, as the case may be, such withheld amounts shall be (i) timely remitted by Parent,
the Surviving Corporation or the Paying Agent, as applicable, to the applicable Governmental
Entity, and (ii) treated for all purposes of this Agreement as having been paid to the Record
Holder of Shares in respect of which such deduction and withholding was made by Parent, the
Surviving Corporation or the Paying Agent, as the case may be.
4.3. Restricted Stock Units. At the Effective Time, each outstanding restricted stock unit
granted under a Stock Plan, (an “RSU”) shall fully vest and be cancelled and shall only
entitle the holder thereof to receive, as soon as reasonably practicable after the Effective Time
(but in any event no later than three business days after the Effective Time), an amount in cash
equal to the product of (x) the total number of Shares subject to such RSU immediately prior to the
Effective Time, and (y) the Per Share Merger Consideration, less applicable Taxes required to be
withheld with respect to such payment. At or prior to the Effective Time, the Company, the Company
Board and the compensation committee of the Company Board (or another committee duly authorized by
the Company Board for such purpose), as applicable, shall adopt any resolutions as may be necessary
to implement the provisions of this Section 4.3. As of the Effective Time, the Company shall take
all actions necessary and appropriate to terminate all Stock Plans and to ensure that all equity
and equity-based awards granted under any Stock Plan shall be cancelled or terminated and that,
except as otherwise agreed by Parent and the holder of any such award, such holder shall have the
right only to receive a cash payment based on the Per Share Merger Consideration and determined and
calculated as provided for in this Section 4.3.
4.4. Adjustments to Prevent Dilution. In the event that the Company changes the number of
Shares issued and outstanding prior to the Effective Time as a result of a
7
reclassification, stock split (including a reverse stock split), stock dividend or
distribution, recapitalization, merger, issuer tender or exchange offer or other similar
transaction, the Per Share Merger Consideration shall be equitably adjusted to reflect such change
and as so adjusted shall, from and after the date of such event, be the Per Share Merger
Consideration.
ARTICLE V
Representations and Warranties
5.1. Representations and Warranties of the Company. Except (i) as disclosed in reasonable
detail in the Company Reports (as defined in Section 5.1(e), but excluding (A) any risk factor
disclosures contained under the heading “Risk Factors,” (B) any disclosure of risks included in any
“forward-looking statements” disclaimer or any other forward-looking statements of risk that do not
contain a reasonable level of detail about the risks of which the statements warn and (C) any
exhibits to such Company Reports) filed with the Securities and Exchange Commission (the
“SEC”) on or after March 30, 2007 and prior to the date of this Agreement (provided that
nothing disclosed in such Company Reports will be treated as a modification or qualification of the
representations and warranties made in Sections 5.1(b)(i)) or (ii) as set forth in the
corresponding sections or subsections of the disclosure letter delivered to Parent by the Company
prior to entering into this Agreement (the “Company Disclosure Schedule”) (it being agreed
that disclosure of any item in any section or subsection of the Company Disclosure Schedule shall
be deemed disclosure with respect to any other section or subsection to which the relevance of such
item is reasonably apparent on its face), the Company hereby represents and warrants to Parent and
Merger Sub that:
(a) Organization, Good Standing and Qualification; Subsidiaries.
(i) Each of the Company and each of its Subsidiaries is a legal entity duly organized,
validly existing and in good standing (with respect to jurisdictions that recognize the
concept of good standing) under the Laws of the jurisdiction of its organization and has all
requisite corporate or similar power and authority to own, lease and operate its properties
and assets and to carry on its business as presently conducted and is qualified to do
business and is in good standing as a foreign corporation or other relevant legal entity
(with respect to jurisdictions that recognize the concept of good standing) in each
jurisdiction where the ownership, leasing or operation of its assets or properties or
conduct of its business requires such qualification, except where any such failure to be so
organized, qualified, in good standing or to have such power or authority, individually or
in the aggregate, is not reasonably likely to have a Company Material Adverse Effect (as
defined below).
(ii) The Company has made available to Parent complete and correct copies of the
Company’s certificate of incorporation and bylaws, each as amended to the date of this
Agreement, and each as so delivered is in full force and effect.
As used in this Agreement, the term (i) “Subsidiary” means, when used with respect to any
Person, any corporation, limited liability company, partnership, association, trust or other entity
of which securities or other ownership interests representing 50% or more of the equity or 50%
8
or more of the ordinary voting power (or, in the case of a partnership, 50% or more of the general
partnership interests) are, as of such date, owned by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person; (ii) “Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled
by, or under common control with, such Person, and for purposes of this definition, the term
“control” (including the correlative terms “controlling”, “controlled by”
and “under common control with”) means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and (iii) “Company Material Adverse
Effect” means any change, event, circumstance, occurrence or effect that, individually or in
the aggregate, would reasonably be expected to have a material adverse effect on the financial
condition, business or results of operations of the Company and its Subsidiaries taken as a whole
or would reasonably be expected to prevent or materially impair or delay the consummation of the
transactions contemplated by this Agreement; provided, however, that none of the
following, and no effect arising out of or resulting from the following, shall constitute or be
taken into account in determining whether a “Company Material Adverse Effect” has occurred or may,
would or could occur:
(i) any changes, events, circumstances, occurrences or effects generally affecting (A)
any industry in which the Company and its Subsidiaries operate or in which the products or
services of the Company and its Subsidiaries are used or distributed or (B) the economy,
credit, financial or securities markets in the United States or elsewhere in the world,
including changes in interest or exchange rates, or
(ii) any changes, events, circumstances, occurrences or effects, arising out of,
resulting from or attributable to (A) changes or prospective changes in Law, in applicable
regulations of any Governmental Entity, in generally accepted accounting principles or in
accounting standards, or any changes or prospective changes in the interpretation or
enforcement of any of the foregoing, or any changes or prospective changes in general legal,
regulatory or political conditions, (B) the negotiation, execution, announcement or
performance of this Agreement or the consummation of the transactions contemplated by the
Agreement, including the impact thereof on relationships, contractual or otherwise, with
customers, suppliers, distributors, partners, employees or regulators, or any litigation
arising from allegations of breach of fiduciary duty or violation of Law relating to this
Agreement or the transactions contemplated by this Agreement, (C) acts of war (whether or
not declared), sabotage or terrorism, military actions or any escalation or worsening of any
such acts of war (whether or not declared), sabotage, terrorism or military actions or other
similar force majeure events, (D) pandemics, earthquakes, hurricanes, tornados or other
natural disasters, (E) any action taken by the Company or its Subsidiaries that is required
by this Agreement or taken at Parent’s written request, or the failure to take any action by
the Company or its Subsidiaries if that action is prohibited by this Agreement, (F) any
change in the Company’s credit ratings or in analysts recommendations with respect to the
Company, (G) any change resulting or arising from the identity of, or any facts or
circumstances relating to, Parent, Merger Sub or their respective Affiliates, (H) any
decline in the market price, or change in trading volume, of any capital stock of the
Company, (I) the failure of any Bid to result in a Government Contract (regardless of
9
whether the Company or any of its Subsidiaries was a party to such Government Contract
at the time such Bid was made), any protest initiated by any third party with respect to any
Bid or Government Contract of the Company, the failure of any protest relating to a Bid or
Government Contract initiated by the Company or the failure to be awarded task orders under
Government Contracts, or (J) any failure to meet any internal or public projections,
budgets, forecasts or estimates of revenue, earnings, cash flow or cash position;
provided, further, however, that (w) changes, events, circumstances,
occurrences or effects set forth in clause (i)(A), (ii)(A), (ii)(C) or (ii)(D) above may be taken
into account in determining whether there has been or is a Company Material Adverse Effect to the
extent such changes, events, circumstances, occurrences or effects have a materially
disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, as compared
to other participants in the industries in which the Company and its Subsidiaries operate, but only
to the extent of such materially disproportionate adverse effect as compared to such other
participants, (x) the exceptions in clauses (ii)(F), (ii)(H) and (ii)(J) above shall not prevent or
otherwise affect a determination that the underlying cause of any decline, change or failure
referred to therein (if not otherwise falling within any of the exceptions provided by clause (i)
or clauses (ii)(A) through (J) above) is a Company Material Adverse Effect, (y) changes, events,
circumstances, occurrences, effects or circumstances set forth in clause (ii)(C) above shall not
include any action or failure to act by the Company, any Subsidiary of the Company or any of their
respective employees or agents and (z) changes, events, circumstances, occurrences or effects
resulting from a loss of a Material Contract other than from any of the exclusions set forth in
clause (ii) above may be taken into account in determining whether there has been or is a Company
Material Adverse Effect.
(b) Capital Structure.
(i) The authorized capital stock of the Company consists of (A) 200,000,000 shares of
Common Stock, (B) 32,000,000 shares of Class B common stock, par value $0.01, (the
“Class B Common Stock”) and (C) 50,000,000 shares of preferred stock, par value
$0.01 per share (the “Preferred Stock”). As of the close of business on April 8,
2010, (A) 56,286,196 shares of Common Stock were issued and outstanding, all of which were
duly authorized, validly issued, fully paid and nonassessable and were issued free of
preemptive rights, (B) no shares of Class B Common Stock were outstanding or reserved for
issuance, (C) no shares of Preferred Stock were outstanding or reserved for issuance, and
(D) 807,568 RSU grants were credited to participants under their accounts under the Stock
Plan. Other than 2,250,000 Shares reserved for issuance under the Stock Plan, the Company
has no Shares reserved for issuance. Section 5.1(b)(i) of the Company Disclosure Schedule
contains a correct and complete list, as of the date of this Agreement, of RSUs issued under
the Stock Plan, including the type of award, holder, date of grant, number of Shares and
vesting and performance conditions. Each of the outstanding shares of capital stock or
other equity securities of each of the Company’s Subsidiaries is duly authorized, validly
issued, fully paid and nonassessable and, except for directors’ qualifying shares (or a
nominal amount of shares held pursuant to similar requirements in various jurisdictions),
owned by the Company or by a direct or indirect
10
wholly-owned Subsidiary of the Company, free and clear of any lien, charge, pledge,
security interest, claim, option to purchase or otherwise acquire any interest or other
encumbrance except for such transfer restrictions of general applicability as may be
provided under the Securities Act of 1933, as amended (the “Securities Act”), and
other applicable securities Laws (each, a “Lien”). Except as set forth above, there
are no preemptive or other outstanding rights, options, warrants, conversion rights, stock
appreciation rights, restricted stock units, redemption rights, repurchase rights,
agreements, arrangements, calls, commitments or rights of any kind that obligate the Company
or any of its Subsidiaries to issue or sell or make payments based on the value of any
shares of capital stock or other equity securities of the Company or any of its Subsidiaries
or any securities or obligations convertible or exchangeable into or exercisable for, or
giving any Person a right to subscribe for or acquire, any equity securities of the Company
or any of its Subsidiaries, and no securities or obligations evidencing such rights are
authorized, issued or outstanding. Upon any issuance of any Shares in accordance with the
terms of the Stock Plan, such Shares will be duly authorized, validly issued, fully paid and
nonassessable and free and clear of any Liens. The Company does not have outstanding any
bonds, debentures, notes or other obligations the holders of which have the right to vote
(or convertible into or exercisable for securities having the right to vote) with the
stockholders of the Company on any matter. Since April 8, 2010, the Company has not (1)
issued any capital stock or other securities (including any securities convertible into or
exchangeable for capital stock), other than or pursuant to RSUs referred to above that were
outstanding as of April 8, 2010 that were issued pursuant to the Company’s 2007 Omnibus
Incentive Plan (the “Stock Plan”), or (2) established a record date for, declared,
set aside for payment or paid, any dividend on, or made any other distribution in respect
of, any shares of its capital stock.
(ii) Section 5.1(b)(ii) of the Company Disclosure Schedule sets forth (x) a list of all
Subsidiaries of the Company that are not, directly or indirectly, wholly-owned, beneficially
and of record, by the Company (except for directors’ qualifying shares or a nominal amount
of shares held pursuant to similar requirements in various jurisdictions), and the ownership
percentage of each such Subsidiary owned by the Company and/or any of its Subsidiaries and
(y) the Company’s or its Subsidiaries’ capital stock, equity interest or other direct or
indirect ownership interest in any other Person other than securities in a publicly traded
company held for investment by the Company or any of its Subsidiaries and consisting of less
than 1% of the outstanding capital stock of such company.
(c) Corporate Authority and Approval.
(i) The Company has all requisite corporate power and authority and has taken all
corporate action necessary in order to execute, deliver and perform its obligations under
this Agreement and, subject only to adoption of this Agreement by the holders of a majority
of the outstanding shares of Common Stock entitled to vote on such matter at a stockholders’
meeting duly called and held for such purpose (the “Requisite Company Vote”) to
consummate the Merger and the other transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Company and,
11
assuming the authorization, execution and delivery hereof by Parent and Merger Sub
constitutes a valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar Laws of general applicability relating to or
affecting creditors’ rights and to general equity principles (the “Bankruptcy and Equity
Exception”).
(ii) The Company Board has determined that the Merger is fair to, and in the best
interests of, the Company and its stockholders and declared advisable this Agreement and the
Merger and the other transactions contemplated hereby and the Company Board has approved
this Agreement and the Merger and the other transactions contemplated hereby and has
resolved, subject to Section 6.2, to recommend adoption of this Agreement to the holders of
Common Stock (such recommendation, the “Company Recommendation”). The Company Board
has directed that this Agreement be submitted to the holders of Common Stock for their
adoption. The only vote of the stockholders of the Company required to adopt this Agreement
and approve the transactions contemplated hereby is the Requisite Company Vote.
(d) No Conflict; Required Filings and Consents.
(i) The execution, delivery and performance of this Agreement by the Company does not
and will not: (A) conflict with or violate the certificate of incorporation or bylaws of the
Company; (B) conflict with or violate the certificate of incorporation, bylaws or comparable
governing documents of any Subsidiary of the Company; or (C) assuming that the Requisite
Company Vote is obtained and all consents, approvals, authorizations, declarations and
permits contemplated by clauses (A) through (E) of subsection (ii) below have been obtained,
and all filings described in such clauses have been made, conflict with, result in any
breach or violation of, or constitute a default (or an event which with or without notice,
lapse of time or both would become a default) or result in the loss of a benefit under, or
give rise to any breach or violation of, a termination or right of termination, acceleration
or other alteration in the rights under, any note, bond, mortgage, indenture, contract,
agreement, lease, license or other instrument or obligation, including, without limitation,
any Government Contract (each a “Contract”), to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or any of
their respective properties are bound or any Law to which the Company or any of its
Subsidiaries is subject, except, in the case of clause (C) above, for any such conflict,
violation, breach, termination, default, acceleration, loss, alteration or other occurrence
that would not, individually or in the aggregate, reasonably be likely to have a Company
Material Adverse Effect or prevent, materially delay or materially impede the consummation
of the transactions contemplated by this Agreement.
(ii) The execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby by the Company do not and will not
require any consent, approval, authorization, declaration or permit of, action by, filing
with or notification to, any domestic, foreign or supranational
12
governmental or regulatory authority, agency, commission, body, court or other
legislative, executive or judicial governmental entity (each, a “Governmental
Entity”), except for: (A) the applicable requirements of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and the rules and regulations promulgated
thereunder; (B) the applicable requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended (the “HSR Act”), and the rules and regulations promulgated
thereunder; (C) the applicable requirements of the New York Stock Exchange (the
“NYSE”); (D) the filing with the Secretary of State of the State of Delaware of the
Certificate of Merger as required by the DGCL; and (E) any consent, approval, authorization,
declaration, permit, action, filing or notification not referred to above, the failure of
which to make or obtain, would not, individually or in the aggregate, reasonably be likely
to have a Company Material Adverse Effect or prevent, materially delay or materially impede
the consummation of the transactions contemplated by this Agreement.
(e) Company Reports; Financial Statements.
(i) The Company has filed or furnished, as applicable, on a timely basis, all forms,
statements, certifications, reports and documents required to be filed or furnished by it
with the SEC pursuant to the Exchange Act or the Securities Act from March 30, 2007 (the
“Applicable Date”) (the forms, statements, certifications, reports and documents
filed or furnished since the Applicable Date and those filed or furnished on or subsequent
to the date of this Agreement, including any amendments thereto, the “Company
Reports”). Each of the Company Reports, at the time of its filing or being furnished
complied or, if not yet filed or furnished, will comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act
of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated
thereunder applicable to the Company Reports, including any applicable accounting
requirements. As of their respective dates (or, if amended prior to the date of this
Agreement, as of the date of such amendment), the Company Reports did not, and any Company
Reports filed with or furnished to the SEC on or subsequent to the date of this Agreement
will not, contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein, in light of
the circumstances in which they were made, not misleading. As of the date of this
Agreement, none of the Company’s Subsidiaries is subject to the reporting requirements of
Section 13(a) or 15(d) under the Exchange Act, except for DynCorp International LLC.
(ii) Since the Applicable Date, subject to any applicable grace periods, the Company
has been and is in compliance in all material respects with (A) the applicable provisions of
the Xxxxxxxx-Xxxxx Act and (B) the applicable listing and corporate governance rules and
regulations of the NYSE.
(iii) (A) The Company has established and maintains disclosure controls and procedures
and internal control over financial reporting (as such terms are defined in paragraphs (e)
and (f), respectively, of Rule 13a-15 under the Exchange Act) as required
13
by Rule 13a-15 or 15d-15 under the Exchange Act and (B) the Company’s management has
disclosed, based on the most recent evaluation of its chief executive officer and its chief
financial officer prior to the date of this Agreement, to the Company’s auditors and the
audit committee of the Company Board, (1) any significant deficiencies and material
weaknesses in the design or operation of its internal controls over financial reporting (as
defined in Rule 13a 15(f) under the Exchange Act) that are reasonably likely to adversely
affect the Company’s ability to record, process, summarize and report financial information
and (2) any fraud, to the Knowledge (as defined below) of the Company, whether or not
material, that involves management or other employees who have a significant role in the
Company’s internal control over financial reporting.
(iv) Each of the condensed consolidated statements of financial position included in or
incorporated by reference into the Company Reports (including the related notes and
schedules) fairly presents, or, in the case of Company Reports filed on or after the date of
this Agreement, will fairly present, in each case, in all material respects, the condensed
consolidated financial position of the Company and its Subsidiaries as of its date and each
of the condensed consolidated statements of income and condensed consolidated statements of
cash flows included in or incorporated by reference into the Company Reports (including any
related notes and schedules) fairly presents, or in the case of Company Reports filed on or
after the date of this Agreement, will fairly present, in each case, in all material
respects, the net income and cash flows, as the case may be, of the Company and its
Subsidiaries for the periods set forth therein (subject, in the case of unaudited
statements, to notes and normal year-end audit adjustments that will not be material in
amount or effect), in each case in accordance with U.S. generally accepted accounting
principles (“GAAP”) consistently applied during the periods involved, except as may
be noted therein.
(f) Absence of Certain Changes.
(i) Since April 3, 2009, the Company and its Subsidiaries have conducted their
respective businesses in all material respects only, and have not engaged in any material
transaction other than, in accordance with the ordinary course of these businesses
consistent with past practice, except in connection with this Agreement and the transactions
contemplated herein.
(ii) Since April 3, 2009, there has not occurred any Company Material Adverse Effect or
any changes, events, circumstances, occurrences, effects or developments that would
reasonably be likely to have, individually or in the aggregate, a Company Material Adverse
Effect.
(g) Litigation; Liabilities.
(i) There are no civil, criminal or administrative actions, suits, claims, hearings,
arbitrations, formal or informal investigations (including any charges, notices or inquiries
made or given by any Governmental Entity, whether by subpoena, request for information or
otherwise) or any other proceedings pending or, to the Knowledge of the Company and its
Subsidiaries, threatened against the Company or any of its Subsidiaries,
14
in each case that would, individually or in the aggregate, reasonably be likely to have
a Company Material Adverse Effect or prevent or materially delay or impair the consummation
of the transactions contemplated by this Agreement. None of the Company or any of its
Subsidiaries is a party to or subject to the provisions of any judgment, ruling, order,
writ, injunction, decree, award, stipulation or other requirement of any kind specifically
imposed upon, or outstanding against, the Company or any of its Subsidiaries that,
individually or in the aggregate, would reasonably be likely to have a Company Material
Adverse Effect or prevent, materially delay or materially impede the consummation of the
transactions contemplated by this Agreement.
(ii) As of the date of this Agreement, to the actual knowledge of the persons listed in
Section 5.1(g)(v) of the Company Disclosure Schedule, no director or officer of the Company
or any of its Subsidiaries is a defendant in any material suit, action, or proceeding to
which the Company or any of its Subsidiaries is not also a defendant, including as a nominal
defendant, in connection with his or her status as a director or officer of the Company or
any of its Subsidiaries.
(iii) As of the date of this Agreement, to the actual knowledge of the persons listed
in Section 5.1(g)(v) of the Company Disclosure Schedule, no current or former employee,
representative, consultant, independent contractor, subcontractor, leased employee,
volunteer, or “temp” of the Company or any of its Subsidiaries, in connection with his or
her affiliation with, or the performance of his or her duties to, the Company or any of its
Subsidiaries, is a defendant, target, subject or person of interest in (i) any suit, action,
formal or informal investigation (including any charge, complaint, notice or inquiry made or
given by any governmental agency, whether by subpoena, request for information or otherwise)
or (ii) any other proceeding to which the Company or any of its Subsidiaries is not also a
defendant, including as a nominal defendant, which would, in the case of clauses (i) and
(ii), individually or in the aggregate, reasonably be likely to have a Company Material
Adverse Effect or prevent or materially delay or impair the consummation of the transactions
contemplated by this Agreement.
(iv) Neither the Company nor any of its Subsidiaries or, to the Knowledge of the
Company, any third-parties (including subcontractors) to which the Company or any of its
Subsidiaries has agreed to provide an applicable indemnity, has any liabilities or
obligations of any nature (whether accrued, absolute, contingent, determined, determinable
or otherwise) which would be required to be reflected or reserved against on a condensed
consolidated statement of financial position of the Company prepared in accordance with GAAP
or the notes thereto, other than liabilities and obligations (A) set forth or reflected or
reserved against in the Company’s condensed consolidated statements of financial position as
of January 1, 2010, including the notes thereto, included in the Company Reports, (B)
incurred in the ordinary course of business consistent with past practices since January 1,
2010, none of which individually (in the case of this clause (B)) is material to the
business, results of operations or financial condition of the Company and its Subsidiaries,
taken as a whole, (C) incurred in connection with the Merger or any other transaction or
agreement contemplated by this Agreement, or (D) that would not, individually or in the
aggregate, reasonably be likely
15
to have a Company Material Adverse Effect. There are no off-balance sheet arrangements
of any type (including any off-balance sheet arrangement required to be disclosed pursuant
to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act) that have not been
so described in the Company Reports nor any obligations to enter into any such arrangements.
(v) The term “Knowledge”, when used in this Agreement with respect to the
Company, shall mean the actual knowledge, after reasonable inquiry, of those persons set
forth in Section 5.1(g)(v) of the Company Disclosure Schedule.
(h) Employee Benefits.
(i) All benefit and compensation plans, contracts, policies, programs, practices,
arrangements or agreements covering current or former employees of the Company Group (the
“Employees”) and current or former directors, independent contractors, consultants
or leased employees of the Company Group (collectively with Employees, the “Service
Providers”) and under or with respect to which the Company Group has any liability
including, but not limited to, “employee benefit plans” within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and
pension, profit-sharing, savings, termination, executive compensation, phantom stock,
change-in-control, retention, salary continuation, vacation, sick leave, disability, death
benefit, insurance, hospitalization, medical, dental, life (including all individual life
insurance policies as to which the Company Group is the owner, the beneficiary, or both),
Code Section 125 “cafeteria” or “flex” benefit, employee loan, educational assistance,
fringe benefit, deferred compensation, retirement or post-retirement, severance, stock
option, stock purchase, stock appreciation rights, stock based, incentive and bonus, and
employment, consulting or other individual agreements, plans, practices, policies,
contracts, programs, and arrangements (collectively, the “Benefit Plans”), other
than Benefit Plans that are mandatory under applicable Law or Benefit Plans that are
maintained outside of the United States primarily for the benefit of Employees working
outside of the United States and, in each case, that are not subject to ERISA (such plans
hereinafter being referred to collectively as “Non-U.S. Benefit Plans”), are listed
in Section 5.1(h)(i) of the Company Disclosure Schedule. True and complete copies of (i)
all Benefit Plans required to be listed in Section 5.1(h)(i) of the Company Disclosure
Schedule, and (ii) in respect of such Benefit Plans, any amendments, trust agreements or
other funding instruments, material contracts currently in effect (including all
administrative agreements, group insurance contracts and group annuity contracts), the most
recent IRS determination letter, the summary plan description, the three most recent Forms
5500, the three most recent audited financial statements and for the last year all
correspondence with the IRS, the Department of Labor and any other Governmental Entity which
relate to any investigations or claims that could result in a material liability with
respect to any Benefit Plan have been made available to Parent. “Company Group”
means the Company, any Subsidiary of the Company, and any ERISA Affiliate thereof.
16
(ii) Each Benefit Plan, other than Non-U.S. Benefit Plans, (collectively, “U.S.
Benefit Plans”) is in compliance with its terms and with ERISA, the Code and other
applicable Laws, except, individually or in the aggregate, as would not reasonably be likely
to have a Company Material Adverse Effect. Each U.S. Benefit Plan intended to be qualified
under Section 401(a) of the Code, has received a currently-effective favorable determination
letter from the Internal Revenue Service (the “IRS”) or has applied to the IRS for
such favorable determination letter under Section 401(b) of the Code within the applicable
remedial amendment period, and the Company is not aware of any circumstances likely to
result in the loss of the qualification of such U.S. Benefit Plan under Section 401(a) of
the Code.
(iii) Except as set forth in Section 5.1(h)(iii) of the Company Disclosure Schedules,
no U.S. Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and neither
the Company Group, nor any entity which is considered a single employer with any member of
the Company Group under Section 4001 of ERISA and Section 414 of the Code (“ERISA
Affiliates”) has at any time sponsored or contributed to, or has or had any liability or
obligation in respect of, any such plan. Except as set forth in Section 5.1(h)(iii) of the
Company Disclosure Schedule, none of the Company Group is obligated to contribute to or
could reasonably be expected to have any liability in respect of any “multiemployer plan”
within the meaning of Section 4001(a)(3) of ERISA (a “Multiemployer Plan”), and none
of the Company Group has withdrawn from a Multiemployer Plan in a “complete withdrawal” or a
“partial withdrawal” as defined in Sections 4203 and 4205 of ERISA, respectively, so as to
result in a liability, contingent or otherwise (including without limitation the obligations
pursuant to an agreement entered into in accordance with Section 4204 of ERISA), of the
Company Group, that has not been satisfied. To the Knowledge of the Company, with respect
to each Benefit Plan that is a Multiemployer Plan: (i) no such Multiemployer Plan has been
terminated or has been in reorganization under ERISA so as to result, directly or
indirectly, in any liability, contingent or otherwise, of the Company Group under Title IV
of ERISA; (ii) no proceeding has been initiated by any person (including the Pension Benefit
Guaranty Corporation) to terminate any such Multiemployer Plan; (iii) the Company Group has
not received written notice that any such Multiemployer Plan will be terminated or
reorganized under ERISA; (iv) the Company Group does not expect to withdraw from any such
Multiemployer Plan; and (v) no such Multiemployer Plan is in endangered or critical status,
within the meaning of Section 305 of ERISA.
(iv) As of the date hereof, there is no pending or, to the Knowledge of the Company
threatened, lawsuits, grievances, arbitration, actions, claims, charges, investigations,
hearings or other proceedings (including without limitation any administrative hearings,
investigations, charges, claims, actions or proceedings), relating to any Benefit Plan,
other than routine claims for benefits that, individually or in the aggregate, would
reasonably be likely to result in a Company Material Adverse Effect. Except as set forth in
Section 5.1(h)(iv) of the Company Disclosure Schedule, none of the Company Group has any
obligations to provide welfare benefits (including, without limitation, death or medical
benefits) with respect to any former or current Service Provider or any spouse thereof
beyond the termination of such Service Provider’s service
17
with the Company Group, and none of the Company Group maintains, contributes to or
sponsors any voluntary employees’ beneficiary association within the meaning of Section
501(c)(9) of the Code.
(v) Except as set forth in Section 5.1(h)(v)(i) of the Company Disclosure Schedule,
neither the execution of this Agreement, the approval of the Merger by the stockholders of
the Company nor the consummation of the transactions contemplated hereby (whether alone or
in connection with any subsequent event(s)) will (A) result in any payment becoming due, or
increase the amount of compensation due to any Service Provider, (B) increase any benefits
otherwise payable under any Benefit Plan, (C) result in the acceleration of the time of
payment or vesting of any compensation or benefits, (D) result in a non-exempt “prohibited
transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code, or (E)
result in the payment of any amount, that could , individually or in combination with any
other payment, constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of
the Code. Except as set forth in Section 5.1(h)(v)(ii) of the Company Disclosure Schedule,
no Service Provider has or will obtain a right to receive a gross-up payment from the
Company Group with respect to any taxes that may be imposed upon such Service Provider
pursuant to Section 409A of the Code or Section 4999 of the Code.
(vi) All Non-U.S. Benefit Plans are listed in Section 5.1(h)(vi) of the Company
Disclosure Schedule. With respect to each Non-U.S. Benefit Plan, except, individually or in
the aggregate, as would not be reasonably likely to have a Company Material Adverse Effect:
(i) each Non-U.S. Benefit Plan is in compliance with the applicable provisions of Law and
regulations regarding employee benefits, mandatory contributions and retirement plans of
each jurisdiction in which each such Non-U.S. Benefit Plan is maintained, to the extent
those Laws are applicable to such Non-U.S. Benefit Plan; (ii) each Non-U.S. Benefit Plan has
been administered at all times and in accordance with its terms; and (iii) all liabilities
with respect to each Non-U.S. Benefit Plan have been funded in accordance with the terms of
such Non-U.S. Benefit Plan, and applicable Law, and to the extent that liabilities in
respect of any such Non-U.S. Benefit Plans exceed assets in respect of such plan, such
shortfall amount has been reflected in Section 5.1(h)(vi) of the Company Disclosure
Schedule.
(vii) Except as would not individually or in the aggregate reasonably be expected to
have a Company Material Adverse Effect, each Benefit Plan that is a “nonqualified deferred
compensation plan” within the meaning of Section 409A(d)(1) of the Code and published
guidance thereunder (a “Nonqualified Deferred Compensation Plan”) and any benefit
thereunder, in each case that is subject to Section 409A of the Code, (i) has been operated
in compliance with Section 409A of the Code since its inception, based upon a good faith,
reasonable interpretation of (A) Section 409A of the Code and (B)(I) the final regulations
issued thereunder or (II) applicable Internal Revenue Service Notices (clauses (I) and (II),
together, the “409A Authorities”), and (ii) has complied with the 409A Authorities
as of the effective date thereof.
18
(viii) As of the date hereof, no current employee of the Company or any of its
Subsidiaries at the senior vice president-level or above has given written notice to the
Company or any of its Subsidiaries that any such employee intends to terminate his or her
employment with the Company or any of its Subsidiaries.
(i) Labor.
(i) The Company has provided Parent copies of all collective bargaining agreements,
works council agreements, labor union contracts, trade union agreements, and other
agreements (each a “Collective Bargaining Agreement”) with any union, works council,
or labor organization (each a “Union” and collectively “Unions”) to which the
Company or any of its Subsidiaries is a party or by which it is bound. Except as would not
reasonably be expected to have a Company Material Adverse Effect, individually or in the
aggregate: (A) to the Knowledge of the Company, in the past three years, no Union or group
of employees of the Company or any of its Subsidiaries has sought to organize any employees
for purposes of collective bargaining, made a demand for recognition or certification,
sought to bargain collectively with the Company or any of its Subsidiaries, or filed a
petition for recognition with any Governmental Entity (except with respect to any Collective
Bargaining Agreement previously provided to Parent); (B) as of this date, no Collective
Bargaining Agreement is being negotiated by the Company or, to the Knowledge of the Company,
any of its Subsidiaries; (C) in the past three years there have been no actual or, to the
Knowledge of the Company, threatened strikes, lockouts, slowdowns, work stoppages, boycotts,
handbilling, picketing, walkouts, demonstrations, leafleting, sit-ins, sick-outs, or other
forms of organized labor disruption with respect to the Company or any of its Subsidiaries;
and (D) each of the employees of the Company and its Subsidiaries has all work permits,
immigration permits, visas, or other authorizations required by Law for such employee given
the duties and nature of such employee’s employment.
(ii) Except as would not reasonably be expected to have a Company Material Adverse
Effect, individually or in the aggregate: (i) within the past six (6) years, each person or
entity classified by the Company or any of its Subsidiaries as an “independent contractor,”
consultant, volunteer, subcontractor, “temp,” leased employee, or other contingent worker is
properly classified under all governing Laws, and the Company and its Subsidiaries have
fully and accurately reported all payments to all independent contractors and other
contingent workers on IRS Form 1099s or as otherwise required by applicable Laws; (ii)
within the past six (6) years, each employee classified as “exempt” from overtime under the
Fair Labor Standards Act (“FLSA”) and any state laws governing wages, hours, and
overtime pay has been properly classified as such, and the Company and its Subsidiaries have
not incurred any liabilities under the FLSA or any state wage and hour laws; (iii) within
the past six (6) years, each employee not subject to FLSA has been properly categorized
according to applicable Law, and has been paid overtime wages consistent with applicable
law; (iv) within the past three (3) years, neither the Company nor any of its Subsidiaries
has failed to provide advance notice of layoffs or terminations as required by the Worker
Adjustment and Retraining Notification Act or any state or local Laws, or any applicable Law
for employees outside the United
19
States, regarding the termination or layoff of employees or has incurred any liability
or obligation which remains unsatisfied under such Laws; (v) the Company and each of its
Subsidiaries are in compliance with all applicable Laws relating to labor and employment,
including but not limited to all Laws relating to employment practices; the hiring,
promotion, assignment, and termination of employees; discrimination; equal employment
opportunities; disability; labor relations; wages and hours; hours of work; payment of
wages; immigration; workers’ compensation; employee benefits; working conditions;
occupational safety and health; family and medical leave; or employee terminations; data
privacy and data protection; (vi) there are no pending or, to the Company’s Knowledge,
threatened, lawsuits, grievances, unfair labor practice charges, arbitrations, charges,
investigations, hearings, actions, claims, or proceedings (including without limitation any
administrative investigations, charges, claims, actions, or proceedings), against the
Company or any of its Subsidiaries brought by or on behalf of any applicant for employment,
any current or former employee, representative, agents, consultant, independent contractor,
subcontractor, or leased employee, volunteer, or “temp” of the Company or any of its
Subsidiaries, or any group or class of the foregoing, or any Governmental Entity, in each
case in connection with his or her affiliation with, or the performance of his or her duties
to, the Company or its Subsidiaries, any person alleging to be a current or former employee,
any group or class of the foregoing, or any Governmental Entity, or alleging violation of
any labor or employment Laws, breach of any Collective Bargaining Agreement, breach of any
express or implied contract of employment, wrongful termination of employment, or any other
discriminatory, wrongful, or tortious conduct in connection with the employment
relationship; and (vii) and no individual has been improperly excluded from, or wrongly
denied benefits under, any Benefit Plan.
(j) Compliance.
(i) The businesses of each of the Company and its Subsidiaries have not been since the
Applicable Date, and are not being, conducted in violation of any federal, state, local,
foreign or supranational law, statute or ordinance, common law, or any rule, regulation,
judgment, order, writ, injunction, decree, arbitration award, agency requirement, license or
permit of any Governmental Entity (including the Xxxxxxxx-Xxxxx Act, and the Foreign Corrupt
Practices Act of 1977, as amended, and any rules or regulations promulgated thereunder
(“FCPA”) and, where applicable, any anti-bribery / corruption legislation enacted by
a Governmental Entity (“Anti-Bribery Act”), collectively, “Laws”), except
for violations that, individually or in the aggregate, are not reasonably likely to have a
Company Material Adverse Effect. The Company and its Subsidiaries each has obtained and is
in compliance with all permits, licenses, certifications, approvals, registrations,
consents, authorizations, franchises, variances, exemptions and orders issued or granted by
a Governmental Entity (“Licenses”) necessary to conduct its business as presently
conducted, except those the absence of which would not, individually or in the aggregate,
reasonably be likely to have a Company Material Adverse Effect.
20
(ii) Except for such matters that, individually or in the aggregate, are not reasonably
likely to have a Company Material Adverse Effect, (A) none of the Company, its Subsidiaries
or any of their respective current or former employees, representatives, agents,
consultants, independent contractors, subcontractors, leased employees, volunteers, or
“temps” have (1) used any corporate, Company (and/or Subsidiary) funds for any unlawful
contributions, gifts, entertainment or other unlawful expenses relating to political
activity; (2) made any direct or indirect unlawful payments from corporate funds to any
foreign or domestic government employee or official for the purpose of influencing any act
or decision of such individual or of any Governmental Entity or department, agency or
instrumentality thereof; or (3) violated any provision of the FCPA or any Anti-Bribery Acts,
in each case, in connection with his or her affiliation with, or the performance of his or
her duties to, the Company or its Subsidiaries; (B) the Company and its Subsidiaries make
and keep books, records, and accounts that accurately and fairly reflect transactions and
the distribution of the Company’s and the Subsidiaries’ assets, and to devise and maintain a
system of internal accounting controls sufficient to provide reasonable assurances that
transactions are taken in accordance with management’s directives and are properly recorded,
in each case, in accordance with the FCPA; and (C) the Company and its Subsidiaries have
effective disclosure controls and procedures and an internal accounting controls system that
is sufficient to provide reasonable assurances that violations of the FCPA and / or any
Anti-Bribery Acts with respect to which the Company or any of its Subsidiaries would be
liable will be prevented, detected and deterred.
(iii) Except for such matters, that, individually or in the aggregate, are not
reasonably likely to have a Company Material Adverse Effect, none of the Company, its
Subsidiaries or any of their current or former employees, representatives, agents,
consultants, independent contractors, subcontractors, leased employees, volunteers, or
“temps” in connection with his or her affiliation with, or the performance of his or her
duties to, the Company or any of its Subsidiaries: (A) have within the past five years
engaged in any activity or transaction prohibited by or in violation of any U.S. Export
Control or Import Law; (B) have been the recipient of a subpoena, warning letter, finding of
violation letter, charging letter, draft charging letter, or other document alleging a
violation, or possible violation, of any U.S. Export Control or Import Law from any U.S.
Trade Control Agency in the past five years; (C) in the past five years have been (x)
subject of an indictment for a violation or violations of any U.S. Export Control or Import
Law; (y) convicted of violating any U.S. Export Control or Import Law or (z) barred or
suspended, even temporarily, from doing business with any agency of the U.S. Government as a
result of a violation of any U.S. Export Control or Import Law; (D) (x) is an Embargoed
Person; (y) is owned or controlled by, or is acting on behalf of, an Embargoed Person or (z)
has within the last five years engaged in activities, dealings or transactions with or
involving an Embargoed Person; (E) has within the last five years entered into a settlement,
plea agreement, or deferred prosecution agreement with any U.S. Trade Control Agency for
alleged violations of any U.S. Export Control or Import Law; or (F) has been officially
reprimanded or terminated in the last five years in whole or in part due to their violation
of Company policies and procedures related to U.S. Export Control or Import Laws.
21
(iv) Except for such matters, that, individually or in the aggregate, are not
reasonably likely to have a Company Material Adverse Effect: (A) there is no pending or, to
the Knowledge of the Company, threatened U.S. Trade Control Agency proceeding,
investigation, audit or enforcement action against the Company, its Subsidiaries or any of
their respective current or former employees, representatives, agents, consultants,
independent contractors, subcontractors, leased employees, volunteers, or “temps” in
connection with his or her affiliation with, or the performance of his or her duties to, the
Company or any of its Subsidiaries; (B) neither the Company nor its Subsidiaries have any
pending or anticipated disclosures to any U.S. Trade Control Agency for potential violations
of any U.S. Export Control or Import Law; (C) all voluntary self disclosures that have been
submitted to a U.S. Trade Control Agency in the past five years involving potential
violations of U.S. Export Control or Import Laws have been disclosed to the Parent and
Merger Sub; and (D) there have been no potential violations of U.S. Export Control or Import
Laws that have been discovered by the Company, but not reported to a U.S. Trade Control
Agency in the past five years.
As used in this Agreement the terms:
“Embargoed Person” means any person, country or entity subject to trade restrictions
under United States law, including, without limitation, the International Emergency Economic
Powers Act, 50 U.S.C. §§ 1701, et seq., the Trading with the Enemy Act, 50
U.S.C. §§ App.1, et seq., the Export Administration Act, 50 U.S.C. app. §§ 2401-2420, the
Arms Export Control Act, 22 U.S.C. §§ 2751-2794, or any statutes, regulations or Executive
Orders implemented by the U.S. Treasury Department’s Office of Foreign Assets Control
(“OFAC”), the U.S. Commerce Department’s Bureau of Industry and Security
(“BIS”) or the U.S. State Department’s Directorate of Defense Trade Controls
(“DDTC”).
“U.S. Export Control Laws” means the Export Administration Regulations (15 C.F.R.
Parts 730-744); U.S. Foreign Trade Regulations (15 C.F.R. Part 30); the International
Traffic in Arms Regulations (22 C.F.R. Parts 120-130); the U.S. Treasury Department, Office
of Foreign Assets Control regulations (30 C.F.R. Parts 500-599; and the Antiboycott laws (15
C.F.R. Part 760 and Section 999 of the U.S. Internal Revenue Code)).
“U.S. Import Laws” means laws and regulations administered by Customs under Title 19
of the U.S. Code and Title 19 of the Code of Federal Regulations and the U.S. Department of
Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE”) regulations (
27 C.F.R. Part 447).
“U.S. Trade Control Agencies” includes, but is not limited to, BATFE, BIS, CBP,
DDTC, DOJ, IRS, OFAC, OAC, U.S. Census Bureau, Foreign Trade Division, and U.S. Immigration
and Customs Enforcement.
(k) Rights Agreement; Takeover Statutes.
22
(i) The Company does not have any outstanding rights under the Rights Agreement between
the Company and The Bank of New York dated May 3, 2006, as amended (the “Rights
Plan”), or any similar rights or “poison pills” other than any such rights or “poison
pills” that provide for expiration of such rights (without payment of any consideration by
the Company, any Company Subsidiary, Parent or Merger Sub) immediately prior to the
Effective Time. The Company has amended the Rights Plan in accordance with its terms such
that the provisions thereof and any rights granted thereunder are inapplicable to the Merger
and the other transactions contemplated hereby including, without limitation, the Voting
Agreement.
(ii) No “fair price”, “moratorium”, “control share acquisition” or other similar
antitakeover statute or regulation enacted under state or federal laws in the United States
(“Takeover Statutes”) is applicable to the Company, the Shares, the Merger or the
other transactions contemplated hereby.
(iii) Pursuant to the Company’s certificate of incorporation, the Company has opted out
of Section 203 of the DGCL and therefore Section 203 of the DGCL will not apply to Parent or
Merger Sub with respect to this Agreement, the Merger and the other transactions
contemplated hereby.
(l) Environmental Matters. Except for such matters that, individually or in the
aggregate, are not reasonably likely to have a Company Material Adverse Effect:
(i) The Company, its Subsidiaries, and, to the Knowledge of the Company, their
respective predecessors, have complied and are in compliance with applicable Environmental
Laws.
(ii) The Company, its Subsidiaries, and, to the Knowledge of the Company, their
respective predecessors, have obtained, have complied with, and are in compliance, with all
permits, licenses, registrations, identification numbers, authorizations and approvals
required under applicable Environmental Laws (hereinafter “Environmental Permits”)
for the operation of their respective businesses. All such Environmental Permits are in
full force and effect and free from breach.
(iii) Neither the Company nor any Subsidiary nor, to the Knowledge of the Company, any
of their respective predecessors, has received any unresolved written or oral claim, notice
of violation, or citation concerning any actual violation or alleged violation of any
applicable Environmental Law.
(iv) None of the following exists at any property or facility currently owned or
operated by the Company or any of its Subsidiaries or, to the Knowledge of the Company, any
of their respective predecessors: (i) leaking under or above-ground storage tanks, (ii)
friable and damaged asbestos containing material, (iii) leaking equipment containing
polychlorinated biphenyls, or (iv) landfills, surface impoundments, or disposal areas, each
of which are in violation of Environmental Law.
23
(v) Neither the Company nor any Subsidiary, nor to the Knowledge of the Company, any of
their respective predecessors, has treated, recycled, stored, disposed of, arranged for the
disposal of, transported, or released any Hazardous Substances, in violation of
Environmental Laws, that has not been remedied, settled or otherwise resolved.
(vi) Notwithstanding any other representation or warranty in Article V of this
Agreement, the representations and warranties contained in this Section 5.1(l), the second
sentence of Section 5.1(e)(i), and Section 5.1(e)(iv) constitute the sole representations
and warranties of the Company relating to any Environmental Law or Hazardous Substance.
As used herein, the term “Environmental Law” means any applicable law, regulation, code,
license, permit, order, judgment, decree or injunction from any Governmental Entity (A) concerning
public health and safety and the pollution or protection of the environment (including air, water,
soil and natural resources), or (B) the presence, use, manufacturing, refining, production,
generation, transportation, treatment, recycling, transfer, distribution, importing, labeling,
testing, processing, discharge, storage, handling, release, threatened release, control, cleanup or
disposal of Hazardous Substances, in each case as amended and presently in effect.
As used herein, the term “Hazardous Substance” means any substance, pollutant, contaminant,
material, or waste, or combination thereof, whether solid, liquid, or gaseous in nature presently
listed, defined, designated or classified as hazardous, toxic or radioactive under any applicable
Environmental Law including petroleum and any derivative or by-products thereof.
(m) Taxes.
(i) The Company and each of its Subsidiaries (A) have prepared in good faith and timely
filed (taking into account any extension of time within which to file) all Tax Returns
required to be filed by any of them, and all such filed Tax Returns are correct, complete
and accurate, except in each case where such failures to so prepare or file Tax Returns, or
the failure of such filed Tax Returns to be correct, complete and accurate individually or
in the aggregate, is not reasonably likely to have a Company Material Adverse Effect;
(B) have timely paid all Taxes that are required to be paid or withheld and paid over to the
appropriate Tax authority all Taxes that the Company or any of its Subsidiaries are
obligated to withhold from amounts owing to any employee, creditor or third party, except
where such failure to so pay, withhold or remit, individually or in the aggregate, is not
reasonably likely to have a Company Material Adverse Effect; and (C) have not waived any
statute of limitations with respect to any material amount of Taxes or agreed to any
extension of time with respect to any material amount of Tax assessment or deficiency.
(ii) As of the date hereof, there are not pending or, to the Knowledge of the Company,
threatened in writing, any audits (or other similar proceedings initiated by a Governmental
Entity) in respect of Taxes to which the Company is a party, which (if determined adversely)
would reasonably be likely to have a Company Material Adverse
24
Effect. No deficiency with respect to Taxes has been proposed, asserted or assessed in
writing against the Company or any of its Subsidiaries which has not been fully paid or
adequately reserved in accordance with GAAP in the Company Reports. The Company has made
available to Parent true and correct copies of the United States federal income Tax Returns
filed by the Company and its Subsidiaries for each of the fiscal years ended April 3, 2009,
March 28, 2008 and March 30, 2007.
(iii) Neither the Company nor any of its Subsidiaries has made any compensatory
payments or has been or is a party to any compensatory agreement, contract, arrangement, or
plan that provides for compensatory payments that were not deductible or would reasonably be
expected to be nondeductible under Code section 162(m). Neither the Company nor any of its
Subsidiaries has entered into any transaction defined under Sections 1.6011-4(b)(2),
-4(b)(3) or -4(b)(4) of the Treasury Regulations promulgated under the Code.
(iv) Neither the Company nor any of its Subsidiaries is a party to, is bound by or has
any obligation under, any Tax sharing, indemnification or similar agreement, other than
(A) any such agreement among or between the Company and one or more Subsidiaries or between
Subsidiaries and (B) Tax sharing or indemnification provisions in commercial agreements that
are not primarily concerned with Taxes, such as lease agreements.
(v) The Company or any of its Subsidiaries does not have any actual or potential
liability under Treasury Regulations Section 1.1502-6 (or any comparable or similar
provision of any federal, state, provincial, local or foreign law) or as a transferee or
successor for any Taxes of any Person other than the Company or its Subsidiaries.
(vi) There are no material adjustments under Section 481 of the Code (or any similar
adjustments under any provision of the Code or similar foreign, state, provincial or local
Tax laws) that are required to be taken into account by the Company or its Subsidiaries in
any period ending after the Closing Date by reason of a change in method of accounting in
any taxable period ending on or before the Closing Date.
(vii) The Company and each of its Subsidiaries has properly maintained the
documentation necessary to avoid penalties as to transfer pricing pursuant to
section 6662(e) of the Code.
As used in this Agreement, (A) the term “Tax” (including, with correlative meaning, the
term “Taxes”) includes all federal, state, local, foreign and supranational income,
profits, franchise, gross receipts, environmental, customs duty, capital stock, severance, stamp,
payroll, sales, employment, unemployment, disability, use, ad valorem, property, withholding,
excise, production, value added, transfer, license, estimated, occupancy and other taxes, duties,
fees, charges or other assessments of any nature whatsoever, together with all interest, penalties
and additions imposed with respect to such amounts, (B) the term “Tax Return” includes all
returns and reports (including elections, declarations, disclosures, schedules, claims for refund,
statements, estimates information returns and other similar documents) required to be supplied to a
Tax authority relating to Taxes and (C) for purposes of this Section 5.1(m) and Section
25
6.1(a)(x)-(xiii) hereof, the term “Subsidiary” shall have the same meaning as the
definition of Subsidiary in Section 5.1(a) hereof except that it shall include an entity for which
the Company, directly or indirectly, acts as tax matters partner (as defined in Section 6231(a)(7)
of the Code).
(n) Intellectual Property.
(i) Section 5.1(n)(i) of the Company Disclosure Schedule sets forth a list of all
material patents, patent applications, registered Trademarks, applications to register
Trademarks, registered Copyrights and applications to register Copyrights, and registered
domain names, in each case that are owned by the Company or a Subsidiary (collectively, the
“Registered Intellectual Property”). The Company or a Subsidiary owns the
Registered Intellectual Property, and the Registered Intellectual Property is not subject to
any Lien other than Permitted Liens. To the Knowledge of the Company, each material item of
Registered Intellectual Property is valid and enforceable, and is not being misappropriated,
violated, or infringed by any third party in a manner that would have a Company Material
Adverse Effect.
(ii) Except as would not have a Company Material Adverse Effect (without giving effect
to the exception in (ii)(B) of the definition of Company Material Adverse Effect): (A) the
Company and its Subsidiaries have sufficient rights to use all Intellectual Property used in
the conduct of the business of the Company and its Subsidiaries as currently conducted;
(B) no claims are pending or, to the Knowledge of the Company, threatened, alleging that the
Company or any of its Subsidiaries is violating, misappropriating or infringing the rights
of any Person with regard to any Intellectual Property; (C) to the Knowledge of the
Company, the operation of the business of the Company and its Subsidiaries as currently
conducted does not violate, misappropriate or infringe the Intellectual Property of any
other Person; (D) the Company and/or its Subsidiaries take and have taken commercially
reasonable actions to maintain the secrecy of any Trade Secrets owned by the Company or its
Subsidiaries; (E) none of the Company nor its Subsidiaries is or will be, as a result of the
consummation of the Merger or the other transactions contemplated by this Agreement or the
performance of their obligations under this Agreement, in breach or default of any
Intellectual Property, and (F) the consummation of the Merger and the other transactions
contemplated by this Agreement will not materially impair, limit, terminate or nullify, or
cause any encumbrance on, any rights of the Company or any of its Subsidiaries in any
material Intellectual Property.
As used in this Agreement, the term “Intellectual Property” means all intellectual property
rights of any type or nature recognized by law, however denominated, throughout the world,
including, without limitation, (i) patents, patent applications, patent disclosures, and all
related continuations, continuations-in-part, divisionals, reissues, re-examinations,
substitutions, and extensions thereof (“Patents”), (ii) trademarks, service marks,
corporate names, trade names, domain names, logos, slogans, and other similar designations of
source or origin, together with the goodwill symbolized by all of the foregoing
(“Trademarks”), (iii) copyrights and copyrightable subject matter, including compilations
and moral rights and rights of attribution and integrity (“Copyrights”), (iv) computer
programs (whether in source code, object code, or
26
other form), databases, data including, without limitation, customer data, and all technology
including, without limitation, hardware, supporting the foregoing, and all documentation, including
user manuals and training materials, related to any of the foregoing, and (v) trade secrets and all
other confidential information, know-how, inventions (whether or not reduced to practice),
proprietary processes, formulae, algorithms, models, and methodologies (“Trade Secrets”).
(o) Insurance. The Company and its Subsidiaries own or hold policies of insurance,
or are self-insured, in amounts providing reasonably adequate coverage against all risks
customarily insured against by companies and subsidiaries in similar lines of business as the
Company and its Subsidiaries, and in amounts sufficient to comply with all Material Contracts and
Government Contracts to which the Company or its Subsidiaries are parties or are otherwise bound.
All material insurance policies maintained by the Company or any of its Subsidiaries
(“Insurance Policies”) are in full force and effect and all premiums due with respect to
such Insurance Policies have been paid, with such exceptions that, individually or in the
aggregate, are not reasonably likely to have a Company Material Adverse Effect. There is no
material claim pending under any Insurance Policy as to which coverage has been questioned,
denied or disputed by the underwriters of such policies and there has been no threatened
termination of, or material premium increase with respect to, any such policies.
(p) Opinion of Financial Advisors; Brokers.
(i) Xxxxxxx, Xxxxx & Co. (“Xxxxxxx Sachs”) has delivered (or promptly after the
date of this Agreement shall deliver) to the Board of Directors of the Company its written
opinion, dated the date of this Agreement, that, as of such date and subject to the various
limitations and qualifications set forth therein, the $17.55 per Share cash consideration to
be paid to the holders of the Shares (other than Parent and its Affiliates) pursuant to this
Agreement is fair from a financial point of view to such holders. A copy of such opinion
will be provided to Parent promptly for information purposes following receipt thereof by
the Company.
(ii) No broker, finder, financial advisor or investment banker (other than Xxxxxxx
Xxxxx and CSP Associates, Inc.) is entitled to any brokerage, finder’s or other fee or
commission or expense reimbursement in connection with the transactions contemplated by this
Agreement based upon arrangements made by and on behalf of the Company or any of its
Subsidiaries. Set forth on Section 5.1(p)(ii) of the Company Disclosure Schedule is the
aggregate amount of fees required to be paid based on the Per Share Merger Consideration and
the assumptions set forth on such schedule pursuant to all agreements pursuant to which any
Person required to be identified in this Section 5.1(p) is entitled to any such fee,
commission or expense reimbursement.
(q) Properties.
(i) As of the date hereof, neither the Company nor its Subsidiaries own any real
property. To the extent the Company or its Subsidiaries own real property after the date
hereof, except in any such case as would not, individually or in the aggregate, reasonably
be likely to have a Company Material Adverse Effect, the Company or its
27
applicable Subsidiary has good and valid title to each parcel of real property and all
personal property purported to be owned by the Company or any of its Subsidiaries, free and
clear of all Liens, other than Permitted Liens.
(ii) Section 5.1(q)(ii) of the Company Disclosure Schedule sets forth a list, as of the
date hereof, of all material leases, subleases, licenses or other occupancy agreements for
real property to which the Company or any of its Subsidiaries is a party that are currently
in effect (the “Leases”). As used in this Agreement, the term “Specified
Leases” means: (i) executive offices in Fort Worth, Texas (194,335 sq ft.), (ii)
warehouse and storage facility in Salalah Port, Oman (125,000 sq. ft.), (iii) executive
offices in Falls Church, Virginia (113,366 sq. ft.) and (iv) offices and residences in
Kabul, Afghanistan (47,000 sq. ft.). With respect to the Specified Leases and, except in
any such case as would not, individually or in the aggregate, reasonably be likely to have a
Company Material Adverse Effect with respect to the Leases other than the Specified Leases,
the Company or its applicable Subsidiary holds good and valid leasehold interests in the
real property and personal property purported to be leased or subleased by the Company or
any of its Subsidiaries, free and clear of all Liens, other than Permitted Liens, and
(A) all leases under which the Company or any of its Subsidiaries lease any real property
are valid and in full force and effect against the Company or any of its Subsidiaries, as
applicable, and, to the Company’s Knowledge, the counterparties thereto, in accordance with
their respective terms, and (B) there is not, under any of such leases, any existing default
by the Company or any of its Subsidiaries which, with notice or lapse of time or both, would
become a default by the Company or any of its Subsidiaries.
As used in this Agreement the term “Permitted Liens” means: (A) zoning restrictions,
easements, rights-of-way or other restrictions on the use of real property or encumbrances on title
(provided that such liens, encumbrances or restrictions do not, individually or in the
aggregate, materially and adversely interfere with the use of such real property or the Company’s
or its Subsidiaries’ operation of their respective businesses as currently operated or otherwise
materially and adversely impair the Company’s current business operations at such location);
(B) pledges or deposits by the Company or any of its Subsidiaries under workmen’s compensation
Laws, unemployment insurance Laws or similar legislation, or good faith deposits in connection with
bids, tenders, Contracts (other than for the payment of Indebtedness) or leases to which such
entity is a party, or deposits to secure public or statutory obligations of such entity or to
secure surety or appeal bonds to which such entity is a party, or deposits as security for
contested Taxes, in each case incurred or made in the ordinary course of business consistent with
past practice; (C) Liens imposed by Law, including, without limitation, carriers’, warehousemen’s,
landlords’ and mechanics’ liens, in each case incurred in the ordinary course of business
consistent with past practice for sums not yet due or being contested in good faith by appropriate
proceedings; (D) statutory Liens for Taxes, assessments or other governmental charges not yet due
and payable or which are being contested in good faith by appropriate proceedings; (E) Liens or
encumbrances that do not materially impair the ownership or use of the assets to which they relate;
(F) gaps in the chain of title evident from the records of the relevant Governmental Entity
maintaining such records; and (G) licenses granted to third parties in the ordinary course of
business by the Company or its Subsidiaries.
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(r) Affiliate Transactions. Since the Applicable Date to, and including, the date
hereof, there have been no transactions, or series of related transactions, agreements,
arrangements or understandings, nor are there any currently proposed transactions, or series of
related transactions, agreements, arrangements or understandings, that would be required to be
disclosed under Item 404 of Regulation S-K promulgated under the Securities Act that have not
been otherwise disclosed in the Company Reports filed prior to the date hereof.
(s) Contracts.
(i) Except as set forth in Section 5.1(s) of the Company Disclosure Schedule, as of the
date of this Agreement, none of the Company or any of its Subsidiaries is a party to or
bound by any: (A) Contract required to be filed by the Company with the SEC pursuant to Item
601(b)(10) of Regulation S-K under the Securities Act; (B) Contract with respect to
partnerships, joint ventures or similar arrangements; (C) Contract containing covenants of
the Company or any of its Subsidiaries purporting to limit in any material respect any line
of business, any type of produce or service, and channel of distribution, or field of
commercial endeavor or geographical area in which or with regard to which the Company or its
Subsidiaries may operate or granting material exclusive rights to the counterparty thereto
(including any agreement to which the Company or any of its Subsidiaries is subject that
grants to any party most-favored-nation or similar rights); (D) Contract that, individually
or in the aggregate with other Contracts, would or would reasonably be likely to prevent,
materially delay or materially impede the Company’s ability to consummate the Merger or the
other transactions contemplated by this Agreement or that would accelerate payment
obligations, performance deadlines, or modify or accelerate any other material obligation
due to the Merger or other transactions contemplated by this Agreement; (E) Collective
Bargaining Agreement or similar agreement; (F) Contract pursuant to which the Company or any
of its Subsidiaries has any Indebtedness in an amount in excess of $10 million outstanding
(other than intercompany indebtedness); (G) Contract licensing or otherwise specifically
concerning Intellectual Property (except for non-exclusive, commercially available,
off-the-shelf software programs for which the Company and its Subsidiaries, taken as a
whole, pay an annual fee of less than $5 million) that is material to the business of the
Company and its Subsidiaries, taken as a whole; (H) Contract that accounted for aggregate
revenue to the Company or any of its Subsidiaries of (1) more than $15 million during the
Company’s 2009 fiscal year or (2) more than $10 million during the first nine months of the
Company’s 2010 fiscal year; (I) Contract (or series of related Contracts) entered into after
the Applicable Date that involves the acquisition from another person or disposition to
another Person, directly or indirectly (by merger, license or otherwise), of assets or
capital stock or other equity interests of another Person for aggregate consideration under
such Contract (or series of related Contracts) in excess of $7.5 million (other than
acquisitions or dispositions of inventory in the ordinary course of business); (J) Contract
(or series of related Contracts) with any agency or department of the United States federal
government or other Governmental Entity, or other Government Contract, for the purchase of
goods and/or services from the Company or any of its Subsidiaries which would reasonably be
expected to result in payments to the Company or any of its Subsidiaries in excess of $5
million; (K) Contract that relates to an acquisition,
29
divestiture, merger, license or similar transaction and contains representations,
covenants, indemnities or other obligations (including indemnification, “earn-out” or other
contingent obligations), that are still in effect and, individually, could reasonably be
expected to result in payments by the Company or any of its Subsidiaries in excess of $5
million; (L) Contract that prohibits the payment of dividends or distributions in respect of
the capital stock of the Company or any of its wholly-owned Subsidiaries, prohibits the
pledging of the capital stock of the Company or any wholly-owned Subsidiary of the Company
or prohibits the issuance of guarantees by any wholly-owned Subsidiary of the Company;
(M) Contract that provides for the payment, increase or vesting of any benefits or
compensation in connection with the transactions contemplated by this Agreement; or (N)
Contract that relates to any material settlement, other than (x) releases immaterial in
nature or amount, (y) settlement agreements for cash only (which has been paid) or
(z) settlement agreements under which neither the Company nor any of its Subsidiaries has
any continuing material financial obligations or liabilities. Each such Contract described
in clauses (A)-(N) above (whether entered into before or after the date of this Agreement)
is referred to herein as a “Material Contract”. “Indebtedness” means:
(A) indebtedness for borrowed money or for the deferred purchase price of property or
services (but excluding trade payables and receivables in the ordinary course of business
consistent with past practice), including indebtedness evidenced by a note, bond, debenture
or similar instrument; (B) obligations to pay rent or other amounts under any lease of real
or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet under GAAP;
(C) obligations in respect of outstanding letters of credit, acceptances and similar
obligations created for the account of such Person; (D) liabilities under interest rate cap
agreements, interest rate swap agreements, foreign currency exchange agreements and other
hedging agreements or arrangements; and (E) any guarantee of any such obligations described
in clauses (A) through (D) of this definition.
(ii) Each of the Material Contracts is valid and binding on the Company and each of its
Subsidiaries party thereto and, to the Knowledge of the Company, each other party thereto
and is in full force and effect, except for such failures to be valid and binding or to be
in full force and effect that, individually or in the aggregate, have not had, and will not
have a Company Material Adverse Effect. There is no default under any Material Contract
either by the Company or any of its Subsidiaries party thereto or, to the Knowledge of the
Company, by any other party thereto, and no event has occurred that with notice or lapse of
time or both would constitute a default thereunder by the Company or any of its Subsidiaries
party thereto or, to the Knowledge of the Company, any other party thereto, in each case
except as, individually or in the aggregate, have not had, and would not reasonably be
likely to have, a Company Material Adverse Effect. Except for such matters that,
individually or in the aggregate, have not had or would not reasonably be expected to have,
a Company Material Adverse Effect, (x) the Company has not received any written notice from
any counterparty that such counterparty intends to terminate, or not renew, any Material
Contract, and (y) as of the date of this Agreement, the Company has not received any written
notice from any counterparty that is seeking the renegotiation thereof in any material
respect or substitute performance thereunder in any material respect. Complete and correct
copies of each Material
30
Contract, as amended or modified, have been delivered or made available to Parent prior
to the date hereof.
(t) Government Contracts. Except as set forth in Section 5.1(t) of the Company
Disclosure Schedule:
(i) To the Knowledge of the Company, since the Applicable Date, with respect to each
Government Contract (as defined below) or outstanding Bid (as defined below) to which the
Company or its Subsidiaries is a party: (i) the Company and its Subsidiaries has complied in
all material respects with all material terms and conditions of such Government Contract or
Bid, including clauses, provisions and requirements incorporated expressly, by reference or
by operation of Law therein; (ii) the Company and its Subsidiaries has complied in all
material respects with all applicable requirements of statute, rule, regulation, order or
agreement with the U.S. Government pertaining to such Government Contract or Bid; (iii) all
material representations and material certifications executed, acknowledged or set forth in
or pertaining to such Government Contract or Bid were current, accurate and complete in all
material respects as of their effective date, and the Company and its Subsidiaries have
complied in all material respects with all such material representations and material
certifications; (iv) neither the U.S. Government, nor any prime contractor, subcontractor or
any other person has notified the Company or any of its Subsidiaries, in writing, that the
Company or any of its Subsidiaries has breached or violated any Law pertaining to such
Government Contract or Bid, except for such breaches or violations that, individually or in
the aggregate, are not reasonably likely to have a Company Material Adverse Effect; (v) no
termination for convenience, termination for default, cure notice or show cause notice has
been issued in writing and not resolved or cured; (vi) no material cost incurred by the
Company or any of its Subsidiaries has been questioned in writing or disallowed other than
those which have been resolved.
(ii) Since the Applicable Date, the Company and each of its Subsidiaries are and have
been in compliance in all material respects with Executive Order 11246, Section 503 of the
Rehabilitation Act of 1973, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974,
and all implementing regulations, all as amended, with respect to each Government Contract.
Since the Applicable Date, the Company and each of its Subsidiaries are and have been in
compliance in all material respects with all applicable foreign laws, rules, regulations,
decisions and orders relating to personnel policies, affirmative action, and/or government
contracts in each jurisdiction in which the Company or any of its Subsidiaries has business
operations.
(iii) To the Knowledge of the Company, since the Applicable Date, there has been no (A)
civil fraud, false claim, criminal act or bribery (in each case as such concept is defined
under the state or federal laws of the United States), or any other material violation of
applicable law, by the Company or any of its Subsidiaries or any director, officer,
principal or employee of the Company or its Subsidiaries, (B) written request by a
Governmental Entity for a material contract price adjustment based on a claimed material
disallowance by the Defense Contract Audit Agency (or other applicable
31
Governmental Entity) or a written material claim of defective pricing in material
violation of the applicable acquisition or procurement regulations of a Governmental Entity,
or (C) material dispute between the Company or any of its Subsidiaries and a Governmental
Entity (other than disputes in the ordinary course of business which are no longer
outstanding). To the Knowledge of the Company, since the Applicable Date, none of the
Company or any of its Subsidiaries, nor any of their respective affiliates, directors,
officers, or principals has or currently is under administrative, civil or criminal
investigation, indictment or information or material audit (other than routine audits) with
respect to any alleged material irregularity, material misstatement or material omission
arising under or relating to any Government Contract or Bid and none of the Company or any
of its Subsidiaries nor any of their respective affiliates, directors, officers, or
principals has made or has been required to make a disclosure pursuant to applicable
regulations with respect to any alleged material irregularity, material misstatement or
material omission arising under or relating to any Government Contract or Bid.
(iv) None of the Company or its Subsidiaries, nor, to the Company’s Knowledge, any of
their respective affiliates, directors, or officers is, or at any time since the Applicable
Date has been, suspended or debarred from doing business with the U.S. Government or, to the
Company’s Knowledge, has been declared nonresponsible or ineligible for U.S. Government
contracting.
(v) The Company and each of its Subsidiaries possesses all necessary security
clearances and Permits for the execution of its obligations under any Executory Government
Contract. The Company and each of its Subsidiaries has the proper procedures to conduct
business of a classified nature up to the level of its current clearances. The Company and
each of its Subsidiaries is in compliance in all material respects with applicable agency
security requirements, as appropriate, and has in place proper procedures, practices and
records to maintain security clearances necessary to perform its Executory Government
Contracts.
(vi) To the Knowledge of the Company, the cost accounting system of the Company and
each of its Subsidiaries is in compliance in all material respects with regulations
applicable to its Government Contracts (including the Federal Acquisition Regulation) and
since the Applicable Date has not been determined by any Governmental Entity not to be in
compliance with the requirements of the Federal Cost Accounting Standards in any material
respect. The Company and each of its Subsidiaries has reached agreement with the cognizant
government representatives approving and “closing” all indirect costs charged to Government
Contracts for fiscal year 2004 and each prior fiscal year, and each of those years are
closed.
(vii) With respect to any Bid, to the Knowledge of the Company, since the Applicable
Date, there has been no material irregularity, material misstatement or material omission by
the Company or any of its Subsidiaries arising under or relating to such Bid.
(viii) Since the Applicable Date, no Government Contract has been terminated by a
Governmental Entity for default and there has been no written material claim or
32
material request for equitable adjustment by the Company or any of its Subsidiaries
against a Governmental Entity with respect to any Government Contract.
(ix) For all purposes of this Agreement,
“Bid” means any quotation, bid or proposal by the Company or any of its Subsidiaries
which, if accepted or awarded, would lead to a Contract with the U.S. Government or any other
entity, including a prime contractor or a higher tier subcontractor to the U.S. Government, for the
design, manufacture or sale of products or the provision of services by the Company or its
Subsidiaries.
“Executory Government Contract” means a Government Contract that has not been closed
by the U.S. Government, such prime contractor or such subcontractor, as appropriate, and is
actively being performed by the Company or any of its Subsidiaries.
“Government Contract” means any prime contract, subcontract, teaming agreement or
arrangement, joint venture, basic ordering agreement, letter contract, purchase order, delivery
order, task order, grant, cooperative agreement, Bid, change order, arrangement or other commitment
or funding vehicle of any kind relating to the business of the Company between the Company or any
of its Subsidiaries and (i) the U.S. Government, (ii) any prime contractor to the U.S. Government
or (iii) any subcontractor with respect to any contract described in clause (i) or (ii).
5.2. Representations and Warranties of Parent and Merger Sub. Parent and Merger Sub each
hereby represent and warrant to the Company that:
(a) Organization, Good Standing and Qualification. Each of Parent and Merger Sub is
a legal entity duly organized, validly existing and in good standing (with respect to
jurisdictions that recognize the concept of good standing) under the Laws of the jurisdiction of
its organization and has all requisite corporate or similar power and authority to own, lease and
operate its properties and assets and to carry on its business as it is presently conducted and
is qualified to do business and is in good standing as a foreign corporation (with respect to
jurisdictions that recognize the concept of good standing) or other legal entity in each
jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of
its business requires such qualification, except where any such failure to be so organized,
qualified, in good standing or to have such power or authority would not, individually or in the
aggregate, be reasonably likely to prevent, materially delay or materially impede the ability of
Parent and Merger Sub to consummate the transactions contemplated by this Agreement. Parent has
made available to the Company complete and correct copies of Parent’s and Merger Sub’s
certificates of incorporation, bylaws or comparable governing documents, each as amended to the
date of this Agreement.
(b) Corporate Authority and Approval. No vote of holders of capital stock of Parent
is necessary to approve this Agreement and the Merger and the other transactions contemplated
hereby. Each of Parent and Merger Sub has all requisite corporate power and authority and has
taken all corporate action necessary in order to execute, deliver and perform its obligations
under this Agreement, subject only to the adoption of this Agreement by Parent
33
as the sole stockholder of Merger Sub, which will occur immediately following the execution
of this Agreement, and to consummate the Merger. This Agreement has been duly executed and
delivered by each of Parent and Merger Sub and, assuming due authorization, execution and
delivery hereof by the Company, is a valid and binding agreement of, Parent and Merger Sub,
enforceable against each of Parent and Merger Sub in accordance with its terms, subject to the
Bankruptcy and Equity Exception.
(c) No Conflict; Required Filings and Consents.
(i) The execution, delivery and performance of this Agreement by Parent and Merger Sub
does not and will not: (A) conflict with or violate the certificate of incorporation or
bylaws or comparable governing documents of Parent or Merger Sub; or (B) assuming that all
consents, approvals, authorizations, declarations and permits contemplated by clauses
(A) through (E) of subsection (ii) below have been obtained, and all filings described in
such clauses have been made, conflict with, result in any breach or violation of or
constitute a default (or an event which with or without notice, lapse of time or both would
become a default) or result in the loss of a benefit under, or give rise to any breach or
violation of, a termination or right of termination, acceleration or other alteration in the
rights under, any material Contract to which Parent or Merger Sub is a party or by which
Parent or Merger Sub or its or any of their respective properties are bound or any Law to
which Parent or Merger Sub is subject, except, in the case of clause (B) above, for any such
conflict, violation, breach, termination, default, acceleration, loss, alteration or other
occurrence that would not, individually or in the aggregate, be reasonably likely to
prevent, materially delay or materially impede the consummation of the transactions
contemplated by this Agreement.
(ii) The execution, delivery and performance of this Agreement by Parent and Merger Sub
and the consummation of the transactions contemplated hereby by Parent and Merger Sub do not
and will not require Parent or Merger Sub to make or obtain any consent, approval,
authorization, declaration or permit of, action by, filing with or notification to, any
Governmental Entity, except for: (A) the applicable requirements of the Exchange Act and the
rules and regulations promulgated thereunder; (B) the applicable requirements of the HSR
Act, and the rules and regulations promulgated thereunder; (C) the applicable requirements
of the NYSE; (D) the filing with the Secretary of State of the State of Delaware of the
Certificate of Merger as required by the DGCL; and (E) any such consent, approval,
authorization, declaration, permit, action, filing or notification the failure of which to
make or obtain, would not, individually or in the aggregate, reasonably be likely to
prevent, materially delay or materially impede the consummation of the transactions
contemplated by this Agreement.
(d) Litigation. As of the date of this Agreement, there are no civil, criminal or
administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the
actual knowledge of the officers of Parent, threatened against Parent or Merger Sub that seek to
enjoin, or would reasonably be likely to have the effect of preventing, making illegal, or
otherwise interfering with, any of the transactions contemplated by this Agreement, except as
would not, individually or in the aggregate, reasonably be likely to prevent, materially
34
delay or materially impede the ability of Parent and Merger Sub to consummate the
transactions contemplated by this Agreement.
(e) Financing.
(i) Assuming the accuracy of the representations and warranties set forth in Section
5.1(b)(i) and the performance by the Company of its obligations under this Agreement, the
amount of funds contemplated to be provided pursuant to the Financing Letters shall be
sufficient to pay the aggregate Per Share Merger Consideration and to fund any repayment or
refinancing of debt contemplated in this Agreement or the Financing Letters or required
pursuant to the terms of the Indenture.
(ii) Parent and Merger Sub have delivered to the Company a complete and accurate copy,
as of the date of this Agreement, of (i) an executed commitment letter (the “Equity
Financing Letter”) pursuant to which the investors party thereto have committed, upon
the terms and subject to conditions thereof, to invest the cash amounts set forth therein
(the “Equity Financing”), and (ii) an executed commitment letter, dated as of the
date of this Agreement, from Bank of America Securities LLC, Citigroup Global Markets Inc.,
Barclays Bank PLC and Deutsche Bank Trust Company Americas, and each of their respective
affiliated entities named therein (the “Debt Commitment Letter” and, together with
the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders
party thereto have committed to provide, upon the terms and subject conditions therein, debt
financing in an aggregate amount set forth therein (being collectively referred to as the
“Debt Financing” and, together with the Equity Financing, the “Financing”).
The term “Debt Commitment Letter” as used herein shall mean the Debt Commitment Letter to
the extent not superseded by the New Debt Commitment Letter (as defined in
Section 6.14(b)(ii)) at the time in question and the New Debt Commitment Letter to the
extent then in effect.
(iii) As of the date hereof, neither the Financing Letters nor the fee letter
referenced in the Debt Commitment Letter has been amended or modified and the commitments
set forth in the Financing Letters have not been withdrawn or rescinded in any respect. The
Financing Letters, in the form so delivered to the Company on the date hereof, are in full
force and effect and each constitutes a legal, valid and binding obligation of Parent and,
to the knowledge of the officers of Parent, the other parties thereto, in each case except
as such enforceability may be limited by the Bankruptcy and Equity Exception. There are no
conditions precedent or other contingencies related to the funding of the full amount of the
Financing, other than as expressly set forth in the Financing Letters. Assuming the
accuracy of the representations and warranties set forth in Section 5.1, as of the date of
this Agreement, no event has occurred which, with or without notice, lapse of time or both,
would or would reasonably be expected to constitute a default or breach on the part of
Parent or Merger Sub, as applicable, or to the knowledge of the officers of Parent, any
other parties thereto under any term or condition of the Financing Letters other than to the
extent that any term or condition requires any action by, or otherwise relates to, the
Company or any of its Subsidiaries. Assuming the accuracy of the Company’s representations
and warranties contained herein, as of the
35
date of this Agreement, neither Parent nor Merger Sub has any reason to believe that
any of the conditions to the Financing will not be satisfied or that the Financing will not
be available to Parent or Merger Sub on the date of the Closing. Except for fee letters
with respect to fees, market flex and related arrangements with respect to the Debt Financing, of which
Parent has delivered a true and complete (aside from redactions) redacted copy to the Company on or prior to
the date of this Agreement (but which documents, fee and
other information (other than provisions in the fee letter that were
not redacted) do not
relate to the amounts or conditionality of, or contain any conditions precedent to, the
funding of the Debt Financing), as of the date hereof there are no side letters or other
agreements, Contracts or arrangements related to the funding or investing, as applicable, of
the full amount of the Financing other than as expressly set forth in the Financing Letters
and delivered to the Company prior to the date hereof. Parent has fully paid or caused to
be paid any and all commitment and other fees, costs and expenses that have been incurred
and are due and payable on or prior to the date hereof in connection with the Financing
Letters.
(iv) As of the date hereof, none of Parent, Merger Sub or any of their respective
Affiliates is a party to any Contracts, or has made or entered into any formal or informal
arrangements or other understandings (whether or not binding), with any Record Holder that
is not an officer or employee of the Company or one of its Subsidiaries concerning any
investments to be made in, or contributions to be made to, Parent or Merger Sub in
connection with the Merger and/or any other transactions contemplated by this Agreement
other than as set forth in the Financing Letters.
(f) Capitalization of Merger Sub. The authorized capital stock of Merger Sub
consists solely of 2000 shares of capital stock, comprised of (i) 1,000 shares of common stock,
par value $0.01 per share, 100 shares of which are validly issued and outstanding, and (ii) and
1,000 shares of preferred stock, par value $0.01 per share, none of which is issued or
outstanding as of the date of this Agreement. All of the issued and outstanding capital stock of
Merger Sub is, and at the Effective Time will be, owned by Parent or a direct or indirect
wholly-owned Subsidiary of Parent. Merger Sub has not conducted any business prior to the date
hereof and has no, and prior to the Effective Time will have no, assets, liabilities or
obligations of any nature other than those incident to its formation and pursuant to this
Agreement and the Merger and the other transactions contemplated by this Agreement.
(g) Brokers. No agent, broker, finder or investment banker is entitled to any
brokerage, finder’s or other fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Parent or Merger Sub for which
the Company could have any liability.
(h) Solvency. To the knowledge of the officers of Parent, based on information
available to Parent as of the date of this Agreement, the Surviving Corporation will be Solvent
immediately after giving effect to the transactions contemplated by this Agreement, including the
Financing and the payment of the aggregate Per Share Merger Consideration, any repayment or
refinancing of debt contemplated in this Agreement or the
36
Financing Letters, payment of all amounts required to be paid in connection with the
consummation of the transactions contemplated hereby, and payment of all related fees and
expenses, assuming (i) satisfaction of the conditions to Parent’s and Merger Subs’ obligation to
consummate the Merger as set forth herein, (ii) the accuracy of the representations and
warranties of the Company set forth in this Agreement and in any certificate delivered pursuant
to the terms of this Agreement, (iii) the Required Information (as defined below) fairly presents
the consolidated financial condition of the Company and its Subsidiaries as at the end of the
periods covered thereby and the consolidated results of operations of the Company and its
Subsidiaries for the periods covered thereby and (iv) any estimates, projections or forecasts of
the Company and its Subsidiaries have been prepared in good faith based upon assumptions that
were and continue to be reasonable. For the purposes of this Agreement, the term
“Solvent” when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “fair saleable value” of the assets of such Person will, as
of such date, exceed (i) the value of all “liabilities of such Person, including contingent and
other liabilities,” as of such date, as such quoted terms are generally determined in accordance
with applicable Laws governing determinations of the insolvency of debtors, and (ii) the amount
that will be required to pay the probable liabilities of such Person on its existing debts
(including contingent and other liabilities) as such debts become absolute and mature, (b) such
Person will not have, as of such date, an unreasonably small amount of capital for the operation
of the businesses in which it is engaged as of such date and (c) such Person will be able to pay
its liabilities, including contingent and other liabilities, as they mature. For purposes of
this definition, “not have an unreasonably small amount of capital for the operation of the
businesses in which it is engaged” means that such Person will be able to generate enough cash
from operations, asset dispositions or refinancing, or a combination thereof, to meet its
obligations as they become due. “Required Information” means all financial and other
pertinent information regarding the Company and its Subsidiaries as may be reasonably requested
of the Company by Parent or Merger Sub (including in connection with Parent’s preparation of pro
forma financial statements), including (i) financial statements prepared in accordance with GAAP,
financial data and audit reports (including audited financial statements of the Company as of,
and for, the fiscal year ended April 2, 2010), (ii) other information and data regarding the
Company and the Subsidiaries of the type and form, and for the periods, in each case, required by
Regulation S-X and Regulation S-K under the Securities Act for registered offerings of securities
under the Securities Act, and of the type and form, and for the periods, in each case,
customarily included in Offering Documents used to syndicate credit facilities of the type to be
included in the Available Financing and in Offering Documents used in private placements of debt
securities under Rule 144A of the Securities Act, in each case assuming that such syndication of
credit facilities and offering(s) of debt securities were consummated at the same time during the
Company’s fiscal year as such syndication and offering(s) of debt securities will be made, and
(iii) such other information and data as otherwise required in connection with the Debt Financing
and the transactions contemplated by this Agreement or as otherwise necessary in order to assist
in receiving a customary “comfort” letter (including “negative assurance” comfort) from the
independent auditors of the Company.
(i) Limited Guarantee. Concurrently with the execution of this Agreement, the
Guarantor has delivered to the Company the duly executed Limited Guarantee executed by
37
the Guarantor, in favor of the Company with respect to the performance by Parent and Merger
Sub, respectively, of certain of their respective obligations under this Agreement. The Limited
Guarantee is in full force and effect and is the valid, binding and enforceable obligation of
Guarantor, subject to the Bankruptcy and Equity Exception, and no event has occurred which, with
or without notice, lapse of time or both, would constitute a default on the part of Guarantor
under the Guarantee.
(j) Absence of Certain Agreements. As of the date of this Agreement, neither Parent
nor any of its Affiliates has entered into any agreement, arrangement or understanding (in each
case, whether oral or written), or authorized, committed or agreed to enter into any agreement,
arrangement or understanding (in each case, whether oral or written), (i) pursuant to which any
stockholder of the Company would be entitled to receive consideration of a different amount or
nature than the Per Share Merger Consideration or pursuant to which, other than the Voting
Agreement, any stockholder of the Company agrees to vote to adopt this Agreement or the Merger or
agrees to vote against any Superior Proposal or (ii) with any member of the Company’s management
or directors that relate in any way to the Company or the transactions contemplated by this
Agreement.
(k) Stock Ownership. Neither Parent nor Merger Sub owns, beneficially or of record,
any shares of capital stock of the Company, except pursuant to the Voting Agreement.
(l) No Other Company Representations or Warranties. Except for the representations
and warranties of the Company set forth in this Agreement and any certificate or document
delivered in connection with this Agreement, Parent and Merger Sub hereby acknowledge that
neither the Company nor any of its Subsidiaries, nor or any of their respective stockholders,
directors, officers, employees, affiliates, advisors, agents or representatives, nor any other
Person, has made or is making any other express or implied representation or warranty with
respect to the Company or any of its Subsidiaries or their respective business or operations,
including with respect to any information provided or made available to Parent or Merger Sub.
Neither the Company nor any of its Subsidiaries, nor any of their respective stockholders,
directors, officers, employees, affiliates, advisors, agents or representatives, will have or be
subject to any liability or indemnification obligation to Parent or Merger Sub resulting from the
delivery, dissemination or any other distribution to Parent, Merger Sub or their respective
stockholders, directors, officers, employees, affiliates or representatives, or the use by
Parent, Merger Sub or their respective stockholders, directors, officers, employees, affiliates
or representatives of any information, documents, estimates, projections, forecasts or other
forward-looking information, business plans or other material provided or made available to
Parent, Merger Sub or their respective stockholders, directors, officers, employees, affiliates
or representatives, including without limitation in certain “data rooms,” confidential
information memoranda or management presentations in anticipation or contemplation of any of the
transactions contemplated by this Agreement, other than fraud in connection therewith.
(m) Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking
Statements and Business Plans. In connection with the due diligence investigation of
38
the Company by Parent and Merger Sub, Parent and Merger Sub have received and may continue
to receive from the Company certain estimates, projections, forecasts and other forward-looking
information, as well as certain business plan information, regarding the Company and its business
and operations. Parent and Merger Sub hereby acknowledge that there are uncertainties inherent
in attempting to make such estimates, projections, forecasts and other forward-looking
statements, as well as in such business plans, with which Parent and Merger Sub are familiar,
that Parent and Merger Sub are taking full responsibility for making their own evaluation of the
adequacy and accuracy of all estimates, projections, forecasts and other forward-looking
information, as well as such business plans, so furnished to them (including the reasonableness
of the assumptions underlying such estimates, projections, forecasts, forward-looking information
or business plans), and that Parent and Merger Sub will have no claim against the Company or any
of its Subsidiaries, or any of their respective stockholders, directors, officers, employees,
affiliates, advisors, agents or representatives, with respect thereto. Accordingly, Parent and
Merger Sub hereby acknowledge that, except as otherwise set forth in this Agreement, none of the
Company nor any of its Subsidiaries, nor any of their respective stockholders, directors,
officers, employees, affiliates, advisors, agents or representatives, has made or is making any
representation or warranty with respect to such estimates, projections, forecasts,
forward-looking statements or business plans (including the reasonableness of the assumptions
underlying such estimates, projections, forecasts, forward-looking statements or business plans).
Nothing in Section 5.2(l) or this Section 5.2(m) shall impair (or be construed to impair) the
rights of Parent and Merger Sub in respect of any of the representations and warranties in
Section 5.1 or any covenant or agreement of the Company contained in this Agreement.
ARTICLE VI
Covenants
6.1. Interim Operations.
(a) The Company covenants and agrees as to itself and its Subsidiaries that, after the date
hereof and prior to the Effective Time (unless Parent shall otherwise approve in writing (such
approval not to be unreasonably withheld, delayed or conditioned)), and except as otherwise
expressly contemplated by this Agreement or required by applicable Laws or as set forth on
Section 6.1(a) of the Company Disclosure Schedule, the Company and its Subsidiaries shall cause
the business of it and its Subsidiaries to be conducted in the ordinary course consistent with
past practice and it and its Subsidiaries shall use their respective reasonable efforts to
preserve their business organizations intact and maintain existing relations and goodwill with
Governmental Entities, customers, suppliers, employees and business associates. Without limiting
the generality of the foregoing, and in furtherance thereof, from the date of this Agreement
until the Effective Time, except (A) as otherwise expressly contemplated or specifically
permitted by this Agreement, (B) as Parent may approve in writing (such approval not to be
unreasonably withheld, delayed or conditioned (other than with respect to subsections (i), (ii),
(iii), (iv), (vi), (vii), (viii), (x), (xiii), (xiv), (xvi), (xviii), (xix), (xx), (xxi), (xxii)
(collectively, the “specified operating covenants”) or (xxiii) (but solely in the case of
subsection (xxiii), with respect to the specified operating
39
covenants), in which cases (involving the specified operating covenants) Parent may withhold
its consent in its sole discretion)), (C) as required by applicable Law or any Governmental
Entity or (D) as set forth in Section 6.1 of the Company Disclosure Schedule, the Company will
not and will not permit its Subsidiaries to:
(i) adopt any change in the certificate of incorporation or bylaws or other applicable
governing instruments of the Company or any of its Subsidiaries;
(ii) merge or consolidate the Company or any of its Subsidiaries with any other Person;
(iii) other than capital expenditures, which shall be subject to subparagraph (ix) of
this Section 6.1(a), make any acquisition of all or substantially all of the capital stock
or assets of any other Person, whether by way of stock purchase, asset purchase, merger or
otherwise (any such transaction, an “Acquisition”), with a value or purchase price
in the aggregate in excess of $10 million in any transaction or series of related
transactions (and the Company shall provide reasonable advance notice to Parent of the
consummation of any Acquisition with a value or purchase price in excess of $10 million), or
make more than three Acquisitions in the aggregate, other than Acquisitions pursuant to
Contracts in effect as of the date of this Agreement, copies of which have been provided to
Parent or made available on the Company Data Site prior to the date hereof; (“Company
Data Site,” as used in this Agreement, means the on-line data room established by the
Company with Intralinks, Inc., by which the Company provided access to documents and
materials to Parent and Merger Sub in connection with the transactions contemplated by this
Agreement);
(iv) issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee or
encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease,
license, guarantee or encumbrance of, any shares of capital stock of the Company or any of
its Subsidiaries (other than (A) the issuance of Shares upon the settlement of RSUs under
the Stock Plan (and dividend equivalents thereon, if applicable) in accordance with the
terms of the Stock Plan or (B) the issuance of shares by a wholly-owned Subsidiary of the
Company to the Company or another wholly-owned Subsidiary), or securities convertible or
exchangeable into or exercisable for any shares of such capital stock, or any options,
warrants or other rights of any kind to acquire any shares of such capital stock or such
convertible or exchangeable securities;
(v) make any loans, advances or capital contributions to or investments in any Person
(other than the Company or any direct or indirect wholly-owned Subsidiary of the Company);
(vi) declare, set aside, make or pay any dividend or other distribution, payable in
cash, stock, property or otherwise, with respect to any of its capital stock (except
dividends paid by any direct or indirect wholly-owned Subsidiary of the Company to the
Company or to any other direct or indirect wholly-owned Subsidiary of the Company) or enter
into any agreement with respect to the voting of its capital stock;
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(vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise
acquire, directly or indirectly, any of its capital stock or securities convertible or
exchangeable into or exercisable for any shares of its capital stock (other than the
acquisition of any Shares tendered by current or former employees or directors in order to
pay Taxes in connection with the settlement of RSUs and other awards under the Stock Plan);
(viii) enter into any Contracts relating to interest rate protection, or incur, issue,
modify, renew, syndicate or refinance any Indebtedness (other than (i) any letters of credit
issued in the ordinary course of business, (ii) the refinancing of any existing Indebtedness
of the Company in the ordinary course of business (provided that any such refinancing
Indebtedness so incurred must be voluntarily prepayable without premium, penalties or other
costs in excess of $500,000 in the aggregate) and (iii) any swap agreements and collar
agreements entered into in the ordinary course of business consistent with past practice);
(ix) except for reasonable expenditures related to operational emergencies that are not
in excess of $1 million individually or $2.5 million in the aggregate, make or authorize any
capital expenditures in excess of $6 million in the aggregate; provided, that in the case of
any expenditures related to operational emergencies, Parent will respond to any request for
consent hereunder within 24 hours of receiving such request;
(x) make any material changes with respect to financial or Tax accounting policies or
procedures, except as required by applicable Law or by changes in GAAP;
(xi) settle any litigation or other proceedings before a Governmental Entity (other
than with respect to any Tax audits, litigation or proceedings) for an amount in excess of
$3 million individually or $10 million in the aggregate;
(xii) except to the extent required by Law, make any material Tax election;
(xiii) enter into any settlement, compromise or closing agreement with respect to any
material Tax liability or Tax refund or file any amended Tax Return with respect to any
material Tax;
(xiv) transfer, sell, lease, license, mortgage, pledge, surrender, encumber, divest,
cancel, abandon or allow to lapse or expire or otherwise dispose of any material amount of
assets, product lines or businesses of the Company or its Subsidiaries, including capital
stock of any of its Subsidiaries, other than sales of inventory and parts in the ordinary
course of business consistent with past practice or pursuant to Contracts in force on the
date of this Agreement, transactions solely among the Company and/or its wholly-owned
Subsidiaries that would not result in any increase (other than a de minimis increase) in the
Tax liability of the Company and its Subsidiaries or pursuant to Contracts in effect prior
to the date of this Agreement, copies of which have been provided or made available to
Parent prior to the date hereof;
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(xv) except as required pursuant to a Benefit Plan in effect prior to the date of this
Agreement or as otherwise required by applicable Law, (A) grant or provide any severance or
termination payments or benefits to Service Providers of the Company Group except for new
hires, in the ordinary course of business consistent with past practice, (B) increase the
compensation to any Service Provider in excess, in the aggregate, of 3.75% of the current
aggregate compensation of Service Providers as of the date hereof (provided that any such
increase is in the ordinary course of business consistent with past practice), (C) other
than, with respect to medical or dental Benefit Plans, as would not reasonably be expected,
individually or in the aggregate, to result in material expense or liability to the Company
or any of its Subsidiaries, establish, adopt, terminate or materially amend any Benefit Plan
or any plan, program, arrangement, policy or agreement that would be a Benefit Plan if it
were in existence on the date hereof or (D) grant any equity or equity-based awards;
provided, that the Company may issue (i) RSUs in respect of not more than 200,000
Shares in the ordinary course of business consistent with past practice and (ii) additional
RSUs on a contingent basis such that the issuance of such additional RSUs is subject to the
termination of this Agreement; it being understood and agreed that the Company or a
Subsidiary of the Company may make offers of employment to newly hired non-executive
employees in the ordinary course of business consistent with past practice that are not
inconsistent with the terms of this subsection (xv);
(xvi) adopt a plan or agreement of complete or partial liquidation or dissolution of
the Company or any of its Subsidiaries;
(xvii) grant any Lien other than Permitted Liens and except in connection with
Indebtedness permitted under Section 6.1(a)(viii);
(xviii) in the case of Subsidiaries of the Company which are organized in jurisdictions
other than a state of the United States, make any investment in debt or equity securities
issued by the Company or any of its Subsidiaries organized under the laws of a state of the
United States;
(xix) permit any of its Subsidiaries or any of its or their respective directors,
officers, managers, employees, independent contractors, representatives or agents to
promise, authorize or make any payment to, or otherwise contribute any item of value to,
directly or indirectly, any non-U.S. official, in each case, in violation of the FCPA;
(xx) adopt or implement any stockholder rights plan or amend the Rights Plan, in each
case, in any manner adverse to Parent or Merger Sub;
(xxi) unless such action is permitted by Section 6.2, waive, release, fail to enforce,
or consent to any material matter with respect to which its consent is required under, any
material confidentiality, standstill or similar agreement to which the Company or any of its
Subsidiaries is a party;
42
(xxii) enter into, amend, waive or terminate any transaction that would be required to
be disclosed pursuant to Section 5.1(r) if entered into at any time after the Applicable
Date and prior to or on the date hereof; or
(xxiii) agree, authorize or commit to do any of the foregoing.
(b) Parent shall not knowingly take or permit any of its Affiliates to take any action that
would reasonably be expected to adversely affect, prevent or delay in any material respect the
consummation of the Merger.
(c) If the Company obtains actual knowledge of any activities of the Company or any of its
Subsidiaries, including those activities of their respective directors, officers, managers,
employees, independent contractors, representatives or agents, that the Company reasonably
believes to be in violation of the FCPA, the Company shall, and shall cause each of its
Subsidiaries to use their reasonable best efforts to, cease such activities. The Company shall,
and shall cause its Subsidiaries to use their reasonable best efforts to, take all actions
required by law to remediate any actions taken by the Company or its Subsidiaries, or any of
their respective directors, officers, managers, employees, independent contractors,
representatives or agents in violation of the FCPA.
6.2. Acquisition Proposals.
(a) Notwithstanding anything to the contrary contained in this Agreement, during the period
beginning on the date of this Agreement and continuing until 12:01 a.m. (New York time) on the
28th day after the date of this Agreement (the “No-Shop Period Start Date”), the Company
and its Subsidiaries and their respective directors, officers, employees, controlled Affiliates,
investment bankers, attorneys, accountants and other advisors or representatives (collectively,
“Representatives”), shall have the right to: (i) initiate, solicit and encourage any
inquiry or the making of any proposals or offers that constitute Acquisition Proposals, including
by way of providing access to non-public information to any Persons pursuant to confidentiality
agreements entered into after the date hereof on terms that are no less favorable in the
aggregate to the Company than those contained in the Confidentiality Agreement (it being
understood that, notwithstanding the terms of the Confidentiality Agreement, such confidentiality
agreements need not prohibit the submission of Acquisition Proposals or amendments thereto to the
Company Board in confidence) or, to the extent applicable, pursuant to confidentiality agreements
entered into before the date of this Agreement (it being understood that the Company Board shall
have the right to waive any prohibition with respect to submission of Acquisition Proposals or
amendments thereto in effect prior to the date hereof); provided that the Company shall
promptly (and, in any event, within forty-eight (48) hours) make available to Parent and Merger
Sub any material non-public information concerning the Company or its Subsidiaries that is
provided to any Person given such access which was not previously made available to Parent or
Merger Sub; and (ii) engage or enter into, continue or otherwise participate in any discussions
or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals
or otherwise cooperate with or assist or participate in or facilitate any such inquiries,
proposals, discussions or negotiations or any effort or attempt to make any Acquisition
Proposals.
43
(b) Except as expressly permitted by this Section 6.2, on and after the No-Shop Period Start
Date, the Company and its Subsidiaries and their respective officers and directors shall, and the
Company shall direct, and shall use its reasonable best efforts to cause, its and its
Subsidiaries’ other Representatives to, immediately cease and cause to be terminated any
discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition
Proposal and request any such Persons to promptly return or destroy all confidential information
concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 6.2,
during the period commencing on the No-Shop Period Start Date and continuing until the Effective
Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the
Company and its Subsidiaries shall not, and shall use its and their reasonable best efforts to
cause its and their respective Representatives not to, directly or indirectly, take any action
permitted by Section 6.2(a) or (i) initiate, solicit or knowingly encourage (including by way of
furnishing non-public information) any inquiries regarding, or the making of any proposal or
offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal,
(ii) engage in, continue or otherwise participate in any discussions or negotiations regarding,
or provide any non-public information or data to any Person relating to, or for the purpose of
knowingly encouraging, any Acquisition Proposal, (iii) enter into any letter of intent, agreement
or agreement in principle with respect to any Acquisition Proposal, or (iv) otherwise knowingly
facilitate any effort or attempt to make an Acquisition Proposal (including, without limitation,
by way of amending the Rights Plan to knowingly facilitate an Acquisition Proposal). No later
than 2 business days after the No-Shop Period Start Date, the Company shall, if requested by
Parent, notify Parent in writing of the number of parties that submitted an Acquisition Proposal
prior to the No-Shop Period Start Date.
(c) Notwithstanding anything to the contrary contained in Section 6.2(b), at any time
following the No-Shop Period Start Date and prior to the time, but not after, the Requisite
Company Vote is obtained, if the Company receives a written Acquisition Proposal from any Person,
which Acquisition Proposal was made or renewed on or after the No-Shop Period Start Date, or a
request from a Person to waive any prohibition with respect to the submission of an Acquisition
Proposal or amendment thereto in effect prior to the date hereof and, in each case, such
Acquisition Proposal or request did not result from any breach (except to the extent immaterial
and unintentional) of this Section 6.2, then, in the case of an Acquisition Proposal, the Company
and its Representatives may contact such Person to clarify the terms and conditions thereof and,
in the case of such a request, the Company Board may waive such prohibition solely with respect
to submission of Acquisition Proposals or amendments thereto in effect prior to the date hereof,
and, in each case, (A) the Company and its Representatives may provide information in response to
a request therefor by such Person if the Company receives from such Person (or has received from
such Person) an executed confidentiality agreement on terms that are no less favorable to the
Company than those contained in the Confidentiality Agreement (it being understood that it will
contain “standstill” provisions no less favorable to the Company than that contained in the
Confidentiality Agreement, except that such confidentiality agreements need not prohibit the
submission of Acquisition Proposals or amendments thereto to the Company Board in confidence),
provided that the Company shall promptly make available to Parent and Merger Sub any
material non-public information concerning the Company or its Subsidiaries that is
44
provided to any Person given such access which was not previously made available to Parent
or Merger Sub, (B) the Company and its Representatives may engage or participate in any
discussions or negotiations with such Person and (C) after having complied with Section 6.2(e),
the Company and the Company Board may adopt, approve or recommend or propose to adopt, approve or
recommend (publicly or otherwise) such an Acquisition Proposal, if and only if (x) prior to
taking any action described in clause (A), (B) or (C) above, the Company Board determines in good
faith after consultation with its outside financial advisor and outside legal counsel that
failure to take such action would likely be inconsistent with the directors’ fiduciary duties
under applicable Law, (y) in each such case referred to in clause (A) or (B) above in the case of
an Acquisition Proposal, the Company Board determines in good faith based on the information then
available and after consultation with its outside financial advisor and outside legal counsel
that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be
expected to result in a Superior Proposal and (z) in each such case referred to in
clause (C) above, the Company Board determines in good faith (after consultation with its outside
financial advisor and outside legal counsel) that such Acquisition Proposal is a Superior
Proposal.
(d) For purposes of this Agreement:
“Acquisition Proposal” means (i) any proposal or offer with respect to a merger, joint
venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization,
reorganization, share exchange, business combination or similar transaction or series of
transactions involving more than 20% of the total voting power of the capital stock, or more than
20% of the consolidated assets, of the Company or (ii) any other proposal or offer which, if
consummated, would result in a direct or indirect acquisition of more than 20% of the total voting
power of the capital stock, or more than 20% of the consolidated assets, of the Company, in one
transaction or a series of transactions, in each case other than the transactions contemplated by
this Agreement.
“Superior Proposal” means a bona fide Acquisition Proposal involving more than 50% of
the total voting power of the capital stock, or more than 50% of the consolidated assets, of the
Company that the Company Board has determined in its good faith judgment, after consultation with
its outside financial advisor and outside legal counsel, (i) is reasonably likely to be consummated
in accordance with its terms, taking into account all legal, regulatory, financial, financing,
timing and other aspects of the proposal that the Company Board deems relevant and the Person
making the proposal, and (ii) if consummated, would result in a transaction more favorable to the
Company’s stockholders from a financial point of view than the transaction contemplated by this
Agreement (including any changes to the terms of this Agreement proposed by Parent in response to
such proposal or otherwise).
(e) Except as set forth in this Section 6.2(e), the Company Board shall not:
(i) fail to make the Company Recommendation with respect to the Merger, withhold,
withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify
or modify), in a manner adverse to Parent, the Company Recommendation with respect to the
Merger or fail to include the Company
45
Recommendation in the Proxy Statement, or adopt, approve or recommend to propose to
adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal;
(ii) take formal action or make any recommendation or public statement in connection
with a tender offer or exchange offer other than a recommendation against such offer or a
“stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the
Exchange Act (any of the actions described in the foregoing clause (i) or this clause (ii)
being referred to as a “Company Adverse Recommendation Change”);
(iii) cause or permit the Company to enter into any acquisition agreement, merger
agreement or similar definitive agreement or a letter of intent or agreement in principle
with respect thereto (other than a confidentiality agreement referred to in
Section 6.2(a) or Section 6.2(c)) (an “Alternative Acquisition Agreement”) relating
to any Acquisition Proposal; or
(iv) take any action pursuant to Section 8.3(a).
Notwithstanding anything to the contrary set forth in this Agreement, prior to, but not on or
after, the time the Requisite Company Vote is obtained: the Company Board may withhold, withdraw,
qualify or modify (or publicly propose to withhold, withdraw, qualify or modify) the Company
Recommendation or fail to include the Company Recommendation in the Proxy Statement (in each case,
whether or not related to a Superior Proposal or Acquisition Proposal), or approve, recommend or
otherwise declare advisable any Superior Proposal made or received after the date hereof, if and
only if, prior to taking such action the Company Board determines in good faith, after consultation
with its outside financial advisor and outside legal counsel, that failure to do so would likely be
inconsistent with its fiduciary duties under applicable Law and, if such action or failure to act
by the Company Board is related to an Acquisition Proposal, that such Acquisition Proposal
constitutes a Superior Proposal (such action or failure to act by the Company Board, a “Change
of Recommendation”) and, in the event of a Change of Recommendation, the Company Board may also
take action pursuant to Section 8.3(a) of this Agreement in connection with accepting a Superior
Proposal as contemplated herein; provided that prior to any Change in Recommendation or
action pursuant to Section 8.3(a) of this Agreement:
(A) the Company shall have provided prior written notice to Parent and Merger Sub, at least
four business days in advance, of its intention to effect a Change of Recommendation or to take
action pursuant to Section 8.3(a), which notice, if concerning an intended Change of Recommendation
that is the result of a Superior Proposal, shall specify the identity of the party making such
Superior Proposal and the material terms thereof and shall include a copy of the proposed
transaction documents with the party making such proposal;
(B) after providing such notice and prior to effecting such Change of Recommendation or taking
such action pursuant to Section 8.3(a), the Company shall, and shall cause its Representatives to,
negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to
negotiate) to make such adjustments in the terms and conditions of this Agreement as would permit
the Company not to effect a Change of Recommendation; and
46
(C) the Company Board of Directors shall have considered in good faith any changes to this
Agreement, the Financing Letters and the Limited Guarantee offered in writing by Parent in a manner
that would form a binding contract if accepted by the Company and shall have determined, after
consultation with its outside financial advisor and outside legal counsel, that (1) failure to
effect the Change of Recommendation would likely be inconsistent with its fiduciary duties under
applicable Law and (2) if the intended Change of Recommendation is the result of a Superior
Proposal, the Superior Proposal would continue to constitute a Superior Proposal even if such
changes were to be given effect;
provided that, if the intended Change of Recommendation is the result of a Superior
Proposal, in the event of any material revisions to such Superior Proposal, the Company shall be
required to deliver a new written notice to Parent and Merger Sub and to comply with the
requirements of this Section 6.2(e) with respect to such new written notice, except that the
deadline for such new written notice shall be reduced to two business days before the Change of
Recommendation or action pursuant to Section 8.3(a) (rather than the four business days otherwise
contemplated by this Section 6.2(e)). None of the Company Board, any committee thereof or the
Company itself shall enter into any binding agreement with any Person to limit or not give prior
notice to Parent and Merger Sub of its intention to effect a Change of Recommendation or to
terminate this Agreement, in each case, in light of a Superior Proposal.
(f) Nothing contained in this Section 6.2 shall be deemed to prohibit the Company or the
Company Board or any committee thereof from (i) complying with its disclosure obligations under
U.S. federal or state Law with regard to an Acquisition Proposal, including taking and disclosing
to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act
(or any similar communication to stockholders), or (ii) making any “stop, look and listen”
communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act
(or any similar communications to the stockholders of the Company); provided, that any
Change of Recommendation only may be made in accordance with Section 6.2(e).
(g) From and after the No-Shop Period Start Date, the Company agrees that it will promptly
(and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with
respect to an Acquisition Proposal are received by, any non public information is requested from,
or any discussions or negotiations are sought to be initiated or continued with, it or any of its
Representatives including, in connection with such notice, the identity of the person or group of
persons making such offer or proposal (except to the extent disclosure of such identity would
breach a confidentiality obligation in effect prior to the execution of this Agreement), a
written summary of the material terms and conditions of any proposals or offers that are not made
in writing and copies of any requests, proposals or offers, including proposed agreements, of
proposals or offers that are made in writing. From and after the No-Shop Period Start Date, the
Company) shall keep Parent reasonably informed, on a prompt basis (and, in any event, within
forty-eight (48) hours), of the status and terms of any proposals or offers (including any
amendments thereto) and the status of any discussions, negotiations or developments, including
any change in the Company’s intentions as previously notified. The Company agrees that neither
it nor its Subsidiaries will enter into
47
any confidentiality agreement with any Person subsequent to the date hereof that prohibits
the Company from providing any information to Parent in accordance with this Section 6.2.
6.3. Proxy Statement.
(a) The Company shall prepare and file with the SEC, as promptly as practicable following
the date hereof (and, in any event within 20 business days after the date of this Agreement), a
proxy statement in preliminary form relating to the Stockholders Meeting (such proxy statement,
including any amendment or supplement thereto, the “Proxy Statement”). The Company
agrees, as to itself and its Subsidiaries, that, at the date of mailing to stockholders of the
Company and at the time of the Stockholders Meeting, (i) the Proxy Statement will comply in all
material respects with the applicable provisions of the Exchange Act and the rules and
regulations thereunder and (ii) none of the information supplied by it or any of its Subsidiaries
for inclusion or incorporation by reference in the Proxy Statement will 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.
(b) The Company shall promptly notify Parent of the receipt of all comments of the SEC with
respect to the Proxy Statement and of any request by the SEC for any amendment or supplement
thereto or for additional information and shall promptly provide to Parent copies of all
correspondence between the Company and/or any of its Representatives and the SEC with respect to
the Proxy Statement. The Company shall use its reasonable best efforts (with the assistance of
Parent) to promptly provide responses to the SEC with respect to all comments received on the
Proxy Statement from the SEC and the Company shall cause the definitive Proxy Statement to be
mailed promptly after the date the SEC staff advises that it has no further comments thereon or
that the Company may commence mailing the Proxy Statement; provided, that the Company
shall not be required to mail the Proxy Statement prior to the No-Shop Period Start Date.
(c) Subject to applicable Law, notwithstanding anything to the contrary stated above, prior
to filing or mailing the Proxy Statement or filing any other required filings (or, in each case,
any amendment or supplement thereto) or responding to any comments of the SEC with respect
thereto, to the fullest extent reasonably practicable the Company shall provide Parent with an
opportunity to review and comment on such document or response and shall in good faith consider
for inclusion in such document or response comments reasonably proposed by Parent.
6.4. Stockholders Meeting. Unless this Agreement has been terminated pursuant
to Article VIII, the Company will take, in accordance with applicable Law and its certificate of
incorporation and bylaws and the rules of the NYSE, all action necessary to convene a meeting of
holders of Shares (the “Stockholders Meeting”) as promptly as practicable after the date of
mailing of the Proxy Statement for the purpose of obtaining the Requisite Company Vote; provided,
however, for the avoidance of doubt, the Company may postpone or adjourn the Stockholders Meeting
solely (i) with the consent of Parent; (ii) due to the absence of a quorum; (iii) after
consultation with Parent and with Parent’s prior written consent (not to be unreasonably
withheld, delayed or conditioned), to allow reasonable
additional time for the filing
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and mailing of any supplemental or amended disclosure
which the Company Board has determined in good faith after consultation with outside legal
counsel is necessary under applicable Law and for such supplemental or amended disclosure to be
disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting; or
(iv) if the Company has provided a written notice to Parent and Merger Sub pursuant to
Section 6.2(e)(A) or the proviso immediately following Section 6.2(e)(C) hereof and the time
period contemplated by Section 6.2(e)(A) or such proviso with respect to such notice has not yet
expired. Subject to Section 6.2 and the last sentence of this Section 6.4, the Company Board
shall recommend such adoption and shall use its reasonable best efforts to solicit from its
stockholders proxies giving the Requisite Company Vote and to take all other action reasonably
necessary or advisable to secure the vote or consent of the stockholders of the Company required
by the Company charter documents, the rules of the NYSE and the DGCL. Notwithstanding anything
to the contrary in this Agreement, unless this Agreement has been terminated pursuant to Article
VIII, if, after the No-Shop Period Start Date, the Company Board shall have withheld, withdrawn,
qualified or modified the Company Recommendation, issued a Company Adverse Recommendation Change
or made a Change in Recommendation, the Company shall nonetheless submit this Agreement to its
stockholders at the Stockholders Meeting.
6.5. Filings; Other Actions; Notification.
(a) Cooperation. Subject to the terms and conditions set forth in this Agreement,
the Company and Parent shall cooperate with each other and use (and shall cause their respective
Subsidiaries to use) their respective reasonable best efforts to take or cause to be taken all
actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its
part under this Agreement and applicable Laws to consummate and make effective the Merger and the
other transactions contemplated by this Agreement as soon as practicable, including preparing and
filing as promptly as practicable all documentation to effect all necessary notices, reports and
other filings and to obtain as promptly as practicable all consents, registrations, approvals,
permits and authorizations necessary or advisable to be obtained from any third party and/or any
Governmental Entity in order to consummate the Merger or any of the other transactions
contemplated by this Agreement, including under the HSR Act and any other applicable Antitrust
Law, provided, however, that without the consent of Parent nothing in this
Agreement shall require either Parent or the Surviving Corporation, or their respective
subsidiaries or Affiliates, to sell, hold separate or otherwise dispose of any assets or
business, or any interest in any of their respective Subsidiaries, Affiliates or joint ventures,
in whole or in part, or to conduct any aspect of their business in a specified manner, or to
permit the sale, holding separate or other disposition of any assets or business, in whole or in
part, or to agree to take any of the foregoing actions, or to agree to any condition or enter
into any agreement to obtain any such consent, registration, approval, permit or authorization
that in the judgment of Parent would be adverse to Parent or the Surviving Corporation. In
furtherance of the foregoing, the Company shall be required to pay prior to the Effective Time up
to an aggregate amount of $1 million in respect of any fees, penalties or other consideration
that the Company or any Subsidiary of the Company is legally required to pay to any third party
to obtain such party’s consent to or approval of the Merger; and the Company shall be required to
pay amounts in excess of the foregoing $1 million threshold for the foregoing purposes to the
extent that Parent provides to the Company or its applicable
49
Subsidiary in advance (by wire
transfer of immediately funds) the necessary funds for such
excess amounts. Parent and the Company each shall file the initial premerger notifications
with respect to this Agreement and the transactions contemplated herein required under the HSR
Act (which filing, including the exhibits thereto, need not be shared or otherwise disclosed to
the other party, except to outside counsel of the other party to the extent reasonably necessary
or advisable to help facilitate completion of filing requirements) no later than 15 business days
after the date of this Agreement. Unless otherwise agreed, each of the Company and Parent will
request early termination of the waiting period with respect to the Merger under the HSR Act and
any other applicable Antitrust Law. Neither Parent nor the Company will withdraw its initial
filing under the HSR Act nor refile it unless the other party has consented in advance to such
withdrawal and refiling. Subject to applicable Laws relating to the exchange of information,
Parent and the Company shall have the right to review in advance and, to the fullest extent
reasonably practicable, each will consult with the other on and consider in good faith the views
of the other in connection with, all of the information relating to Parent or the Company, as the
case may be, and any of their respective Subsidiaries, that appears in any filing made with, or
written materials submitted to, any third party and/or any Governmental Entity in connection with
the Merger and the other transactions contemplated by this Agreement (including the Proxy
Statement). In exercising the foregoing rights, each of the Company and Parent shall act
reasonably and as promptly as practicable. For purposes of this Agreement, “Antitrust
Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal
Trade Commission Act, as amended, Foreign Antitrust Laws, and all other Laws that are designed or
intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization
or restraint of trade or lessening of competition through merger or acquisition. For purposes of
this Agreement, “reasonable best efforts,” “commercially reasonable efforts” or any substantially
similar undertakings shall not require Parent or Merger Sub to (x) pay (or agree to pay) more for
the Debt Financing (whether in interest rate, fees or otherwise) than the terms set forth in the
Debt Commitment Letter and any fee letter entered into by Parent and/or Merger Sub in connection
with such Debt Commitment Letter (including giving effect to any increase in interest rate, fees
or otherwise resulting from any lender flex provisions contained in such fee letter), (y) seek
more capital than is committed in the Equity Financing Letter or (z) waive any condition or agree
to any changes to the Financing Letters.
(b) Information. Subject to applicable Laws, the Company and Parent each shall,
upon request by the other, furnish the other with all information concerning itself, its
Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably
necessary or advisable in connection with the Proxy Statement or any other statement, filing,
notice or application made by or on behalf of Parent, the Company or any of their respective
Subsidiaries to any third party and/or any Governmental Entity in connection with the Merger and
the transactions contemplated by this Agreement, including under the HSR Act and any other
applicable Antitrust Law (which filing, including the exhibits thereto, need not be shared or
otherwise disclosed to the other party except to the outside counsel of the other party to the
extent reasonably necessary or advisable to help facilitate completion of filing requirements).
(c) Status. Subject to applicable Laws and the instructions of any Governmental
Entity, to the fullest extent reasonably practicable, the Company and Parent
50
each shall keep the
other apprised of the status of matters relating to completion of the
transactions contemplated hereby, including promptly furnishing the other with copies of
notices or other communications received by Parent or the Company, as the case may be, or any of
their respective Subsidiaries, from any third party and/or any Governmental Entity with respect
to the Merger and the other transactions contemplated by this Agreement. To the fullest extent
reasonably practicable, neither the Company nor Parent shall permit any of its officers or any
other Representatives to participate in any meeting with any Governmental Entity in respect of
any filings, investigation or other inquiry with respect to the Merger and the other transactions
contemplated by this Agreement unless it consults with the other party in advance and, to the
extent permitted by such Governmental Entity, gives the other party the opportunity to attend and
participate thereat.
(d) Antitrust Matters. Subject to the terms and conditions set forth in this
Agreement, without limiting the generality of the other undertakings and limitations on
undertakings pursuant to this Section 6.5 (including, for the avoidance of doubt, the “provided
that” limitations on required actions contained in Subsection 6.5(a)), each of the Company (in
the case of Subsections 6.5(d)(i) and (iii) set forth below) and Parent (in all cases set forth
below) agrees to take or cause to be taken the following actions:
(i) the prompt provision to each and every federal, state, local or foreign court or
Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Law (a
“Governmental Antitrust Entity”) of non-privileged information and documents that
are necessary, proper or advisable to permit consummation of the transactions contemplated
by this Agreement;
(ii) the prompt use of its reasonable best efforts to avoid the entry or enactment of
any permanent, preliminary or temporary injunction or other order, decree, decision,
determination, judgment, investigation or Law that would delay, restrain, prevent, enjoin or
otherwise prohibit consummation of the transactions contemplated by this Agreement, if such
action should be reasonably necessary or advisable to avoid, prevent, eliminate or remove
the actual, anticipated or threatened (x) commencement of any investigation or proceeding in
any forum or (y) issuance or enactment of any order, decree, decision, determination,
judgment or Law that would materially delay, restrain, prevent, enjoin or otherwise prohibit
consummation of the Merger by any Governmental Entity; and
(iii) the prompt use of its reasonable best efforts to take, in the event that any
permanent, preliminary or temporary injunction, decision, order, judgment, determination,
decree or Law is entered, issued or enacted, or becomes reasonably foreseeable to be
entered, issued or enacted, in any proceeding, review or inquiry of any kind that would make
consummation of the Merger in accordance with the terms of this Agreement unlawful or that
would materially delay, restrain, prevent, enjoin or otherwise prohibit consummation of the
Merger or the other transactions contemplated by this Agreement, any and all steps
(including the appeal thereof) necessary to resist, vacate, modify, reverse, suspend,
prevent, eliminate, avoid or remove such actual, anticipated or threatened injunction,
decision, order, judgment, determination, decree or enactment so
51
as to permit such consummation on a schedule as close as possible to that contemplated
by this Agreement.
(e) Facility Clearances. The Company shall use its reasonable best efforts, and
Parent shall fully cooperate, to deliver to the United States Defense Security Service
(“DSS”) as soon as possible within 30 days of the date hereof, a completed Certificate
Pertaining to Foreign Interests, including all supporting documentation, for the purposes of
obtaining DSS’s agreement that the acquiring fund is not under foreign ownership, control and
influence to such an extent that DSS will require a mitigation action plan as set forth in
National Industrial Security Program Operating Manual 2-303, other than a Board Resolution as
described in 2-303a, upon the acquisition in order for the Company to maintain its present
facility security clearances.
6.6. Access and Reports.
(a) Subject to applicable Law, upon reasonable notice, the Company shall (and shall cause
its Subsidiaries to) afford to the officers and other authorized Representatives of Parent,
potential sources of capital and any rating agencies and prospective lenders and investors
reasonable access, during normal business hours throughout the period prior to the Effective
Time, to its employees, properties, books, contracts, personnel files and records and, during
such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent
all information concerning its business, properties and personnel as may reasonably be requested;
provided that no investigation pursuant to this Section 6.6 shall affect or be deemed to modify
any representation or warranty made by the Company herein; and provided, further, that the
foregoing shall not require the Company (i) to permit any inspection, or to disclose any
information, that in the reasonable judgment of the Company, would result in the disclosure of
any trade secrets of third parties or violate any of its obligations with respect to
confidentiality if the Company shall have used reasonable best efforts to obtain the consent of
such third party to such inspection or disclosure, (ii) to disclose any information of the
Company or any of its Subsidiaries that would, in the reasonable judgment of the Company, waive
the protection of attorney-client privilege if the Company shall have used reasonable best
efforts to disclose such information in a way that would not waive such privilege, or (iii) to
disclose any sensitive or personal information that would expose the Company to the risk of
liability. Without limiting the generality of this Section 6.6, from the date of this Agreement
until the Effective Time (or the termination of this Agreement in accordance with its terms), the
Company will furnish to Parent promptly after becoming available, monthly financial statements
including an unaudited balance sheet, income statement and statement of cash flows for each month
through the Closing Date as well as any update of its outlook for the quarter or the balance of
the fiscal year as it may prepare for management’s internal use. All such information shall be
governed by the terms of the Confidentiality Agreement; provided, that notwithstanding the terms
of the Confidentiality Agreement, Parent may provide such information to potential sources of
capital and to rating agencies and prospective lenders and investors during syndication of the
Available Financing subject to the execution of customary confidentiality agreements with such
Persons regarding such information, with the Company being named as an express third party
beneficiary with rights of enforcement under such confidentiality agreements.
52
(b) The Company shall give prompt notice to Parent, and Parent shall give prompt notice to
the Company, (i) of any notice or other communication received by such party from any
Governmental Entity in connection with the transactions contemplated by this Agreement or from
any Person alleging that the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement, if the subject matter of such communication or the
failure of such party to obtain such consent could be material to the Company, the Surviving
Corporation or Parent, (ii) of any actions, suits, claims, investigations or proceedings
commenced or, to such party’s knowledge, threatened against, relating to or otherwise affecting
such party of any of its Subsidiaries which relate to the transactions contemplated by this
Agreement, and (iii) if such party becomes aware of any facts or circumstances that such party
believes do, or with the passage of time are reasonably likely to, constitute a material breach
of this Agreement by the other party.
6.7. Stock Exchange De-listing. Parent shall cause the Company’s securities to
be de-listed from the NYSE and de-registered under the Exchange Act as soon as practicable
following the Effective Time.
6.8. Publicity. The initial press release regarding the Merger shall be a joint
press release and thereafter (unless and until a Change of Recommendation has occurred or in
connection with Section 6.2(e)) the Company and Parent each shall consult with each other prior
to issuing any press releases or otherwise making public announcements with respect to the Merger
and the other transactions contemplated by this Agreement and prior to making any filings with
any third party and/or any Governmental Entity (including any national securities exchange or
interdealer quotation service) with respect thereto, except as may be required by Law or by
obligations pursuant to any listing agreement with or rules of any national securities exchange
or interdealer quotation service or by the request of any Governmental Entity.
6.9. Employee Benefits
(a) The Surviving Corporation shall, during the period commencing at the Effective Time and
ending on the 12-month anniversary of the Effective Time, provide to each person who was employed
by the Company or any of its Subsidiaries immediately prior to the Closing (other than any
employees covered by a collective bargaining agreement) compensation and employee benefits that
are no less favorable, in the aggregate, than those provided to such employee by the Company and
its Subsidiaries immediately prior to the Closing so long as such person continues to be employed
by the Surviving Corporation or any of its Subsidiaries during such 12-month period (without any
obligation on the part of the Surviving Corporation to maintain the employment of any such person
at any time following the Closing); and, for any such employees covered by a collective
bargaining agreement, subject, in any case, to any such collective bargaining agreement that
shall be in effect following the Closing.
(b) The Surviving Corporation will cause any employee benefit plans which the employees of
the Company and its Subsidiaries are entitled to participate in to take into account for purposes
of eligibility and vesting and, solely for purposes of any vacation or severance plan, level of
benefits and benefit accrual thereunder, service by employees of the Company and its Subsidiaries
as if such service were with the Surviving Corporation, to the
53
same extent such service was credited under a comparable plan of the Company (except to the
extent it would result in a duplication of benefits).
(c) To the extent permitted under applicable Law, with respect to any employee benefit plans
maintained for the benefit of the employees, the Surviving Corporation will (i) cause there to be
waived any eligibility requirements or pre-existing condition limitations or waiting period
requirements to the same extent waived under comparable plans of the Company and its Subsidiaries
and (ii) give effect, in determining any deductible, co-insurance and maximum out-of-pocket
limitations, amounts paid by such employees during the calendar year in which Effective Time
occurs under similar plans maintained by the Company and its Subsidiaries.
(d) The Surviving Corporation shall honor, fulfill and discharge the Company’s and its
Subsidiaries’ obligations under (i) all employee benefit obligations to current and former
directors, officers and employees of the Company accrued as of the Effective Time and (ii) all
employee severance plans in existence as of the date hereof (to the extent copies of which have
been provided or made available to Parent prior to the date hereof) or after the date hereof in
accordance with Section 6.1 and all employment or severance agreements entered into prior to the
date hereof (to the extent copies of which have been provided or made available to Parent prior
to the date hereof) or after the date hereof in accordance with Section 6.1.
(e) Notwithstanding anything contained in the Agreement to the contrary, no provision of
this Agreement is intended to, or does, (i) prohibit the Surviving Corporation or its Affiliates
from amending or terminating any Benefit Plan in accordance with its terms and applicable Law,
(ii) require the Surviving Corporation to keep any person employed for any period of time, or
(iii) constitute the establishment or adoption of, or amendment to, any Benefit Plan, and no
person participating in any such Benefit Plan maintained by either the Company or Parent shall
have any claim or cause of action, under ERISA or otherwise, in respect of any provisions of this
Agreement as it relates to any such Benefit Plan or otherwise.
6.10. Expenses. The Surviving Corporation shall pay all charges and expenses,
including those of the Paying Agent, in connection with the transactions contemplated in
Article IV. Except as set forth in the immediately preceding sentence or as otherwise provided
in Section 8.5, whether or not the Merger is consummated, all costs and expenses incurred in
connection with this Agreement and the Merger and the other transactions contemplated by this
Agreement shall be paid by the party incurring such expense, except (a) Parent shall reimburse
the Company for 50% of the expenses incurred by the Company in connection with the filing fee for
the Proxy Statement and printing and mailing the Proxy Statement, (b) Parent’s reimbursement
obligations pursuant to Section 6.14(b)(iii) and 6.17 and (c) Parent’s indemnification
obligations pursuant to Sections 6.14(b)(iii) and 6.17. Any amounts that may be owed by Parent
for reimbursement pursuant to clauses (a) and (b) of the preceding sentence shall be payable in
one lump-sum following final calculation and documentation (in a manner reasonably satisfactory
to Parent) of the total amount of such fees and expenses incurred.
54
6.11. Indemnification; Directors’ and Officers’ Insurance.
(a) From and after the Effective Time, each of Parent and the Surviving Corporation agrees
that it will indemnify and hold harmless, to the fullest extent permitted under applicable Law
(and Parent and the Surviving Corporation shall also advance expenses as incurred to the fullest
extent permitted under applicable Law), each present and former director and officer of the
Company (collectively, the “Indemnified Parties”) against any costs or expenses
(including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities
(collectively, “Costs”) incurred in connection with any claim, action, suit, proceeding
or investigation, whether civil, criminal, administrative or investigative, arising out of or
related to such Indemnified Parties’ service as a director or officer of the Company or its
Subsidiaries or services performed by such persons at the request of the Company or its
Subsidiaries at or prior to the Effective Time, whether asserted or claimed prior to, at or after
the Effective Time, including, for the avoidance of doubt, in connection with (i) the
transactions contemplated by this Agreement and (ii) actions to enforce this provision or any
other indemnification or advancement right of any Indemnified Party.
(b) Prior to the Effective Time, the Company shall and, if the Company is unable to, Parent
shall cause the Surviving Corporation, as of the Effective Time, to obtain and fully pay the
premium for the extension of (i) the directors’ and officers’ liability coverage of the Company’s
existing directors’ and officers’ insurance policies, and (ii) the Company’s existing fiduciary
liability insurance policies, in each case for a claims reporting or discovery period of at least
six years from and after the Effective Time from an insurance carrier with the same or better
credit rating as the Company’s current insurance carrier with respect to directors’ and officers’
liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”)
with terms, conditions, retentions and limits of liability that are at least as favorable as the
Company’s existing policies with respect to any actual or alleged error, misstatement, misleading
statement, act, omission, neglect, breach of duty or any matter claimed against a director or
officer of the Company or any of its Subsidiaries by reason of him or her serving in such
capacity that existed or occurred at or prior to the Effective Time (including in connection with
this Agreement or the transactions or actions contemplated hereby); provided,
however, that in no event shall the Company or the Surviving Corporation expend for such
policies pursuant to this sentence an annual premium amount in excess of 300% of the annual
premiums currently paid by the Company for such insurance. If the Company and the Surviving
Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective
Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to,
continue to maintain in effect for a period of at least six years from and after the Effective
Time the D&O Insurance in place as of the date hereof with terms, conditions, retentions and
limits of liability that are at least as favorable as provided in the Company’s existing policies
as of the date hereof, or the Surviving Corporation shall, and Parent shall cause the Surviving
Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such
six-year period with terms, conditions, retentions and limits of liability that are at least as
favorable as provided in the Company’s existing policies as of the date hereof; provided,
however, that in no event shall Parent or the Surviving Corporation be required to expend
for such policies pursuant to this sentence an annual premium amount in excess of 300% of the
annual premiums currently paid by the Company for such insurance; and provided,
further, that if the annual premiums of such insurance coverage exceed such amount, the
Surviving Corporation shall, and Parent shall
55
cause the Surviving Corporation to, obtain a policy with the greatest coverage available for
a cost not exceeding such amount.
(c) If Parent or the Surviving Corporation or any of their respective successors or assigns
shall (i) consolidate with or merge into any other corporation or entity and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or (ii) transfer
all or substantially all of its properties and assets to any individual, corporation or other
entity, then, and in each such case, proper provisions shall be made so that the successors and
assigns of Parent or the Surviving Corporation shall assume all of the obligations set forth in
this Section 6.11.
(d) The provisions of this Section 6.11 are intended to be for the benefit of, and shall be
enforceable by, each of the Indemnified Parties.
(e) The rights of the Indemnified Parties under this Section 6.11 shall be in addition to
any rights such Indemnified Parties may have under the certificate of incorporation or bylaws or
comparable governing documents of the Company or any of its Subsidiaries, or under any applicable
Contracts or Laws. All rights to indemnification and exculpation from liabilities for acts or
omissions occurring at or prior to the Effective Time and rights to advancement of expenses
relating thereto now existing in favor of any Indemnified Party as provided in the certificate of
incorporation or bylaws of the Company or of any Subsidiary of the Company or any indemnification
agreement between such Indemnified Party and the Company or any of its Subsidiaries shall survive
the Merger and shall not be amended, repealed or otherwise modified in any manner that would
adversely affect any right thereunder of any such Indemnified Party.
6.12. Takeover Statutes. If any Takeover Statute is or may become applicable to the
Merger or the other transactions contemplated by this Agreement, the Company and the Company
Board shall grant such approvals and take such actions as are necessary so that such transactions
may be consummated as promptly as practicable on the terms contemplated by this Agreement and
otherwise act to eliminate or minimize the effects of such statute or regulation on such
transactions.
6.13. Parent Vote. Parent shall vote (or consent with respect to) or cause to be
voted (or a consent to be given with respect to) any Shares and any shares of common stock of
Merger Sub beneficially owned by it or any of its Subsidiaries or with respect to which it or any
of its Subsidiaries has the power (by agreement, proxy or otherwise) to cause to be voted (or to
provide a consent), in favor of the adoption of this Agreement at any meeting of stockholders of
the Company or Merger Sub, respectively, at which this Agreement shall be submitted for adoption
and at all adjournments or postponements thereof (or, if applicable, by any action of
stockholders of either the Company or Merger Sub by consent in lieu of a meeting).
6.14. Financing.
(a) Equity Financing.
56
(i) Subject to the terms and conditions of this Agreement and the applicable terms and
conditions of the Equity Financing Letter, each of Parent and Merger Sub shall take (or
cause to be taken) all actions, and do (or cause to be done) all things, necessary, proper
or advisable to (i) obtain, the Equity Financing contemplated by the Equity Financing
Letter, (ii) maintain in effect the Equity Financing Letter, (iii) satisfy on a timely basis
all conditions applicable to Parent and Merger Sub set forth in the Equity Financing Letter
that are within its control, (iv) consummate the Equity Financing contemplated by the Equity
Financing Letter at or prior to the Closing, and (v) fully enforce the Guarantor’s
obligations (and the rights of Parent and Merger Sub) under the Equity Financing Letter,
including (at the request of the Company and subject to Section 9.5(c)) by filing one or
more lawsuits against the Guarantor to fully enforce the Guarantor’s obligations (and the
rights of Parent and Merger Sub) thereunder or assigning the rights of Parent and Merger Sub
to bring such lawsuits to the Company so as to enable the Company to file such lawsuits
against the Guarantor on behalf of Parent and Merger Sub.
(ii) Neither Parent nor Merger Sub shall amend, alter, or waive, or agree to amend,
alter or waive (in any case whether by action or inaction), any term of the Equity Financing
Letter without the prior written consent of the Company. Parent shall promptly (and in any
event within one business day) notify the Company of (i) the expiration or termination (or
attempted or purported termination, whether or not valid) of the Equity Financing Letter, or
(ii) any refusal by the Guarantor to provide or any stated intent by the Guarantor to refuse
to provide the full financing contemplated by the Equity Financing Letter.
(b) Debt Financing.
(i) Subject to the terms and conditions of this Agreement, each of Parent and Merger
Sub shall use its respective commercially reasonable efforts to obtain the Debt Financing on
the terms and conditions set forth in the Debt Commitment Letter,
after giving effect to the
“market flex” terms in the fee letter referred to therein
(or on terms which would not be reasonably expected to delay or prevent the Closing or
make the funding of the Debt Financing less likely to occur), and use its
respective commercially reasonable efforts to (i) maintain in effect the Debt Commitment
Letter and negotiate definitive agreements with respect to the Debt Commitment Letter on the
terms and conditions set forth in the Debt Commitment Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or
make the funding of the Debt Financing less likely to occur), (ii)
satisfy on a timely basis all conditions applicable to Parent and Merger Sub set forth in
such definitive agreements that are within their reasonable control, and (iii) consummate
the Debt Financing contemplated by the Debt Commitment Letter at or prior to the Closing.
In the event that all conditions in the Debt Commitment Letter (other than the availability
of funding of any of the Equity Financing) have been satisfied or, upon funding will be
satisfied, each of Parent and Merger Sub shall use its commercially reasonable efforts to
cause such lenders and the other Persons providing such Debt Financing to fund on the
Closing Date the Debt Financing required to consummate the transactions contemplated by this
Agreement and otherwise enforce its rights under the Debt Commitment Letter.
57
(ii) Neither Parent nor Merger Sub shall amend, alter, or waive, or agree to amend,
alter or waive (in any case, whether by action or inaction), any term of the Debt Commitment
Letter or any provision of the fee letter referenced in the Debt Commitment Letter (to the
extent any such amendment, alteration, or waiver would reasonably be expected to delay or
prevent the Closing or make the funding of the Debt Financing less likely to occur) without
the prior written consent of the Company if such amendment, alteration or waiver reduces the
aggregate amount of the Debt Financing or amends the conditions precedent to the Debt
Financing in a manner that would reasonably be expected to delay or prevent the Closing or
make the funding of the Debt Financing less likely to occur; provided,
however, that Parent and Merger Sub may replace and/or amend the Debt Commitment
Letter so long as (i) the terms
would not be reasonably expected to delay or prevent the Closing or
make the funding of the Debt Financing less likely to occur
and (ii) the conditions to the Debt Financing set
forth in the Debt Commitment Letter as of the date hereof would not be expanded in a manner
that would reasonably be expected to delay or prevent the Closing; and in any such event,
Parent shall disclose to the Company its intention to obtain such alternative financing,
shall keep the Company informed of the terms thereof and shall deliver to the Company final
drafts of the commitment letter (the “New Debt Commitment Letter”) providing for
such alternative financing. The term “Debt Financing” as used herein shall be deemed to
mean the Debt Financing contemplated by the Debt Commitment Letter to the extent not so
superseded at the time in question and the New Debt Commitment Letter to the extent then in
effect. Parent shall promptly (and in any event within one business day) notify the Company
of the expiration or termination of the Debt Commitment Letter and the New Debt Commitment
Letter (if applicable).
(iii) Prior to the Effective Time, the Company shall (and the Company shall cause each
of its Subsidiaries to) provide, and shall use its commercially reasonable efforts to cause
its Representatives, including legal and accounting Representatives, to provide, in each
case, at Parent’s sole expense (in accordance with the reimbursement provisions below), all
cooperation reasonably requested by Parent or Merger Sub and that is necessary in connection
with arranging and obtaining the Financing or any permitted replacement, amended, modified
or alternative financing (collectively with the Financing, the “Available
Financing”), including (i) assisting with the preparation of offering and syndication
documents and materials, including prospectuses, private placement memoranda, information
memoranda and packages, lender and investor presentations, rating agency presentations, and
similar documents and materials, in connection with the Available Financing (all such
documents and materials, collectively, the “Offering Documents”), (ii) preparing and
furnishing Parent and Merger Sub and the entities that have committed to provide or
otherwise entered into agreements in connection with the Debt Financing or other financings
in connection with the transactions contemplated hereby, including the parties to the Debt
Commitment Letter and any joinder agreements or credit agreements relating thereto
(collectively, the “Financing Sources”) as promptly as practicable with all Required
Information as may be reasonably requested by Parent or Merger Sub to assist in preparation
of the Offering Documents and executing customary authorization and management
representation letters (including, in the case of the public-side version, a representation
to the arranger of the Available Financing that such public-side
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version does not include material non-public information about the Company and its
Subsidiaries) and certificates, (iii) participating in a reasonable number of meetings,
presentations, road shows, due diligence sessions (including bringdown diligence sessions),
drafting sessions and sessions with rating agencies in connection with the Available
Financing, including direct contact between senior management and Representatives of the
Company and its Subsidiaries and Parent’s and Merger Sub’s Financing Sources and potential
lenders and investors in the Available Financing, and obtaining any corporate, credit and
ratings from rating agencies contemplated by the Debt Commitment Letter, (iv) obtaining
comfort letters from accountants and consents from the Company’s independent auditors, (v)
assisting in the preparation of, and executing and delivering, definitive financing
documents, including guarantee and collateral documents, hedging agreements and other
certificates and documents as may be requested by Parent or Merger Sub (including a
certificate of the chief financial officer of the Company and its Subsidiaries with respect
to solvency matters), (vi) facilitating the pledging of collateral for the Available
Financing, including taking commercially reasonable actions necessary to permit the
Financing Sources of the Available Financing to evaluate the Company’s and its Subsidiaries’
real property and current assets, cash management and accounting systems, policies and
procedures for the purpose of establishing collateral arrangements and establishing, as of
the Effective Time, bank and other accounts and blocked account agreements and lockbox
arrangements in connection with the Available Financing, (vii) using commercially reasonable
efforts to obtain such consents, waivers, estoppels, approvals, authorizations and
instruments which may be reasonably requested by Parent or Merger Sub in connection with the
Available Financing and collateral arrangements, including customary payoff letters, lien
releases, instruments of termination or discharge, legal opinions, appraisals, engineering
reports, surveys, title insurance, landlord consents, waivers and access agreements and
(viii) facilitating the consummation of the Available Financing, including cooperating with
Parent and Merger Sub to satisfy the conditions precedent to the Available Financing to the
extent within the control of the Company and its Subsidiaries, and taking all corporate
actions, subject to the occurrence of the Effective Time, reasonably requested by Parent or
Merger Sub to permit the consummation of the Available Financing and to permit the proceeds
thereof to be made available to the Surviving Corporation immediately upon the Effective
Time; provided, however, that notwithstanding the foregoing, no obligations
of the Company, its Subsidiaries or their Representatives under any such agreement,
certificate, document or instrument shall be effective until the Effective Time;
provided, further, that nothing herein shall require such cooperation to the
extent it would interfere unreasonably with the business or operations of the Company or its
Subsidiaries; and provided, further, that neither the Company nor any of its
Subsidiaries shall be required to pay any commitment fee or other fee or payment to obtain
consent or to incur any liability with respect to the Debt Financing prior to the Effective
Time. The Company and each of its Subsidiaries hereby consent to the use of its logos in
connection with the Available Financing, provided that such logos are used solely in
a manner that is not intended to nor reasonably likely to harm or disparage the Company or
its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries. Parent
shall promptly, upon request by the Company, reimburse the Company for all reasonable and
documented out-of-pocket costs and expenses (including reasonable attorneys’ fees)
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incurred by the Company or any of its Subsidiaries in connection with the cooperation
of the Company and its Subsidiaries contemplated by this Section 6.14 and shall indemnify
and hold harmless the Company, its Subsidiaries and their respective Representatives from
and against any and all losses, damages, claims, costs or expenses suffered or incurred by
any of them of any type in connection with the arrangement of any Financing and any
information used in connection therewith except with respect to any information prepared or
provided by the Company or any of its Subsidiaries or any of their respective
Representatives or to the extent such losses, damages, claims, costs or expenses result from
the gross negligence or willful misconduct of the Company, any of its Subsidiaries or their
respective Representatives, and the foregoing obligations shall survive termination of this
Agreement. All material non-public information provided by the Company or any of its
Subsidiaries or any of their Representatives pursuant to this Section 6.14(b)(iii) shall be
kept confidential in accordance with the Confidentiality Agreement, except that Parent and
Merger Sub shall be permitted to disclose such information to the Financing Sources and
other potential sources of capital, rating agencies and prospective lenders and investors
during syndication of the Available Financing subject to the potential sources of capital,
ratings agencies and prospective lenders and investors entering into customary
confidentiality undertakings with respect to such information (including through a notice
and undertaking in a form customarily used in confidential information memoranda for senior
credit facilities).
(iv) Acknowledgement. Parent and Merger Sub acknowledge and agree that the
obtaining of the Financing is not a condition to Closing.
6.15. Rule 16b-3. Prior to the Effective Time, the Company shall take such steps as
may be reasonably requested by any party hereto to cause dispositions of Company equity
securities (including derivative securities) pursuant to the transactions contemplated hereby by
each individual who is a director or officer of the Company to be exempt under Rule 16b-3
promulgated under the Exchange Act.
6.16. Parent and Merger Sub Expenditure. Between the date of this Agreement and the
Closing, Parent and Merger Sub shall not expend funds other than in connection with the
Transactions and the payment of related expenses.
6.17. Debt Tender Offer.
(a) As soon as reasonably practicable after the receipt by the Company of a written request
by Parent (and a reasonable period of time in advance of the anticipated Closing Date, as
reasonably determined by Parent), the Company shall promptly commence (or, at Parent’s choice,
assist Parent or its Affiliates in a third party commencement of) an offer to purchase and
related consent solicitation with respect to all of the outstanding aggregate principal amount of
the then outstanding 9.50% Senior Subordinated Notes due 2013 (the “Notes”) on the terms
and conditions as are reasonably requested by Parent (including amendments to the terms and
provisions of the Indenture as reasonably requested by Parent and reasonably satisfactory to the
Company) (including the related consent solicitation, collectively, the “Debt Tender
Offer”) (and in any event so as to accommodate Parent’s financing with respect to the Merger
and the other transactions provided for herein)
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and Parent shall assist the Company in connection therewith. Promptly following the
expiration date (as such date may be extended from time to time) of the consent solicitation,
assuming the requisite consents are received, the Company shall execute, and shall use
commercially reasonable efforts to cause the Trustee (as defined below) to execute, a
supplemental indenture to the Indenture, dated February 11, 2005 (the “Indenture”), by
and between the DynCorp International LLC, DynCorp Capital Corporation (collectively, the
“Issuers”) and The Bank of New York, as Trustee (the “Trustee”), effectuating the
amendments for which consents were obtained pursuant to the Debt Tender Offer, which supplemental
indenture shall become effective immediately upon the later of (i) acceptance for purchase of
Notes properly tendered and not properly withdrawn in the Debt Tender Offer and (ii) the
Effective Time. The Company shall provide, and shall cause its Subsidiaries to, and shall use
commercially reasonable efforts to cause their respective Representatives to, provide all
cooperation reasonably requested by Parent in connection with the Debt Tender Offer (including
engagement of a dealer manager and a depository agent with respect thereto, in each case
reasonably acceptable to Parent, and delivery of any Officer’s Certificates and Opinions of
Counsel (as such terms are defined in the Indenture) required under the Indenture). The closing
of the Debt Tender Offer shall be conditioned on the occurrence of the Closing, and, without
modifying the applicable obligations of the parties under this Section, the parties shall use
commercially reasonable efforts to cause the Debt Tender Offer to close on the Closing Date
(including by making public announcements extending the expiration date of the Debt Tender Offer
as requested by Parent and by the Company otherwise complying with the time periods required by
Rule 14e-1 under the Exchange Act). Unless otherwise agreed by Parent, concurrent with the
Effective Time, and in accordance with the terms of the Debt Tender Offer, the Company shall
accept for purchase and purchase the Notes (including any premium thereon and any consent
payments applicable thereto) properly tendered and not properly withdrawn in the Debt Tender
Offer. Parent shall promptly, upon request by the Company, reimburse the Company for all
reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees)
incurred by the Company or any of its Subsidiaries in connection with the Debt Tender Offer and
shall indemnify and hold harmless the Company, its Subsidiaries and their respective
Representatives from and against any and all losses, damages, claims, costs and expenses suffered
or incurred by any of them of any type in connection with the Debt Tender Offer (except to the
extent such losses, damages, claims, costs and expenses result from the gross negligence or
willful misconduct of the Company, any of its Subsidiaries or their respective Representatives),
and the foregoing obligations shall survive termination of this Agreement. Notwithstanding
anything to the contrary in this Section 6.17, the Company shall not be obligated to consummate
the Debt Tender Offer unless the Merger has occurred or is occurring concurrently with the
consummation of the Debt Tender Offer and sufficient funds are available from the Financing to
pay all consideration for the purchase of the Notes.
(b) If the required consents have not been received in the Debt Tender Offer, or are not
reasonably likely to be received, in each case, at least 10 business days prior to the Closing
Date (with the number of business days calculated in accordance with Rule 14e-1 of the Exchange
Act) or if Parent determines not to request the commencement of the Debt Tender Offer, then at
Parent’s written request, the Company shall, and shall cause the Issuers to, use commercially
reasonable efforts to promptly take all actions necessary and
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required to effect the satisfaction and discharge of the Notes pursuant to Article 12 of the
Indenture, which satisfaction and discharge shall be effective upon the Closing, and the Company
shall cause the Issuers to concurrently with the Closing (a) give irrevocable instructions to
mail a notice of redemption to holders of the Notes pursuant to Section 3.03 of the Indenture,
(b) deposit in trust of all required funds or Government Securities (as defined in the Indenture)
with respect to such satisfaction and discharge as set forth in Section 12.01(1)(b) of the
Indenture, (c) pay or cause to be paid all other sums payable pursuant to the Indenture, and (d)
deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel in form and substance
satisfactory to the Trustee as to satisfaction of all conditions precedent to such satisfaction
and discharge and as to the other matters set forth in Section 12.01 of the Indenture; and the
Company shall use commercially reasonably efforts to cause the Trustee to acknowledge
satisfaction and discharge of the Indenture in writing and shall furnish a copy of such writing
to the Parent concurrently with the Closing. Notwithstanding anything herein to the contrary,
the Company shall not be obligated to take any action described in this subsection (b) unless the
Company shall have received from Parent the amounts required to deposit with the Trustee to pay
the redemption price for the Notes as required pursuant to Section 12.01 of the Indenture and pay
or cause to be paid all other sums payable pursuant to the Indenture in connection therewith.
6.18. Stockholder Litigation. The Company shall give Parent the opportunity to
participate in the defense or settlement of any stockholder litigation against the Company and/or
its directors arising after the date hereof as a result of the transactions contemplated by this
Agreement, and with respect to any settlement in connection therewith settled solely for monetary
damages not entirely paid for with proceeds of insurance (other than the deductible under
insurance policy(ies) in effect as of the date hereof), no such settlement shall be agreed to
without Parent’s prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.
6.19. Director Resignations. Prior to the Closing, the Company shall deliver to
Parent resignations executed by each director of the Company in office immediately prior to the
Effective Time, which resignations shall be effective at the Effective Time and which
resignations shall not have been revoked.
6.20. Novation.
(a) The Company hereby agrees to cooperate and to provide such reasonable assistance to
Parent and Merger Sub, and Parent and Merger Sub shall cooperate and provide such reasonable
assistance to the Company, as may be reasonably required in the event that any Governmental
Entity requires a novation of any Government Contract.
(b) The Company covenants and agrees that, to the extent that any Government Contract or Bid
requires notification to a Government Entity with respect to the execution of this Agreement
and/or the consummation of the transactions contemplated hereby, the Company shall use
commercially reasonable efforts to make all such contract notifications as promptly as
practicable following the execution of the this Agreement.
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ARTICLE VII
Conditions
7.1. Conditions to Each Party’s Obligation to Effect the Merger. The respective obligation of each party to effect the Merger is subject to the satisfaction
or waiver at or prior to the Effective Time of each of the following conditions:
(a) Stockholder Approval. This Agreement shall have been duly adopted by holders of
Shares constituting the Requisite Company Vote in accordance with applicable Law, the certificate
of incorporation and bylaws of the Company and NYSE rules.
(b) Regulatory Consents. (i) The waiting period applicable to the consummation of
the Merger under the HSR Act shall have expired or been earlier terminated and (ii) all
approvals, consents and consultations required to consummate the Merger pursuant to any Foreign
Antitrust Law or any other Law shall have been obtained or any applicable waiting period
thereunder shall have been terminated or shall have expired, except if failure to obtain such
approval, consent or consultation or failure of such waiting period to terminate or expire would
not, individually or in the aggregate, reasonably be likely to have a material adverse effect on
Parent and its Subsidiaries following the Effective Time and would not subject the Company,
Merger Sub, the Surviving Corporation, Parent or any of their respective Subsidiaries or any
director, officer or employee of any of the foregoing to risk of criminal liability.
(c) Orders. No court or other Governmental Entity of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any Law (including any injunction, whether
temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise
prohibits consummation of the Merger or otherwise makes the consummation of the Merger
illegal (collectively, an “Order”).
7.2. Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the
satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. Disregarding (x) all “Company Material Adverse
Effect” qualifications and other qualifications based on the word “material” contained in such
representations and warranties (it being understood and agreed that the term “Company Material
Adverse Effect” in Section 5.1(f)(ii) shall not constitute a qualification and shall not be
disregarded) and (y) any update of or modification to the Company Disclosure Schedule made or
purported to have been made after the date hereof:
(i) The representations and warranties of the Company set forth in Sections 5.1(b)(i)
and 5.1(f)(ii) shall be true and correct in all respects as of the date of this Agreement
and on and as of the Closing Date with the same force and effect as if
made on and as of such date; provided, that any inaccuracies in the
representations and warranties contained in Section 5.1(b)(i) that do not individually or in
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the aggregate increase the aggregate amount of consideration payable by Parent and/or Merger
Sub under Article IV of this Agreement by more than $1,000,000 shall be disregarded;
(ii) The representations and warranties of the Company set forth in Section 5.1(c) of
this Agreement shall be true and correct in all material respects as of the date of this
Agreement and on and as of the Closing Date with the same force and effect as if made on and
as of such date;
(iii) The representations and warranties of the Company set forth in this Agreement,
excluding the representations and warranties identified in the foregoing clauses (i) and
(ii), shall be true and correct on and as of the Closing Date with the same force and effect
as if made on and as of such date (other than for those representations and warranties that
address matters only as of a particular date, which representations and warranties shall
have been true and correct on and as of such particular date), except for any failure to be
so true and correct which has not had and would not have, individually or in the aggregate,
a Company Material Adverse Effect; and
(iv) Parent shall have received a certificate signed on behalf of the Company by the
chief executive officer or chief financial officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall have performed in
all material respects all obligations required to be performed by it under this Agreement at or
prior to the Closing Date, and Parent shall have received a certificate signed on behalf of the
Company by the chief executive officer or chief financial officer of the Company to such effect.
7.3. Conditions to Obligation of the Company. The obligation of the Company to effect the Merger is also subject to the satisfaction or
waiver by the Company at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and warranties of Parent
and Merger Sub set forth in this Agreement shall be true and correct as of the date of this
Agreement and on and as of the Closing Date with the same force and effect as if made on and as
of such date (other than for those representations and warranties that address matters only as of
a particular date, which representations and warranties shall have been true and correct on and
as of such particular date), except for any failure to be so true and correct that would not,
individually or in the aggregate, be reasonably likely to prevent, materially impair or
materially delay the ability of Parent and Merger Sub to consummate the transactions contemplated
by this Agreement, and the Company shall have received a certificate signed on behalf of Parent
and Merger Sub by a senior executive officer of Parent to such effect.
(b) Performance of Obligations of Parent and Merger Sub. Each of Parent and Merger
Sub shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and the Company shall
have received a certificate signed on behalf of Parent and Merger Sub by a senior executive
officer of Parent to such effect.
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7.4. Frustration of Closing Conditions. None of the Company, Parent or Merger Sub may rely on the failure of any condition set
forth in Section 7.1, 7.2 or 7.3, as the case may be, to be satisfied if such failure was caused by
such party’s failure to use the standard of efforts required from such party to consummate the
Merger and the other transactions contemplated by this Agreement, including as required by and
subject to Sections 6.5 and 6.14.
ARTICLE VIII
Termination
8.1. Termination by Mutual Consent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the
Effective Time, whether before or after the time the Requisite Company Vote is obtained, by mutual
written consent of the Company and Parent by action of their respective boards of directors.
8.2. Termination by Either Parent or the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the
Effective Time by action of either the Parent board of directors or the Company Board if:
(a) the Merger shall not have been consummated by October 11, 2010 (provided, that
if on October 11, 2010 the condition to Closing set forth in Section 7.1(b)(i) shall not have
been satisfied but all other conditions to Closing shall have been satisfied (or in the case of
conditions that by their terms are to be satisfied at the Closing, shall be capable of being
satisfied on October 11, 2010), then, at the election of Parent such date may be extended by up
to three months if Parent provides written notice to the Company on or prior to October 11, 2010)
(October 11, 2010, as such date may be extended in accordance with the proviso above, the
“Termination Date”), whether such date is before or after the time the Requisite Company
Vote is obtained; provided that the right to terminate this Agreement pursuant to this
Section 8.2(a) and Parent’s extension right pursuant to this Section 8.2(a), in each case, shall
not be available if the failure of the Merger to have been consummated on or before October 11,
2010, was primarily due to the failure of the party seeking to terminate or extend this
Agreement, as the case may be, to perform any of its obligations under this Agreement;
(b) the Stockholders Meeting shall have been held and completed and the Requisite Company
Vote shall not have been obtained at such Stockholders Meeting or at any adjournment or
postponement thereof; or
(c) (i) any Law makes the consummation of the Merger illegal or (ii) any Order permanently
restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and
non-appealable (whether before or after the time the Requisite Company Vote is obtained);
provided, that the right to terminate this Agreement pursuant to this
Section 8.2(c) shall not be available to any party if the enactment, issuance, promulgation,
enforcement or of such Law, or entry of such Order, or the Order becoming final and non-
appealable, was primarily due to the failure of such party to perform any of its obligations
under this Agreement.
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8.3. Termination by the Company. This Agreement may be terminated and the Merger may be abandoned by the Company by action
of the Company Board:
(a) at any time prior to the time the Requisite Company Vote is obtained, if (i) the Company
Board authorizes the Company, subject to complying with the terms of this Agreement, to enter
into an Alternative Acquisition Agreement with respect to a Superior Proposal, (ii) immediately
prior to or concurrently with the termination of this Agreement, the Company enters into an
Alternative Acquisition Agreement with respect to a Superior Proposal, and (iii) the Company
immediately prior to or concurrently with such termination pays to Parent in immediately
available funds any fees required to be paid pursuant to Section 8.5; provided,
however, that the Company shall not be entitled to terminate this Agreement pursuant to
this Section 8.3(a) with respect to any Superior Proposal unless the Company has complied in all
respects (other than any breach that was immaterial and unintentional) with the requirements of
Section 6.2;
(b) at any time prior to the Effective Time, whether such date is before or after the time
the Requisite Company Vote is obtained, if there has been a breach of any representation,
warranty, covenant or agreement made by Parent or Merger Sub in this Agreement, which breach
(i) would give rise to the failure of a condition set forth in Section 7.3(a) or 7.3(b) and
(ii) (x) cannot be cured by Parent or Merger Sub by the Termination Date or (y) if capable of
being cured, shall not have been cured (A) within 30 calendar days following receipt of written
notice from the Company of such breach or (B) any shorter period of time that remains between the
date the Company provides written notice of such breach and the Termination Date;
provided that, the Company shall not have the right to terminate this Agreement pursuant
to this Section 8.3(b) if it is then in breach of any representation, warranties, covenants or
other agreements hereunder that would result in the closing conditions set forth in Sections
7.2(a) or 7.2(b) not being satisfied; or
(c) only on or after the first business day immediately preceding the Termination Date,
whether such date is before or after the time the Requisite Company Vote is obtained, if (A) the
conditions set forth in Sections 7.1 and 7.2 (other than those conditions that by their nature
are to be satisfied by actions taken at the Closing or those that have not been satisfied
primarily due to the failure of Parent or Merger Sub to have performed their respective
obligations under this Agreement) have been satisfied; and (B) the Company has complied in all
material respects with its obligations under Section 6.14(b); provided that, the Company
shall not have the right to terminate this Agreement pursuant to this
Section 8.3(c) if it is then in breach of any representations, warranties, covenants or
other agreements hereunder that would result in the closing conditions set forth in Sections
7.2(a) or 7.2(b) not being satisfied; and provided, further, that if, prior to
the first business day immediately preceding the Termination Date, (x) Parent or Merger Sub shall
have materially breached a representation, warranty or covenant or other agreement set forth in
this Agreement and the Company shall have delivered written notice to Parent in respect of such
breach and (y) (1) such breach cannot be cured by Parent or Merger Sub within 30 calendar days
the following receipt of such written notice or (2) if capable of being cured, has not been cured
within 30 calendar days following receipt of such written notice, then, in the case of clause (x)
and (y), the reference to “only on or after the first business day immediately
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preceding the
Termination Date” in the first clause of this Section 8.3(c) shall be deemed to be a reference to
“at any time prior to the Effective Time”.
8.4. Termination by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the
Effective Time by action of the board of directors of Parent:
(a) if, prior to the time the Requisite Company Vote is obtained, (A) the Company Board
shall have made a Change of Recommendation or shall have approved or recommended to the
stockholders of the Company an Acquisition Proposal; (B) the Company Board shall have failed to
include the Company Recommendation in the Proxy Statement or shall have effected a Company
Adverse Recommendation Change; (C) the Company Board shall have failed to recommend against any
publicly announced Acquisition Proposal and reaffirm the Company Recommendation, in each case,
within ten business days following the public announcement of such Acquisition Proposal and in
any event at least two business days prior to the Stockholders Meeting; (D) the Company enters
into an Alternative Acquisition Agreement; or (E) the Company or the Company Board shall have
publicly announced its intention to do any of the foregoing;
(b) at any time prior to the Effective Time, whether such date is before or after the time
the Requisite Company Vote is obtained, if there has been a breach of any representation,
warranty, covenant or agreement made by the Company in this Agreement, which breach (i) would
give rise to the failure of a condition set forth in Section 7.2(a) or 7.2(b) and (ii) (x) cannot
be cured by the Company by the Termination Date or (y) if capable of being cured, shall not have
been cured (A) within 30 calendar days following receipt of written notice from the Parent of
such breach or (B) any shorter period of time that remains between the date the Parent provides
written notice of such breach and the Termination Date; provided that, Parent shall not
have the right to terminate this Agreement pursuant to this Section 8.4(b) if it is then in
breach of any representation, warranties, covenants or other agreements hereunder that would
result in the closing conditions set forth in Sections 7.3(a) or 7.3(b) not being satisfied; or
(c) at any time prior to the time the Requisite Company Vote is obtained, if the Company
shall have breached or failed to perform in any material respect its obligations set forth in
Section 6.2, which breach or failure to perform cannot be cured by the Company by the Termination
Date or if capable of being cured, shall not have been cured (A) within
two business days following receipt of written notice from the Parent of such breach or
(B) any shorter period of time that remains between the date the Parent provides written notice
of such breach and the Termination Date; provided that, Parent shall not have the right
to terminate this Agreement pursuant to this Section 8.4(c) if it is then in breach of any of its
representations, warranties, covenants or other agreements hereunder that would result in the
closing conditions set forth in Sections 7.3(a) or 7.3(b) not being satisfied.
8.5. Effect of Termination and Abandonment.
(a) In the event of termination of this Agreement in accordance with its terms and the
abandonment of the Merger pursuant to this Article VIII, this Agreement shall
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become void and of
no effect with no liability to any Person on the part of any party hereto (or of any of its
Representatives or Affiliates); provided, however, and notwithstanding anything
to the contrary set forth in this Agreement, that in the event of termination of the Agreement in
accordance with its terms (i) no such termination shall relieve any party from any liability to
pay the fees, expenses and other amounts set forth in this Section 8.5 if and when due in
accordance with the provisions thereof, (ii) the provisions set forth in the second sentence of
Section 9.1 shall survive the termination of this Agreement and (iii) in the event that this
Agreement is terminated pursuant to Section 8.3(b) or Section 8.4(b) and the Company, in the
event of a termination pursuant to Section 8.3(b), or Parent, in the event of a termination
pursuant to Section 8.4(b), establishes that Parent or Merger Sub, in the case of the Company, or
the Company, in the case of Parent, has committed a Willful Breach, then the party that has
committed the Willful Breach shall promptly, but in no event later than five business days after
the date of termination of this Agreement, pay the other party an amount equal to $300 million
(provided, that if the party to be paid such amount has previously been reimbursed for Parent
Expenses or Company Expenses, as the case may be, then the amount of such reimbursed Parent
Expenses or Company Expenses shall be deducted from $300 million required to be paid pursuant to
this clause (iii)) and such amount, upon payment thereof in accordance with the terms of this
Agreement, shall be in lieu of any and all other rights, if any, to any additional or other
damages relating to or arising out of this Agreement, whether pursuant to any other provision of
this Agreement or otherwise (it being understood and agreed, that if this Agreement is terminated
by the Company pursuant to Section 8.3(c), then the Company shall have no rights pursuant to this
clause (iii)). “Willful Breach” means a material breach of any material representation,
warranty or covenant or other agreement set forth in this Agreement that is a consequence of an
act or failure to act by the other party with the actual knowledge that the taking of such act or
failure to take such act would cause a breach of this Agreement.
(b) In the event that:
(i) (I) this Agreement is terminated pursuant to Section 8.2(a) (the section relating
to the Termination Date) before obtaining the Requisite Company Vote or this Agreement is
terminated pursuant to 8.2(b) (the section relating to failure to receive stockholder
approval at the Stockholders Meeting), (II) any Person shall have made or renewed a bona
fide Acquisition Proposal after the No-Shop Period Start Date or any
Acquisition Proposal made after the date hereof but prior to the No-Shop Period Start
Date is publicly disclosed or publicly announced by such Person after the No-Shop Period
Start Date (in either case, a “Qualifying Proposal”), and (III) within 12 months of
such termination the Company shall have consummated any Acquisition Proposal or entered into
a definitive agreement with respect to any Acquisition Proposal and such Acquisition
Proposal is consummated (whether during or after such 12-month period) provided that for
purposes of this clause (III) the references to “20%” in the definition of “Acquisition
Proposal” shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) (the section
relating to a Change of Recommendation) or Section 8.4(c) (the section relating to the
breach of the Acquisition Proposals covenant); or
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(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a) (the
section relating to an Alternative Acquisition Agreement);
then (A) the Company shall promptly, but in no event later than five business days after the date
of such termination (or (I) in the case of clause (i) above, within five business days after the
date on which the Company consummates the Acquisition Proposal referred to in clause (i) above or
(II) in the case of clause (iii) above, immediately prior to or concurrently with termination of
this Agreement by the Company), pay Parent the Termination Fee (as defined below) by wire transfer
of same day funds (it being understood that in no event shall the Company be required to pay the
Termination Fee on more than one occasion); and (B) if this Agreement is terminated pursuant to
Section 8.2(b) (the section relating to failure to receive stockholder approval at the Stockholders
Meeting) and any Person shall have made a Qualifying Proposal, the Company shall promptly, but in
no event later than five business days after the date of such termination (without regard to
whether the Company shall have entered into a definitive agreement with respect to an Acquisition
Proposal or an Acquisition Proposal is consummated) pay Parent or its designees all reasonable
out-of-pocket fees and expenses incurred by Parent or Merger Sub in connection with this Agreement
or the transactions contemplated hereby, including the Financing, in an amount that shall not
exceed $12 million in the aggregate (provided that Parent provides reasonable documentation
therefor) (the “Parent Expenses”). The term “Termination Fee” shall mean an amount
equal to $30 million in cash. Any Parent Expenses previously paid by the Company to Parent
pursuant to this Section 8.5(b)(B) shall be credited towards the payment of the Termination Fee.
Any Parent Expenses or Termination Fee paid to Parent pursuant to this Agreement shall be paid by
wire transfer of immediately available funds to an account or accounts designated in writing by
Parent to the Company for such purpose.
(c) In the event that this Agreement is terminated by Parent pursuant to Section 8.4(b) (the
section relating to a breach by the Company of any representation, warranty, covenant or
agreement made by the Company subject to and as described by such section), then the Company
shall promptly, but in no event later than five business days after the date of such termination,
pay Parent or its designees all Parent Expenses.
(d) In the event that this Agreement is terminated by the Company pursuant to Section
8.3(c), then Parent shall promptly, but in no event later than five business days after the date
of such termination, pay or cause to be paid to the Company by wire transfer of same day funds an
amount equal to $100 million (the “Parent Fee”) (it being understood that in no event
shall Parent be required to pay the Parent Fee on more than one occasion).
(e) In the event that this Agreement is terminated by the Company pursuant to Section 8.3(b)
(the section relating to a breach by Parent or Merger Sub of any representation, warranty,
covenant or agreement made by Parent or Merger Sub subject to and as described by such section),
then Parent shall promptly, but in no event later than five business days after the date of such
termination, pay the Company all Company Expenses. “Company Expenses” means all
reasonable out-of-pocket fees and expenses incurred by the Company in connection with this
Agreement or the transactions contemplated hereby, in an amount that shall not exceed $12 million
in the aggregate (provided that the Company provides reasonable documentation therefor).
69
(f) The parties acknowledge that the agreements contained in this Section 8.5 are an
integral part of the transactions contemplated by this Agreement, and that without these
agreements, the parties would not enter into this Agreement; accordingly, if the Company fails to
promptly pay the amounts due pursuant to this Section 8.5, or if Parent fails to promptly pay the
amount due pursuant to this Section 8.5 and, in order to obtain such payment, Parent or Merger
Sub, on the one hand, or the Company, on the other hand, commences a suit that results in a
judgment against the Company for any amounts due pursuant to this Section 8.5, or a judgment
against Parent for any amounts due pursuant to this Section 8.5, the Company shall pay to Parent
or Merger Sub, on the one hand, or Parent shall pay to the Company, on the other hand, its costs
and expenses (including attorneys’ fees) in connection with such suit, together with interest on
the amount of such amount or portion thereof at the prime rate of Citibank N.A. in effect on the
date such payment was required to be made through the date of payment. Notwithstanding anything
to the contrary in this Agreement, this Section 8.5(f) shall not apply to any payment required to
be made pursuant to the clause (iii) of the proviso in Section 8.5(a).
(g) Notwithstanding anything to the contrary in this Agreement, in the event of the
termination of this Agreement: (i) the Company’s rights pursuant to this Section 8.5 and the
reimbursement and indemnification obligations of Parent under Sections 6.14(b)(iii) and 6.17
hereof or the guarantee thereof pursuant to the Limited Guarantee shall be the sole and exclusive
remedy of the Company and its Subsidiaries against the former, current and future equity holders,
controlling persons, directors, officers, employees, agents, Affiliates, members, managers,
general or limited partners or assignees or Financing Sources of the Guarantor, Parent, Merger
Sub or any former, current or future stockholder, controlling person, director, officer,
employee, general or limited partner, member, manager, Affiliate, agent or assignee of any of the
foregoing (each, a “Related Party”) for any losses or damages suffered as a result of any
breach of any representation, warranty, covenant or agreement made by Parent or Merger Sub in
this Agreement or in any certificate or other document delivered in connection herewith or the
failure of the Merger to
be consummated, and upon payment of such amounts if and when due, none of the Guarantor,
Parent, Merger Sub or any of their Related Parties shall have any further liability or obligation
relating to or arising out of this Agreement or the transactions contemplated by this Agreement,
except that Parent shall remain obligated with respect to the indemnification and reimbursement
obligations of Parent contained in Sections 6.14(b)(iii) and 6.17; and (ii) Parent’s rights
pursuant to this Section 8.5 shall be the sole and exclusive remedy of Parent, Merger Sub, the
Guarantors and their respective Affiliates against the Company, its Subsidiaries and any of their
respective former, current, or future stockholders, directors, officers, Affiliates or agents for
any losses or damages suffered as a result of any breach of any representation, warranty,
covenant or agreement made by the Company in this Agreement or in any certificate or other
document delivered in connection herewith or the failure of the Merger to be consummated, and
upon payment of such amounts if and when due, none of the Company, its Subsidiaries or any of
their respective former, current, or future stockholders, directors, officers, Affiliates or
agents shall have any further liability or obligation relating to or arising out of this
Agreement or the transactions contemplated by this Agreement.
70
ARTICLE IX
Miscellaneous and General
9.1. Survival. This Article IX and the agreements of the Company, Parent and Merger Sub contained in
Article IV and Sections 6.7 (Stock Exchange De-listing), 6.9 (Employee Benefits),
6.10 (Expenses), 6.11 (Indemnification; Directors’ and Officers’ Insurance), the
indemnification and reimbursement obligations of Parent pursuant to Section
6.14 (Financing) and Section 6.17 (Debt Tender Offer) shall survive the
consummation of the Merger. This Article IX and the agreements of the Company, Parent and Merger
Sub contained in Section 6.10 (Expenses), the indemnification and reimbursement provisions
of Section 6.14 (Financing) and Section 8.5 (Effect of Termination and
Abandonment), the Confidentiality Agreement and the Limited Guarantee shall survive the
termination of this Agreement (in the case of the Confidentiality Agreement and the Limited
Guarantee, subject to the terms thereof). All other representations, warranties, covenants and
agreements in this Agreement shall not survive the consummation of the Merger or the termination of
this Agreement.
9.2. Modification or Amendment. Subject to the provisions of the applicable Laws, at any time prior to the Effective Time,
the parties hereto may modify or amend this Agreement, by written agreement executed and delivered
by duly authorized officers of the respective parties, whether before or after stockholder approval
hereof; provided however, after stockholder approval hereof no amendment shall be made which by Law
requires the further approval of such stockholders without such further approval.
9.3. Waiver of Conditions. The conditions to each of the parties’ obligations to consummate the Merger are for the
sole benefit of such party and may be waived by such party in whole or in part to the extent
permitted by applicable Laws.
9.4. Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts shall together constitute the same
agreement.
9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL; REMEDIES. (a) THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each party hereto agrees that
it shall bring any action or proceeding in respect of any claim arising out of or related to this
Agreement or the transactions contained in or contemplated by this Agreement exclusively in the
Court of Chancery of the State of Delaware, or to the extent such Court does not have subject
matter jurisdiction, the Superior Court of the State of Delaware (the “Chosen Courts”), and
solely in connection with claims arising under this Agreement or the transactions that are the
subject of this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen
Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen
Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have
jurisdiction over any party hereto and (iv) agrees that service of process upon such party in any
such action or proceeding shall be effective if notice is given in accordance with Section 9.6 of
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this Agreement. Notwithstanding anything in this Agreement to the contrary, each of the parties
hereto agrees that it will not bring or support any action, cause of action, claim, cross-claim or
third-party claim of any kind or description, whether in law or in equity, whether in contract or
in tort or otherwise, against the Financing Sources in any way relating to this Agreement or any of
the transactions contemplated by this Agreement (including, but not limited to, any such action,
cause of action or claim against the Financing Sources arising out of or relating in any way to the
Debt Commitment Letter or the performance thereof) in any forum other than the Supreme Court of the
State of New York, County of New York, or, if under applicable law exclusive jurisdiction is vested
in the federal courts, the United States District Court for the Southern District of New York (and
appellate courts thereof).
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND
(iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5(b).
(c) Remedies.
(i) Except as otherwise provided in this Agreement, any and all remedies herein
expressly conferred upon a party will be deemed cumulative with and not exclusive of any
other remedy expressly conferred hereby, and the exercise by a party of any one such remedy
will not preclude the exercise of any other such remedy.
(ii) The parties hereto hereby agree that irreparable damage would occur in the event
that any provision of this Agreement were not performed in accordance with its specific
terms or were otherwise breached, and that money damages or other legal remedies would not
be an adequate remedy for any such damages. Accordingly, the parties hereto acknowledge and
hereby agree that, unless this Agreement has been terminated in accordance with Article
VIII, in the event of any breach or threatened breach by the Company, on the one hand, or
Parent and Merger Sub, on the other hand, of any of their respective covenants or
obligations set forth in this Agreement or the Equity Financing Letter, the Company, on the
one hand, and Parent and Merger Sub, on the other hand, shall be entitled to an injunction
or injunctions to prevent or restrain breaches or threatened breaches of this
72
Agreement or
the Equity Financing Letter by the other (as applicable), and to specifically enforce the
terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to
enforce compliance with, the covenants and obligations of the other under this Agreement and
the Equity Financing Letter, and this right shall include the right of the Company to cause
Parent and Merger Sub to fully enforce the terms of the Equity Financing Letter against the
Guarantor in the circumstances set forth in clause (A) of the following sentence, to the
fullest extent permissible pursuant to the Equity Financing Letter and applicable laws and
to thereafter cause the Merger to be consummated. Notwithstanding anything to the contrary
herein, it is explicitly agreed that (A) the Company shall be entitled to seek specific
performance of Parent’s obligation to cause the Equity Financing to be funded to fund the
Merger including by demanding Parent and/or Merger Sub to file one or more lawsuits against
the Guarantor to fully enforce the Guarantor’s obligations thereunder and Parent’s and/or
Merger Sub’s rights thereunder, but only in the event that (x) all conditions in Sections
7.1 and 7.2 (other than those not satisfied primarily due to the failure of Parent or Merger
Sub to have performed their respective obligations under this Agreement) have been satisfied
(or, with respect to certificates to be delivered at the Closing, are capable of being
satisfied upon the Closing) at the time when the Closing would have occurred but for the
failure of the Equity Financing to be funded or the failure of any conditions in Section 7.3
to have been satisfied, (y) the financing provided for by the Debt Commitment Letter (or, if
alternative financing is being used in accordance with Section 6.14, pursuant to the
commitments with respect thereto) has been funded or will be funded at the Closing if the
Equity Financing is funded at the Closing, and (z) the
Company has irrevocably confirmed that if specific performance is granted and the
Equity Financing and Debt Financing are funded, then the Closing pursuant to Article II will
occur and (B) the Company shall be entitled to seek specific performance to cause Parent and
Merger Sub to enforce the terms of the Debt Commitment Letter, including by demanding Parent
and/or Merger Sub to file one or more lawsuits against the sources of the Debt Financing to
fully enforce such sources’ obligations thereunder and Parent’s and/or Merger Sub’s rights
thereunder, but only in the event that (x) all of the conditions in Sections 7.1 and 7.2
(other than those not satisfied primarily due to the failure of Parent or Merger Sub to have
performed their respective obligations under this Agreement) have been satisfied (or, with
respect to certificates to be delivered at the Closing, are capable of being satisfied upon
the Closing) at the time when the Closing would have occurred but for the failure of the
Equity Financing and/or Debt Financing to be funded or the failure of any conditions in
Section 7.3 to have been satisfied and (y) all of the conditions to the consummation of the
financing provided for by the Debt Commitment Letter (or, if alternative financing is being
used in accordance with Section 6.14, pursuant to the commitments with respect thereto) have
been satisfied (or, with respect to certificates to be delivered at the consummation of the
Debt Financing, are capable of being satisfied upon consummation). Each party hereby agrees
not to raise any objections to the availability of the equitable remedy of specific
performance to prevent or restrain breaches or threatened breaches of this Agreement by such
party, and to specifically enforce the terms and provisions of this Agreement to prevent
breaches or threatened breaches of, or to enforce compliance with, the covenants and
obligations of such party under this Agreement. Any party seeking an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement shall not be required to provide any bond or other security in
73
connection with any such order or injunction. The parties hereto further agree that (x) by
seeking the remedies provided for in this Section 9.5(c), a party shall not in any respect
waive its right to seek any other form of relief that may be available to a party under this
Agreement, the Equity Financing Letter or the Limited Guarantee (including monetary damages)
in the event that the remedies provided for in this Section 9.5(c) are not available or
otherwise are not granted, and (y) nothing set forth in this Section 9.5(c) shall require
any party hereto to institute any proceeding for (or limit any party’s right to institute
any proceeding for) specific performance under this Section 9.5(c) prior or as a condition
to exercising any termination right under Article VIII (and/or receipt of any amounts due
pursuant to Section 8.5), nor shall the commencement of any legal action or legal proceeding
pursuant to this Section 9.5(c) or anything set forth in this Section 9.5(c) restrict or
limit any party’s right to terminate this Agreement in accordance with the terms of Article
VIII, or pursue any other remedies under this Agreement, the Equity Financing Letter or the
Limited Guarantee that may be available then or thereafter. Notwithstanding anything set
forth herein to the contrary, from and after the Effective Time, none of the Company, its
Affiliates, or their respective current or former directors, officers or employees shall be
entitled to seek or recover monetary or other damages or relief (including equitable relief)
against Parent, the Surviving Corporation, the Guarantor or any of their respective
Affiliates in connection with this Agreement or the transactions contemplated hereby, except
for claims against the Surviving Corporation pursuant to Section 6.11.
(iii) Notwithstanding anything to the contrary in this Section 9.5(c), in the event of
the termination of this Agreement in accordance with its terms: (A) Parent’s rights pursuant
to Section 8.5 shall be the sole and exclusive remedy of Parent, Merger Sub, the Guarantors
and their respective Affiliates against the Company, its Subsidiaries and any of their
respective former, current, or future stockholders and (B) the Company’s rights pursuant to
Section 8.5 and under the Limited Guarantee shall be the sole and exclusive remedy of the
Company against Parent and Merger Sub and Guarantor and any of their Related Parties.
(iv) WITHOUT IMPAIRING IN ANY RESPECT THE RIGHTS OF THE COMPANY OR PARENT SET FORTH IN
SECTION 8.5, (I) NO PARTY TO THIS AGREEMENT SHALL BE ENTITLED TO RECEIVE ANY DAMAGES FOR
BREACH OF THIS AGREEMENT BY THE OTHER PARTY, OR OTHERWISE, OTHER THAN ANY ACTUAL DAMAGES
SUFFERED OR INCURRED BY SUCH PARTY AND (II) EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHT IT
MAY HAVE TO RECEIVE DAMAGES FROM ANY OTHER PARTY BASED ON ANY THEORY OF LIABILITY FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL (INCLUDING LOST PROFITS), PUNITIVE OR SIMILAR DAMAGES,
INCLUDING ANY DAMAGES TO SHAREHOLDERS, PARTNERS OR OTHER EQUITY OWNERS, NONE OF WHICH SHALL
CONSTITUTE ACTUAL DAMAGES.
(v) Notwithstanding anything to the contrary in this Agreement and to clarify the
agreement of the parties and without impairing any of the rights of the Company to
74
specific
performance in accordance with this Section 9.5(c), the maximum liability for monetary
damages of Parent, Merger Sub, Guarantor and any of their respective Related Parties to the
Company under or in respect of this Agreement or the transactions contemplated hereby (and
the Limited Guarantee) under any theory, including in the event of a Willful Breach of this
Agreement, is $300 million.
9.6. Notices. Any notice, request, instruction or other document to be given hereunder by any party to
the others shall be in writing and delivered personally or sent by registered or certified mail,
postage prepaid, by facsimile or overnight courier:
If to Parent or Merger Sub:
Cerberus Capital Management, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Neporent
Xxxx X. Xxxx
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Neporent
Xxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Facsimile: (000) 000-0000
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Facsimile: (000) 000-0000
If to the Company:
DynCorp International, Inc.
0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention Xxxxxxx X. Ballhaus, CEO
Facsimile: (000) 000-0000
0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention Xxxxxxx X. Ballhaus, CEO
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and a copy to:
Xxxxxxxx, Xxxxxx & Finger, P.A.
One Xxxxxx Square
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
One Xxxxxx Square
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
75
or to such other persons or addresses as may be designated in writing by the party to receive such
notice as provided above. Any notice, request, instruction or other document given as provided
above shall be deemed given to the receiving party upon actual receipt, if delivered personally;
three business days after deposit in the mail, if sent by registered or certified mail; upon
confirmation of successful transmission if sent by facsimile (provided that, if given by
facsimile, such notice, request, instruction or other document shall be followed up within one
business day by dispatch pursuant to one of the other methods described herein); or on the next
business day after deposit with an overnight courier, if sent by an overnight courier.
9.7. Entire Agreement. This Agreement (including any exhibits hereto), the Company Disclosure Schedule, the Voting
Agreement, the Limited Guarantee and the Confidentiality Agreement, dated February 6, 2010, as
amended to date, among Cerberus Capital Management, L.P., the Company and the
other party signatory thereto (the “Confidentiality Agreement”), constitute the entire agreement, and supersede
all other prior agreements, understandings, representations and warranties both written and oral,
among the parties, with respect to the subject matter hereof. EACH PARTY HERETO AGREES THAT,
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT AND ANY CERTIFICATE OR
DOCUMENT DELIVERED IN CONNECTION WITH THIS AGREEMENT, NEITHER PARENT AND MERGER SUB NOR THE COMPANY
MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, AND EACH HEREBY DISCLAIMS ANY OTHER REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, OR AS TO THE ACCURACY OR COMPLETENESS OF ANY OTHER INFORMATION,
MADE BY, OR MADE AVAILABLE BY, ITSELF OR ANY OF ITS REPRESENTATIVES, WITH RESPECT TO, OR IN
CONNECTION WITH, THE NEGOTIATION, EXECUTION OR DELIVERY OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE OTHER OR THE OTHER’S
REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE
FOREGOING.
9.8. No Third Party Beneficiaries. This Agreement is not intended to, and shall not, confer upon any other Person any rights
or remedies hereunder, except as set forth in or contemplated by the terms and provisions of
Section 6.11; provided, that each party hereto agrees that the Financing Sources are
intended third party beneficiaries under Sections 8.5(g) and 9.5, and each such Financing Source
and its successors and assigns may enforce such provisions. Parent, Merger Sub and the Company
hereby agree that, except as set forth in or contemplated by the terms and provisions of
Section 6.11, their respective representations, warranties and
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covenants set forth herein are
solely for the benefit of the other party hereto, in accordance with and subject to the terms of
this Agreement, and this Agreement is not intended to, and does not, confer upon any Person
(including any Person claiming any rights arising from or through the parties hereto) other than
the parties hereto any rights or remedies hereunder, including the right to rely upon the
representations and warranties and covenants set forth herein. The parties hereto further agree
that the rights of third party beneficiaries under Section 6.11 shall not arise unless and until
the Effective Time occurs. The representations and warranties in this Agreement are the product of
negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any
inaccuracies in such representations and warranties are subject to waiver by the parties hereto in
accordance with Section 9.3 without notice or liability to any other Person. In some instances,
the representations and warranties in this Agreement may represent an allocation among the parties
hereto of risks associated with particular matters regardless of the knowledge of any of the
parties hereto. Consequently, Persons other than the parties hereto may not rely upon the
representations and warranties in this Agreement as characterizations of actual facts or
circumstances as of the date of this Agreement or as of any other date.
9.9. Obligations of Parent and of the Company. Whenever this Agreement requires a Subsidiary of Parent to take any action on or prior to
the Closing, such requirement shall be deemed to include an undertaking on the part of Parent to
cause such Subsidiary to take such action. Whenever this Agreement requires a Subsidiary of the
Company to take any action on or prior to the Closing, such requirement shall be deemed to include
an undertaking on the part of the Company to cause such Subsidiary to take such action and, after
the Effective Time, on the part of the Surviving Corporation to cause such Subsidiary to take such
action.
9.10. Transfer Taxes. All transfer, documentary, sales, use, stamp, registration and other such similar Taxes and
fees (including penalties and interest) incurred in connection with the Merger shall be paid by
Parent and Merger Sub when due.
9.11. Definitions. Each of the terms set forth in Annex A is defined in the Section of this Agreement set
forth opposite such term.
9.12. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the application thereof to any Person or
any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity
or enforceability of such provision, or the application thereof, in any other jurisdiction.
9.13. Interpretation; Construction.
(a) The table of contents and headings herein are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof. Where a reference in this Agreement is made to
77
a Section or Exhibit, such
reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated.
Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.”
(b) The parties have participated jointly in negotiating and drafting this Agreement. In
the event that an ambiguity or a question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
(c) Each party here has or may have set forth information in its respective Disclosure
Schedule in a section thereof that corresponds to the section of this Agreement to which it
relates. The fact that any item of information is disclosed in a Disclosure Schedule to this
Agreement shall not be construed to mean that such information is required to be disclosed by
this Agreement.
9.14. Assignment. 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, except that Merger Sub may assign, in its sole discretion,
any of or all of its rights, interest and obligations under this Agreement to Parent or to any
direct or indirect wholly-owned subsidiary of Parent and Parent and Merger Sub may so assign to any
parties providing debt financing to the Surviving Corporation for purposes of creating a security
interest herein or otherwise assigning as collateral in respect of such debt financing, but no such
assignment shall relieve the assigning party of 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. Prior to or on (but not after) the Closing, Parent
shall cause Merger Sub, and any assignee hereof, to perform all of its obligations under this
Agreement required to be performed on or prior to the Closing and shall be responsible for any
failure of Merger Sub or such assignee to comply with any representation or warranty, and any
covenant required to be performed on or prior to the Closing, under this Agreement. Any purported
assignment in violation of this Agreement is void.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto as of the date first written above.
DYNCORP INTERNATIONAL INC. |
||||
By: | /s/ Xxxxxxx X. Ballhaus | |||
Name: | Xxxxxxx X. Ballhaus | |||
Title: | President and Chief Executive Officer | |||
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto as of the date first written above.
DELTA XXXXXX HOLDINGS, INC. |
||||
By: | /s/ W. Xxxxx Xxxxxxxxx | |||
Name: | W. Xxxxx Xxxxxxxxx | |||
Title: | President | |||
DELTA XXXXXX SUB, INC. |
||||
By: | /s/ W. Xxxxx Xxxxxxxxx | |||
Name: | W. Xxxxx Xxxxxxxxx | |||
Title: | President | |||
ANNEX A
DEFINED TERMS
Section | ||
409A Authorities | 5.1(h) | |
Acquisition | 6.1(a) | |
Acquisition Proposal | 6.2(d) | |
Affiliate | 5.1(a) | |
Agreement | Preamble | |
Alternative Acquisition Agreement | 6.2(e)(iii) | |
Anti-Bribery Act | 5.1(j)(i) | |
Antitrust Law | 6.5(a) | |
Applicable Date | 5.1(e)(i) | |
Available Financing | 6.14(b)(iii) | |
Bankruptcy and Equity Exception | 5.1(c)(i) | |
BATFE | 5.1(j) | |
Benefit Plans | 5.1(h)(i) | |
Bid | 5.1(t)(viii) | |
BIS | 5.1(j) | |
business day | 1.2 | |
Bylaws | 2.2 | |
Certificate | 4.1(a) | |
Certificate of Merger | 1.3 | |
Change of Recommendation | 6.2(e) | |
Charter | 2.1 | |
Chosen Courts | 9.5(a) | |
Class B Common Stock | 5.1(b)(i) | |
Closing | 1.2 | |
Closing Date | 1.2 | |
Code | 4.2(g) | |
Collective Bargaining Agreement | 5.1(i) | |
Common Stock | 4.1(a) | |
Company | Preamble | |
Company Adverse Recommendation Change | 6.2(e)(ii) | |
Company Board | Recitals | |
Company Data Site | 6.1(a) | |
Company Disclosure Schedule | 5.1 | |
Company Expenses | 8.5(e) | |
Company Group | 5.1(h)(i) | |
Company Material Adverse Effect | 5.1(a) | |
Company Recommendation | 5.1(c)(ii) | |
Company Reports | 5.1(e)(i) | |
Confidentiality Agreement | 9.7 | |
Contract | 5.1(d)(i) | |
Control | 5.1(a) |
Section | ||
Copyrights | 5.1(n) | |
Costs | 6.11(a) | |
D&O Insurance | 6.11(b) | |
DDTC | 5.1(j) | |
Debt Commitment Letter | 5.2(e)(ii) | |
Debt Financing | 5.2(e)(ii) | |
Debt Tender Offer | 6.17(a) | |
DGCL | 1.1 | |
Dissenting Shares | 4.2(f) | |
Dissenting Stockholders | 4.2(f) | |
DSS | 6.5(e) | |
Effective Time | 1.3 | |
Embargoed Person | 5.1(j) | |
Employees | 5.1(h)(i) | |
Environmental Law | 5.1(l) | |
Environmental Permits | 5.1(l)(ii) | |
Equity Financing | 5.2(e)(ii) | |
Equity Financing Letter | 5.2(e)(ii) | |
ERISA | 5.1(h)(i) | |
ERISA Affiliates | 5.1(h)(iii) | |
Exchange Act | 5.1(a) | |
Exchange Fund | 4.2(a) | |
Excluded Share, Excluded Shares | 4.1(a) | |
Executory Government Contract | 5.1(t)(viii) | |
FCPA | 5.1(j)(i) | |
Financing | 5.2(e)(ii) | |
Financing Letters | 5.2(e)(ii) | |
Financing Sources | 6.14(b)(iii) | |
FLSA | 5.1(i) | |
GAAP | 5.1(e)(iv) | |
Xxxxxxx Xxxxx | 5.1(p)(i) | |
Government Contract | 5.1(t)(viii) | |
Governmental Antitrust Entity | 6.5(d)(i) | |
Governmental Entity | 5.1(d)(ii) | |
Guarantor | Recitals | |
Hazardous Substance | 5.1(l) | |
HSR Act | 5.1(d)(ii) | |
Indebtedness | 5.1(s)(i) | |
Indemnified Parties | 6.11(a) | |
Indenture | 6.17(a) | |
Insurance Policies | 5.1(o) | |
Intellectual Property | 5.1(n) | |
IRS | 5.1(h)(ii) | |
Issuers | 6.17(a) | |
Knowledge | 5.1(g)(v) | |
Laws | 5.1(j)(i) |
A-2
Section | ||
Leases | 5.1(q)(ii) | |
Licenses | 5.1(j)(i) | |
Lien | 5.1(b)(i) | |
Limited Guarantee | Recitals | |
Marketing Period | 1.2 | |
Material Contract | 5.1(s)(i) | |
Merger | Recitals | |
Merger Sub | Preamble | |
Multiemployer Plan | 5.1(h)(iii) | |
New Debt Commitment Letter | 6.14(b)(ii) | |
Nonqualified Deferred Compensation Plan | 5.1(h) | |
Non-U.S. Benefit Plans | 5.1(h)(i) | |
No-Shop Period Start Date | 6.2(a) | |
Notes | 6.17(a) | |
NYSE | 5.1(d)(ii) | |
OFAC | 5.1(j)(x) | |
Offering Documents | 6.14(b)(iii) | |
Order | 7.1(c) | |
Parent | Preamble | |
Parent Expenses | 8.5(b) | |
Parent Fee | 8.5(d) | |
Patents | 5.1(n) | |
Paying Agent | 4.2(a) | |
Per Share Merger Consideration | 4.1(a) | |
Permitted Liens | 5.1(q) | |
Person | 4.2(d) | |
Preferred Stock | 5.1(b)(i) | |
Proxy Statement | 6.3(a) | |
Qualifying Proposal | 8.5(b) | |
Record Holder | 4.1(b) | |
Registered Intellectual Property | 5.1(n)(i) | |
Related Party | 8.5(g) | |
Representatives | 6.2(a) | |
Required Information | 5.2(h) | |
Requisite Company Vote | 5.1(c)(i) | |
Rights Plan | 5.1(k)(i) | |
RSU | 4.3 | |
Xxxxxxxx-Xxxxx Act | 5.1(e)(i) | |
SEC | 5.1 | |
Securities Act | 5.1(b)(i) | |
Service Providers | 5.1(h)(i) | |
Share, Shares | 4.1(a) | |
Solvent | 5.2(h) | |
Specified Leases | 5.1(q)(ii) | |
Specified operating covenants | 6.1(a) | |
Stock Plan | 5.1(b)(i) |
A-3
Section | ||
Stockholders Meeting | 6.4 | |
Subsidiary | 5.1(a) | |
Superior Proposal | 6.2(d) | |
Surviving Corporation | 1.1 | |
Takeover Statutes | 5.1(k)(ii) | |
Tax Return | 5.1(m) | |
Tax, Taxes | 5.1(m) | |
Termination Date | 8.2(a) | |
Termination Fee | 8.5(a) | |
Trade Secrets | 5.1(n) | |
Trademarks | 5.1(n) | |
Trustee | 6.17(a) | |
U.S. Benefit Plans | 5.1(h)(ii) | |
U.S. Export Control Laws | 5.1(j) | |
U.S. Import Laws | 5.1(j) | |
U.S. Trade Control Agencies | 5.1(j) | |
Union, Unions | 5.1(i) | |
Voting Agreement | Recitals | |
Willful Breach | 8.5(a) |
A-4
EXHIBIT A
FORM OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DYNCORP INTERNATIONAL, INC
CERTIFICATE OF INCORPORATION
OF
DYNCORP INTERNATIONAL, INC
ARTICLE I
NAME
NAME
The
name of the corporation is DynCorp International, Inc. (the “Corporation”).
ARTICLE II
PURPOSE
PURPOSE
The purpose for which the Corporation is organized is to engage in any lawful act or activity
for which corporations may be organized under the DGCL.
ARTICLE III
REGISTERED AGENT
REGISTERED AGENT
The street address of the initial registered office of the Corporation in the State of
Delaware is 0000 Xxxxxxxxxxx Xxxx in the City of Wilmington, County of New Castle, and the name of
the Corporation’s initial registered agent at such address is Corporation Service Company.
ARTICLE IV
CAPITALIZATION
CAPITALIZATION
Section 4.1 Authorized Capital Stock. The total number of shares of capital stock
that the Corporation is authorized to issue is 2,000 shares, divided into two classes consisting of
(a) 1,000 shares of common stock, par value $0.01 per share
(“Common Stock”), and (b) 1,000 shares
of preferred stock, par value $0.01 per share (“Preferred Stock”).
Section 4.2 Preferred Stock.
(a) Shares of Preferred Stock may be issued in one or more series from time to time,
with each such series to consist of such number of shares and to have such voting powers, full or
limited, or no voting powers, and such designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or restrictions thereof, as
shall be stated in the resolution or resolutions providing for the issuance of such series adopted
by the board of directors of the Corporation (the “Board”) and included in a certificate of
designations (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby
expressly vested with the authority, to the full extent now or hereafter provided by law, to adopt
any such resolution or resolutions. The authority of the Board with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the following:
(i) the number of shares constituting that series and the distinctive
designation of that series;
(ii) the dividend rate or rates on the shares of that series, the terms and conditions
upon which and the periods in respect of which dividends shall be payable, whether dividends shall
be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any,
of payment of dividends on shares of that series;
(iii) whether that series shall have voting rights, in addition to the voting rights
provided by law, and, if so, the terms of such voting rights;
(iv) whether that series shall have conversion privileges, and, if so, the terms and
conditions of such conversion, including provision for adjustment of the conversion rate in such
events as the Board shall determine;
(v) whether or not the shares of that series shall be redeemable, and, if so, the terms
and conditions of such redemption, including the date or dates upon or after which they shall be
redeemable, and the amount per share payable in the event of redemption, which amount may vary
under different conditions and at different redemption dates;
(vi) whether that series shall have a sinking fund for the redemption or purchase of
shares of that series, and, if so, the terms and amount of such sinking fund;
(vii) the rights of the shares of that series in the event of voluntary or involuntary
liquidation, distribution of assets, dissolution or winding up of the corporation, and the relative
rights of priority, if any, of payment of shares of that series; and
(viii) any other relative rights, powers, and preferences, and the qualifications,
limitations and restrictions thereof, of that series.
(b) Subject to the rights of the holders of any series of Preferred Stock pursuant to the
terms of this Certificate (including any Preferred Stock Designation), the number of authorized
shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of the outstanding shares of
Common Stock, irrespective of the provisions of Section 242(b)(2) of the DGCL.
(c) Each holder of shares of Common Stock, as such, shall be entitled to one vote for each
share of Common Stock held of record by such holder on all matters on which stockholders generally
are entitled to vote; provided, however, that except as otherwise required by law or this
Certificate (including a Preferred Stock Designation), holders of Common Stock, as such, shall not
be entitled to vote on any amendment to this Certificate (including any amendment to any Preferred
Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred
Stock if the holders of such affected series are entitled, either separately or together with the
holders of one or more other such series, to vote thereon pursuant to this Certificate (including
any Preferred Stock Designation) or pursuant to the DGCL.
ARTICLE V
DIRECTORS
DIRECTORS
Section 6.1 Election. Unless and except to the extent that the By-Laws shall so require, the election of directors need not be by written ballot. |
ARTICLE VI
LIABILITY AND INDEMNIFICATION
LIABILITY AND INDEMNIFICATION
Section 6.1 Liability. A director of the Corporation shall not be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any repeal, modification or amendment of this Article VI shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal, modification or amendment with respect to acts of omissions occurring prior to such repeal, modification or amendment. |
Section 6.2 Indemnification. |
(a) Each person (a “Covered Person”) who was or is made a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “proceeding”) (including an action by or in the right of the
Corporation), by reason of the fact that he or she is or was serving as a director or officer of
the Corporation (or, while a director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, employee or agent of another entity, including
employees benefit plans), shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the DGCL. To the fullest extent authorized by the DGCL, this indemnification
will cover all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA
excise taxes or penalties and settlement amounts) reasonably incurred by the director in
connection with a proceeding. All such indemnification shall continue as to a director or officer
who has ceased to be a director or officer and shall continue to the benefit of such director’s or
officer’s heirs, executors and administrators. Except as provided in Section 6.2(b) with respect
to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such
director or officer who initiates a proceeding (or part thereof) only if such proceeding (or part
thereof) was authorized in advance by the Board of Directors of the Corporation. The right to
indemnification conferred by this Article VI shall be a contract right. The Corporation shall pay
the expenses incurred by a Covered Person in defending any such proceeding in advance of its final
disposition (“advancement of expenses”). If the DGCL requires, an advancement of expenses incurred
by a director or officer in his or her capacity as a director or officer shall be made only upon
delivery to the Corporation of an undertaking by such director or officer to repay all amounts so
advanced if it is ultimately determined by final judicial decision that such director or officer
is not entitled to be indemnified for such expenses under this Article VI or otherwise
(hereinafter an “undertaking”).
(b) If a claim under Section 6.2(a) is not paid in full by the Corporation within ninety days
after receipt of a written claim; the director or officer may bring suit against the Corporation
to recover the unpaid amount provided, that, in the case of a claim for advancement of expenses,
the applicable period will be twenty days. If successful in any such suit, the director or officer
will also be entitled to be paid the expense of prosecuting such suit. In any suit brought by the
director or officer to enforce a right to indemnification hereunder (but not in a suit brought by
the director or officer to enforce a right to an advancement of expenses), it shall be a defense
that the director or officer has not met the applicable standard of conduct under the DGCL. In any
suit by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, it shall be entitled to recover such expenses upon a final adjudication that the
director or officer has not met the applicable standard of conduct set forth in the DGCL. Neither
the failure of the Board of Directors of the Corporation to determine prior to the commencement of
such suit that the director or officer has met the applicable standard of conduct for
indemnification set forth in the DGCL, nor an actual determination by the Board of Directors of the
Corporation that the director or officer has not met such applicable standard of conduct, shall
create a presumption that the director or officer has not met the applicable standard of conduct,
and, in the case of such a suit brought by the director or officer to enforce a right hereunder or
by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the director or officer is not entitled to be indemnified or to such
advancement of expenses under this Article VI or otherwise shall be on the Corporation.
(c) The rights to indemnification and to the advancement of expenses conferred in this
Article VI are not exclusive of any other right which any person may have or hereafter acquire
under any statute, this Amended and Restated Certificate of Incorporation, the Corporation’s
Bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or other entity against any expense,
liability or loss, whether or not the Corporation would have the power to indemnify such person
under the DGCL.
(e) The Corporation may, if authorized by the Board of Directors, grant rights to
indemnification and to the advancement of expenses to any employee or agent of the Corporation to
the same extent as for directors of the Corporation.
(f) No amendment to or repeal of the provisions of this Article VI shall deprive a director
or officer of the benefit hereof with respect to any act or failure to act occurring prior to such
amendment or repeal.
ARTICLE VII
BY-LAWS
BY-LAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall
have the power to adopt, amend, alter or repeal the By-Laws of the Corporation. The By-Laws also
may be adopted, amended, altered or repealed by the stockholders.
ARTICLE VIII
AMENDMENT OF CERTIFICATE OF INCORPORATION
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Certificate (including any Preferred Stock Designation), in the manner now or hereafter
prescribed by this Certificate and the DGCL; and except as set forth in Article VI, all rights,
preferences and privileges herein conferred upon stockholders, directors or any other persons by
and pursuant to this Certificate in its present form or as hereafter amended are granted subject to
the rights reserved in this Article.