Exhibit
2.1
AGREEMENT AND PLAN OF MERGER
by and among
EISAI CO., LTD.
JAGUAR ACQUISITION CORP.
and
MGI PHARMA, INC.
Dated as of December 10, 2007
TABLE OF CONTENTS
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ARTICLE I THE OFFER AND THE MERGER |
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2 |
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Section 1.1. The Offer |
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2 |
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Section 1.2. Company Actions |
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5 |
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Section 1.3. Board of Directors |
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6 |
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Section 1.4. The Top-Up Option |
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8 |
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Section 1.5. The Merger |
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9 |
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Section 1.6. Effective Time |
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9 |
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Section 1.7. Closing |
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10 |
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Section 1.8. Directors and Officers of the Surviving Corporation |
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10 |
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Section 1.9. Subsequent Actions |
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10 |
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Section 1.10. Shareholders’ Meeting |
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10 |
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Section 1.11. Merger Without Meeting of Shareholders |
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12 |
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ARTICLE II CONVERSION OF SECURITIES |
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12 |
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Section 2.1. Conversion of Capital Stock |
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12 |
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Section 2.2. Exchange of Certificates |
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13 |
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Section 2.3. Dissenting Shares |
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15 |
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Section 2.4. Treatment of Options; SARs, RSUs |
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16 |
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Section 2.5. Treatment of Warrants |
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17 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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17 |
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Section 3.1. Organization |
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17 |
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Section 3.2. Capitalization |
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18 |
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Section 3.3. Authorization; Validity of Agreement; Company Action |
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20 |
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Section 3.4. Board Approvals |
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20 |
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Section 3.5. Consents and Approvals; No Violations |
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21 |
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Section 3.6. Company SEC Documents and Financial Statements |
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23 |
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Section 3.7. Absence of Certain Changes |
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24 |
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Section 3.8. Absence of Undisclosed Liabilities |
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25 |
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Section 3.9. Litigation |
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25 |
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Section 3.10. Employee Benefit Plans; ERISA |
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25 |
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Section 3.11. Taxes |
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28 |
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Section 3.12. Material Contracts |
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29 |
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Section 3.13. Title to Properties and Encumbrances |
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30 |
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Section 3.14. Intellectual Property |
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31 |
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Section 3.15. Compliance with Laws; Permits |
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33 |
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Section 3.16. Information in the Proxy Statement |
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33 |
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Section 3.17. Information in the Offer Documents and the Schedule 14D-9 |
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34 |
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Section 3.18. Opinion of Financial Advisor |
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34 |
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Section 3.19. Insurance |
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34 |
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Table of Contents (Cont’d)
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Section 3.20. Environmental Laws and Regulations |
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34 |
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Section 3.21. Brokers |
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36 |
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Section 3.22. Actions Under Rights Plan; Takeover Statutes |
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36 |
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Section 3.23. Regulatory Compliance |
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36 |
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Section 3.24. Labor Matters |
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38 |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER |
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38 |
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Section 4.1. Organization |
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38 |
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Section 4.2. Authorization; Validity of Agreement; Necessary Action |
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38 |
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Section 4.3. Consents and Approvals; No Violations |
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39 |
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Section 4.4. Litigation |
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39 |
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Section 4.5. Information in the Proxy Statement |
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39 |
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Section 4.6. Information in the Offer Documents and Registration Statement |
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39 |
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Section 4.7. Ownership of Company Capital Stock |
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40 |
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Section 4.8. Sufficient Funds |
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40 |
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Section 4.9. Purchaser |
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40 |
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ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER |
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40 |
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Section 5.1. Conduct of Business by the Company Pending the Merger |
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40 |
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Section 5.2. Conduct of Business by Parent and Purchaser Pending the Merger |
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44 |
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Section 5.3. No Solicitation; Unsolicited Proposals |
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44 |
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Section 5.4. Board Recommendation |
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46 |
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Section 5.5. Matters Relating to Certain Company Indebtedness |
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48 |
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ARTICLE VI ADDITIONAL AGREEMENTS |
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48 |
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Section 6.1. Notification of Certain Matters |
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48 |
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Section 6.2. Access |
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48 |
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Section 6.3. Consents and Approvals |
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49 |
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Section 6.4. Publicity |
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52 |
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Section 6.5. Directors’ and Officers’ Insurance and Indemnification |
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52 |
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Section 6.6. Section 16 |
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54 |
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Section 6.7. Obligations of Purchaser |
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54 |
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Section 6.8. Employee Benefits Matters |
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54 |
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Section 6.9. Termination of 401(k) Plan |
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55 |
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Section 6.10. Rule 14d-10(d) |
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56 |
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Section 6.11. Stock Exchange De-listing and De-registration |
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56 |
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Section 6.12. Other Actions by the Company |
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56 |
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Section 6.13. Cooperation Regarding Financing |
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56 |
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Table of Contents (Cont’d)
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ARTICLE VII CONDITIONS |
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57 |
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Section 7.1. Conditions to Each Party’s Obligations to Effect the Merger |
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57 |
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Section 7.2. Failure of Conditions |
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58 |
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ARTICLE VIII TERMINATION |
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58 |
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Section 8.1. Termination |
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58 |
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Section 8.2. Effect of Termination |
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60 |
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ARTICLE IX MISCELLANEOUS |
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62 |
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Section 9.1. Amendment and Modification; Waiver |
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62 |
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Section 9.2. No Survival of Representations and Warranties |
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62 |
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Section 9.3. Expenses |
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62 |
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Section 9.4. Notices |
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62 |
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Section 9.5. Certain Definitions |
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64 |
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Section 9.6. Terms Defined Elsewhere |
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71 |
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Section 9.7. Interpretation |
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73 |
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Section 9.8. Counterparts |
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74 |
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Section 9.9. Entire Agreement; No Third-Party Beneficiaries |
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74 |
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Section 9.10. Severability |
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74 |
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Section 9.11. Governing Law; Jurisdiction |
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74 |
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Section 9.12. Waiver of Jury Trial |
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75 |
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Section 9.13. Assignment |
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75 |
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Section 9.14. Enforcement; Specific Performance; Remedies |
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75 |
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Section 9.15. Performance Guaranty |
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76 |
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ANNEX
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Annex I |
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Conditions to the Offer |
EXHIBITS
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Exhibit A |
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Form of Articles of Incorporation of the Surviving Corporation |
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Exhibit B |
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Form of Bylaws of the Surviving Corporation |
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is dated as of December 10, 2007,
by and among Eisai Co., Ltd., a corporation organized under the laws of Japan (“Parent”),
Jaguar Acquisition Corp., a Minnesota corporation and an indirect wholly-owned subsidiary of Parent
(“Purchaser”), and MGI PHARMA, INC., a Minnesota corporation (the “Company”).
W I T N E S S E T H :
WHEREAS, each of Parent and the Board of Directors of each of Purchaser and the Company has
approved, and the Board of Directors of each of Purchaser and the Company deems it advisable and in
the best interests of each respective corporation and its shareholders to consummate, the
acquisition of the Company by Parent on the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, Purchaser has agreed, on the terms and subject to the conditions set forth in this
Agreement, to commence a tender offer (the “Offer”) to purchase all of the outstanding
shares of the common stock, par value $0.01 per share, of the Company (“Common Stock”),
including the associated preferred stock purchase rights (the “Rights”) issued pursuant to
the Rights Agreement, dated as of July 14, 1998 (as amended as of March 14, 2000), between the
Company and Xxxxx Fargo Bank Minnesota, N.A. (formerly Norwest Bank Minnesota, N.A.), as rights
agent (as amended, the “Rights Agreement”) (the shares of the Common Stock, together with
the Rights being referred to collectively as the “Shares”), at a price per Share of $41.00
(such price or any higher price per Share that may be paid pursuant to the Offer being hereinafter
referred to as the “Offer Price”), subject to any withholding of Taxes required by
applicable law, net to the seller in cash without interest;
WHEREAS, following the consummation of the Offer, on the terms and subject to the conditions
set forth in this Agreement, Purchaser will be merged with and into the Company with the Company as
the Surviving Corporation (the “Merger,” and together with the Offer, the Top-Up Option and
the other transactions contemplated by this Agreement, collectively, the “Transactions”),
in accordance with the Minnesota Business Corporation Act (the “MBCA”), and in accordance
therewith each issued and outstanding Share not owned directly or indirectly by Parent, Purchaser
or any Company Subsidiary and not constituting Dissenting Shares will be converted into the right
to receive the Offer Price in cash without interest, subject to any withholding of Taxes required
by applicable law, in accordance with the terms hereof;
WHEREAS, the Board of Directors of the Company (the “Company Board of Directors”) has,
by resolutions duly adopted, unanimously (i) determined that the Transactions are advisable and in
the best interests of the Company and the Company’s shareholders, (ii) approved this Agreement and
the Transactions, including the Offer, the Top-Up Option, the receipt of the Note and the Merger,
and (iii) determined to recommend that the Company’s shareholders tender their Shares to Purchaser
pursuant to the Offer and, to the extent applicable, approve and adopt this Agreement;
WHEREAS, each of Parent and the Board of Directors of Purchaser has approved, and the Board of
Directors of Purchaser has determined that this Agreement and the Transactions, including the Offer
and the Merger, are advisable; and
WHEREAS, Parent, Purchaser and the Company desire to (i) make certain representations and
warranties in connection with the Offer and the Merger, (ii) make certain covenants and agreements
in connection with the Offer and the Merger, and (iii) prescribe various conditions to the Offer
and the Merger;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this
Agreement and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement agree as follows:
ARTICLE I
THE OFFER AND THE MERGER
Section 1.1. The Offer.
(a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1
and none of the events set forth in paragraph (2)(iii) of Annex I shall exist or have occurred and
be continuing, as promptly as practicable (and, in any event, on or prior to December 21, 2007)
after the date of this Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence
(within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) the Offer to purchase for cash all outstanding Shares at the Offer
Price.
(b) Subject to the terms and conditions of this Agreement, promptly after the latest of (i)
the earliest date as of which Purchaser is permitted under applicable law to accept for payment
Shares validly tendered and not withdrawn pursuant to the Offer, (ii) the earliest date as of which
each of the conditions and requirements set forth in Annex I (the “Offer Conditions”) has
been satisfied, or waived by Parent or Purchaser, and (iii) the Expiration Date, Purchaser shall
(and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept
for payment and pay for all Shares (without interest) validly tendered and not withdrawn in
accordance with the terms of the Offer that Purchaser becomes obligated to purchase pursuant to the
Offer. The obligation of Purchaser to accept for payment and pay for Shares (without interest)
tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction, or waiver by
Parent or Purchaser, of each of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”)
that contains, among other things, the terms set forth in this Agreement, the Minimum Condition and
the other conditions and requirements set forth in Annex I. Purchaser expressly reserves the right
to (x) increase the Offer Price and (y) waive any Offer Conditions and make any other changes to
the terms and conditions of the Offer; provided, however, that unless otherwise
provided by this Agreement, without the prior written consent of the Company, Purchaser shall not
(i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer,
(iii) decrease the number of Shares sought to be purchased in the Offer, (iv) impose
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conditions or requirements to the Offer that are different than or in addition to the Offer
Conditions, or amend or modify any of the Offer Conditions, in either case in a manner that
adversely affects or reasonably would be expected to adversely affect the holders of Shares, (v)
change or waive the Minimum Condition, or (vi) extend or otherwise change the expiration date of
the Offer other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer
shall expire at midnight (
New York City time) on the date that is 20 business days following the
commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) of the Offer
(the “
Initial Expiration Date”) or, in the event the Initial Expiration Date has been
extended pursuant to and in accordance with the terms of this Agreement, the date to which the
Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial
Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement,
is referred to as the “
Expiration Date”).
(e) The Offer shall or may be extended from time to time, as the case may be, as follows:
(i) If on or prior to any then scheduled Expiration Date, all of the Offer Conditions
(including the Minimum Condition and all other Offer Conditions) shall not have been
satisfied, or waived by Parent or Purchaser if permitted hereunder, Purchaser shall (and
Parent shall cause Purchaser to), at the request of the Company, extend the Offer for one or
more successive periods of not more than 10 business days each in order to permit the
satisfaction of such conditions, each until the earlier of (x) the termination of this
Agreement pursuant to Section 8.1 and (y) (A) the date that is 180 days after commencement
of the Offer (the “Initial Outside Date”) or (B) the date that is 270 days after
commencement of the Offer in the event that the HSR Condition and/or the Governmental
Approval Condition shall not have been satisfied, or waived by Parent or Purchaser if
permitted hereunder, by the Initial Outside Date (the “Extended Outside Date”);
(ii) Purchaser may, in its sole discretion, extend the Offer for one or more successive
periods of not more than 10 business days each, if at any otherwise scheduled Expiration
Date any of the Offer Conditions shall not have been satisfied, or waived by Parent or
Purchaser if permitted hereunder, until the termination of this Agreement pursuant to
Section 8.1; and
(iii) Purchaser shall extend the Offer for any period or periods required by applicable
law, rule, regulation, interpretation or position of the Securities or Exchange Commission
(the “SEC”) or its staff or NASDAQ or its staff.
(f) Purchaser may, in its sole discretion, provide for a “subsequent offering period” in
accordance with Rule 14d-11 promulgated under the Exchange Act. In the event that more than 80% of
the then outstanding Shares have been validly tendered and not withdrawn pursuant to the Offer
following the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to), at the
request of the Company, provide for a “subsequent offering period” in accordance with Rule 14d-11
promulgated under the Exchange Act of at least 10 business days
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immediately following the Expiration Date; provided, that Purchaser shall not be
required to make available such a “subsequent offering period” in the event that, prior to the
commencement of such “subsequent offering period,” Parent, Purchaser and their respective related
organizations (as defined in Section 302A.011, Subd. 25 of the MBCA), in the aggregate, own more
than 90% of the outstanding Shares. Subject to the terms and conditions of this Agreement and the
Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all
Shares that are validly tendered and not withdrawn pursuant to the Offer during such “subsequent
offering period” promptly after any such Shares are tendered during such “subsequent offering
period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in
a manner consistent with the terms of this Section 1.1(f).
(g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the
prior written consent of the Company, except in the event that this Agreement is terminated
pursuant to Section 8.1.
(h) In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall
(and Parent shall cause Purchaser to) promptly (and in any event within 24 hours of such
termination) terminate the Offer and shall not acquire any Shares pursuant to the Offer.
(i) On the date of the commencement of the Offer (within the meaning of Rule 14d-2 promulgated
under the Exchange Act), Purchaser shall (and Parent shall cause Purchaser to) file with the SEC,
pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer
Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and
exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the
Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively,
together with any amendments and supplements thereto, the “Offer Documents”). Parent and
Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC
and disseminated to holders of the Shares, in each case as and to the extent required by the
Exchange Act. Each of Parent, Purchaser and the Company agrees to correct promptly any information
provided by it for use in the Offer Documents if and to the extent that such information shall have
become false or misleading in any material respect or as otherwise required by applicable law.
Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents, as so
corrected (if applicable), to be filed with the SEC and disseminated to holders of the Shares, in
each case as and to the extent required by the Exchange Act. The Company and its counsel shall be
given a reasonable opportunity to review the Schedule TO and the Offer Documents before they are
filed with the SEC, and Parent and Purchaser shall give due consideration to all reasonable
additions, deletions or changes suggested thereto by the Company and its counsel. In addition,
Parent and Purchaser shall provide the Company and its counsel with copies of any written comments,
and shall inform them of any oral comments, that Parent, Purchaser or their counsel may receive
from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents
promptly after receipt of such comments, and any written or oral responses thereto. Parent and
Purchaser shall give the Company and its counsel a reasonable opportunity to review any such
written responses and shall give due consideration to all reasonable additions, deletions or
changes suggested thereto by the Company and its counsel. Parent and Purchaser agree to use all
reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to
the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents
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of the Company Recommendation, as such Company Recommendation may be amended and until such
Company Recommendation may be withdrawn, in each case as permitted by this Agreement. If Purchaser
terminates or withdraws the Offer, or this Agreement is terminated prior to the purchase of Shares
in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of
Purchaser to return, all tendered Shares to the registered holders thereof.
(j) Purchaser shall (and Parent shall cause Purchaser to) timely file with the Commissioner of
Commerce of the State of Minnesota a registration statement relating to the Offer required to be
filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate the registration
statement as required by Chapter 80B of the Minnesota Statutes. The Company and Purchaser shall
(and Parent shall cause Purchaser to) promptly file with the Commissioner of Commerce of the State
of Minnesota all materials referred to in Section 80B.04 of the Minnesota Statutes.
(k) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split,
reverse stock split, stock dividend (including any dividend or distribution of securities
convertible into Common Stock), cash dividend, reorganization, recapitalization, reclassification,
combination or other like change with respect to Common Stock occurring on or after the date of
this Agreement and prior to the Acceptance Time, if any.
Section 1.2. Company Actions.
(a) Contemporaneous with the filing of the Schedule TO, the Company shall, in a manner that
complies with Rule 14d-9 promulgated under the Exchange Act, file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with
all amendments, supplements and exhibits thereto, the “Schedule 14D-9”) that shall, subject
to the provisions of Section 5.3(d) and Section 5.4(c), contain the Company Recommendation. The
Company further agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with the
SEC and disseminated to holders of Shares, in each case as and to the extent required by the
Exchange Act. Each of Parent, Purchaser and the Company agrees to correct promptly any information
provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have
become false or misleading in any material respect or as otherwise required by applicable law. The
Company further agrees to take all steps necessary to cause the Schedule 14D-9, as so corrected (if
applicable), to be filed with the SEC and disseminated to holders of Shares, in each case as and to
the extent required by the Exchange Act. Parent, Purchaser and their counsel shall be given a
reasonable opportunity to review the Schedule 14D-9 before it is filed with the SEC, and the
Company shall give due consideration to all reasonable additions, deletions or changes suggested
thereto by Parent, Purchaser and their counsel. In addition, the Company shall provide Parent,
Purchaser and their counsel with copies of any written comments, and shall inform them of any oral
comments, that the Company or its counsel may receive from time to time from the SEC or its staff
with respect to the Schedule 14D-9 promptly after the Company’s receipt of such comments, and any
written or oral responses thereto. The Company shall give Parent, Purchaser and their counsel a
reasonable opportunity to review any such written responses, and the Company shall give due
consideration to all reasonable additions, deletions or changes suggested thereto by Parent,
Purchaser and their
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counsel. The Company agrees to use all reasonable best efforts to respond promptly to any
comments of the SEC or its staff with respect to the Schedule 14D-9.
(b) In connection with the Offer, the Company shall promptly after execution of this Agreement
furnish or cause to be furnished to Parent and Purchaser (i) a list of the names and addresses of
the record holders of Shares as of the most recent practicable date, as well as mailing labels
containing such names and addresses and (ii) all lists of shareholders, security position lists,
computer files and all other information identifying the beneficial owners of Shares as of the most
recent practicable date which the Company or its transfer agent has in its possession or control or
can obtain without unreasonable effort or expense. The Company shall furnish or cause to be
furnished to Parent and Purchaser such additional information (including updates of the items
provided pursuant to the preceding sentence) and such other assistance as Parent or Purchaser or
their respective agents may reasonably request for the purpose of communicating the Offer to the
record and beneficial owners of Shares. Subject to the requirements of applicable law and the
Confidentiality Agreement, and except for such steps as are necessary to disseminate the Offer
Documents and any other documents necessary to consummate the Offer, the Merger and the other
Transactions, Purchaser shall hold in confidence the information contained in any such labels,
listings and files, shall use such information only in connection with the Offer, the Merger and
the other Transactions, and, if this Agreement shall be terminated, shall, upon the Company’s
written request, promptly deliver to the Company the original and all copies of such information
then in its possession or control.
Section 1.3. Board of Directors.
(a) Upon Purchaser accepting for payment and paying for any Shares tendered and not withdrawn
pursuant to the Offer (the “Acceptance Time”), and at all times thereafter, subject to
compliance with the provisions of the Company Governing Documents, applicable law and the
applicable Marketplace Rules of The NASDAQ Stock Market LLC (the “NASDAQ”), Purchaser shall
be entitled to designate such number of directors, rounded up to the next whole number, on the
Company Board of Directors as is equal to the product of (i) the total number of directors on the
Company Board of Directors (after giving effect to the directors appointed as a result of
designations by Purchaser pursuant to this sentence) multiplied by (ii) the percentage that the
aggregate number of Shares beneficially owned by Parent, Purchaser and any of their affiliates
bears to the total number of Shares then outstanding (disregarding any unvested and unexercisable
Company Options, Company Tandem Option-SARs, RSUs, and Warrants and all other unvested rights to
acquire shares of the Common Stock). As used in this Agreement, the term “beneficial
ownership” (and its correlative terms) shall have the meanings assigned to such terms in Rule
13d-3 under the Exchange Act. The Company shall, upon any exercise of such right by Purchaser,
take all such actions as are necessary or desirable to (A) appoint to the Company Board of
Directors the individuals designated by Purchaser and permitted to be so designated by the first
sentence of this Section 1.3(a), including promptly filling vacancies or newly created
directorships on the Company Board of Directors, promptly increasing the size of the Company Board
of Directors (including by action of the Company Board of Directors and by the amendment of the
Company Bylaws, if necessary, so as to increase the size of the Company Board of Directors) and/or
promptly securing the resignations of such number of its incumbent directors as are necessary or
desirable to enable Purchaser’s designees to be so appointed to the Company Board of Directors, and
(B) cause Purchaser’s designees to be so appointed at such
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time. The Company shall, upon Purchaser’s request following the Acceptance Time, also cause
Persons designated by Purchaser to constitute the same percentage (rounded up to the next whole
number) as is on the Company Board of Directors of the members of (I) each committee of the Company
Board of Directors, (II) each board of directors (or similar body) of each Company Subsidiary, and
(III) each committee (or similar body) of each such board of directors (or similar body), in each
case to the full extent permitted by the provisions of the Company Governing Documents, applicable
law and the NASDAQ Marketplace Rules. From and after the Acceptance Time and until the Effective
Time, (1) Parent, Purchaser and the Company shall take all actions necessary to ensure that the
composition of the Company Board of Directors and each committee thereof is consistent with the
requirements of Article VIII of the Company Charter and (2) the Company shall take all action
necessary to elect to be treated as a “controlled company” as defined by NASDAQ Marketplace Rule
4350(c)(5) and make all necessary filings and disclosures associated with such status. The Company
shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f)
of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under
this Section 1.3(a), including mailing to shareholders (together with the Schedule 14D-9) the
information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder to
enable Purchaser’s designees to be appointed to the Company Board of Directors. Purchaser shall
supply the Company with information with respect to Purchaser’s designees and Parent’s and
Purchaser’s respective officers, directors and affiliates to the extent required by Section 14(f)
of the Exchange Act and Rule 14f-1 promulgated thereunder. The provisions of this Section 1.3(a)
are in addition to and shall not limit any rights that any of Purchaser, Parent or any of their
respective affiliates may have as a holder or beneficial owner of Shares as a matter of applicable
law with respect to the election or appointment of directors or otherwise.
(b) In the event that Purchaser’s designees are appointed to the Company Board of Directors
pursuant to Section 1.3(a), then, subject to the Company Governing Documents, until the Effective
Time, the Company shall cause the Company Board of Directors to maintain at least such number of
“independent directors,” as defined by the NASDAQ Marketplace Rules, as may be required by the
NASDAQ Marketplace Rules or the federal securities laws, at least one of whom shall be an “audit
committee financial expert,” as defined in Item 401(h) of Regulation S-K and the instructions
thereto (any such “independent directors” as of the date of this Agreement (and their successors as
provided below), the “Continuing Directors”);
provided, however, that if
any Continuing Director is unable to serve due to death, disability or resignation, the Company,
Purchaser and Parent shall take all necessary action (including creating a committee of the Company
Board of Directors) so that the entire Company Board of Directors shall be entitled to appoint
another Person or Persons to fill such vacancy or vacancies, and such Person or Persons thereafter
shall be deemed to be a Continuing Director for purposes of this
Agreement; provided, however, that
if a majority of the Continuing Directors then in office did not approve such Person or Persons,
then such Person or Persons shall not be deemed to be a Continuing Director. If no Continuing
Director then remains, the other directors shall appoint Persons to fill such vacancies and such
Persons shall be deemed Continuing Directors for all purposes of this Agreement. Notwithstanding
anything in this Agreement to the contrary, if Purchaser’s designees constitute a majority of the
Company Board of Directors after the Acceptance Time and prior to the Effective Time, then the
affirmative vote of a majority of the Continuing Directors and a majority of the directors who
satisfy the requirements of the
second sentence of Article VIII
of the Company Charter shall (in addition to the approval
rights
- 7 -
of the Company Board of Directors or the shareholders of the Company as may be required by
the Second Amended and Restated Articles of Incorporation of the Company, as amended (the
“Company Charter”), the Restated Bylaws of the Company, as amended (the “Company
Bylaws”, and together with the Company Charter, the “Company Governing Documents”) or
applicable law) be required (i) for the Company to amend or terminate this Agreement, (ii) to
exercise or waive any of the Company’s rights, benefits or remedies hereunder or to take any action
hereunder, or (iii) to amend the Company Governing Documents, in each case if such action adversely
affects, or reasonably would be expected to adversely affect, the holders of Shares (other than
Parent or Purchaser); provided, that Purchaser and Parent shall take all actions as may be
necessary to give effect to the foregoing. At all times subsequent to the date of this Agreement
and prior to the Effective Time, the Continuing Directors (including those directors deemed to be
Continuing Directors by virtue of this Section 1.3) shall, without any further action by the
Company or the Company Board of Directors, constitute a committee of the Board of Directors (which
committee of the Board of Directors has been established as of the date of this Agreement by action
of the Board of Directors) and all actions contemplated by this Agreement to be taken by the
Continuing Directors or a designated percentage of the Continuing Directors shall be taken, and
shall be deemed to have been taken, by such Continuing Directors acting as a committee of the
Company Board of Directors.
Section 1.4. The Top-Up Option.
(a) The Company hereby grants to Purchaser an irrevocable option (the “Top-Up
Option”), exercisable only on the terms and subject to the conditions set forth in this
Agreement, to purchase that number of Shares (the “Top-Up Option Shares”) equal to the
lowest number of Shares that, when added to the number of Shares owned by Parent, Purchaser and
their related organizations (as defined in Section 302A.011, Subd. 25 of the MBCA) at the time of
such exercise, shall constitute one Share more than the number of Shares necessary for Purchaser to
be merged with and into the Company pursuant to Section 302A.621 of the MBCA (a “Short Form
Merger”), at a price per Share equal to the Offer Price.
(b) The Top-Up Option shall be exercisable, in whole, but not in part, at any one time during
the 10 business day period commencing on the business day after the later of the Acceptance Time or
the expiration of the last “subsequent offering period” contemplated by Section 1.1(f);
provided, however, that notwithstanding anything contained in this Agreement to the
contrary the Top-Up Option shall not be exercisable if (i) the issuance of the Top-Up Option Shares
would require shareholder approval under the rules of NASDAQ, (ii) the number of Top-Up Option
Shares would exceed the number of authorized but unissued Shares or (iii) after issuance of Shares
pursuant to the Top-Up Option, it will be insufficient to allow Purchaser to effect the Short Form
Merger; provided, further, that the Top-Up Option shall terminate concurrently with
the termination of this Agreement pursuant to Section 8.1.
(c) In the event Purchaser wishes to exercise the Top-Up Option, Purchaser shall so notify the
Company in writing, and shall set forth in such notice (i) the number of Shares owned by Parent,
Purchaser and their respective related organizations (as defined in Section 302A.011, Subd. 25 of
the MBCA) immediately preceding the purchase of the Top-Up Option Shares and (ii) the place and
time, which shall be within five business days of the exercise of the
Top-Up Option, for the closing of the purchase of the Top-Up Option Shares (the “Top-Up
- 8 -
Closing”). The Company shall, as soon as practicable following receipt of such notice, notify
Parent and Purchaser in writing of the number of Shares then outstanding and the number of Top-Up
Option Shares. At the Top-Up Closing, Purchaser shall pay the Company the aggregate price required
to be paid for the Top-Up Option Shares by delivery of, at Purchaser’s option, (A) immediately
available funds by wire transfer to an account designated by the Company, (B) a promissory note
(the “Note”), bearing interest at the 6 Month USD LIBOR Rate, and due six months after the
Top-Up Closing, or (C) any combination thereof, and the Company shall cause to be issued to
Purchaser a certificate representing the Top-Up Option Shares.
(d) Parent and Purchaser acknowledge that the Shares which Purchaser may acquire upon exercise
of the Top-Up Option will not be registered under the U.S. securities laws and will be issued in
reliance upon an exemption thereunder for transactions not involving a public offering. Parent and
Purchaser represent and warrant to the Company that Purchaser is, or will be upon the purchase of
the Top-Up Option Shares, an “accredited investor,” as defined in Rule 501 of Regulation D under
the Securities Act. Purchaser agrees that the Top-Up Option and the Top-Up Options Shares to be
acquired upon exercise of the Top-Up Option are being and will be acquired by Purchaser for the
purpose of investment and not with a view to, or for resale in connection with, any distribution
thereof (within the meaning of the Securities Act).
Section 1.5. The Merger.
(a) Subject to the terms and conditions of this Agreement, and in accordance with the MBCA, at
the Effective Time the Company and Purchaser shall consummate the Merger pursuant to which
(i) Purchaser shall be merged with and into the Company and the separate corporate existence of
Purchaser shall thereupon cease, (ii) the Company shall be the surviving corporation in the Merger
and shall continue to be governed by the MBCA and (iii) 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 Section 1.5(b). The corporation surviving the
Merger is sometimes referred to herein as the “Surviving Corporation.” The Merger shall
have the effects set forth in the MBCA.
(b) At the Effective Time (i) the articles of incorporation of the Surviving Corporation shall
be the articles of incorporation set forth as Exhibit A until thereafter changed or amended
as provided therein or by applicable law and (ii) the bylaws of the Surviving Corporation shall be
the bylaws set forth as Exhibit B until thereafter changed or amended as provided therein
or by applicable law.
Section 1.6. Effective Time. Parent, Purchaser and the Company shall cause appropriate
articles of merger (the “Articles of Merger”) to be executed and filed on the Closing Date
(or on such other date as Parent and the Company may agree) with the Secretary of State of the
State of Minnesota in accordance with the relevant provisions of the MBCA. The Merger shall become
effective at the time the Articles of Merger are filed with the Secretary of State of the State of
Minnesota or at such later date and time as is agreed upon by the parties hereto and specified in
the Articles of
Merger. The date and time at which the Merger shall become effective is referred to as the
“Effective Time.”
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Section 1.7. Closing. The closing of the Merger (the “
Closing”) will take place at
10:00 a.m.,
New York City time, on a date to be specified by the parties hereto, such date to be no
later than the second business day after satisfaction or waiver of all of the conditions set forth
in Article VII (the “
Closing Date”), at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless another date, time or place is agreed to in writing by the
parties hereto.
Section 1.8. Directors and Officers of the Surviving Corporation. The directors of Purchaser
immediately prior to the Effective Time shall, from and after the Effective Time, be the directors
of the Surviving Corporation, and the officers of the Company immediately prior to the Effective
Time shall continue as the officers of the Surviving Corporation from and after the Effective Time,
in each case until their respective successor has been duly appointed and qualified, or until their
earlier death, resignation or removal in accordance with the Surviving Corporation’s articles of
incorporation and bylaws. The Company shall cause all directors of the Company, other than those
directors, if any, as shall be designated by Parent or Purchaser in writing prior to the Effective
Time, to resign immediately before the Effective Time.
Section 1.9. Subsequent Actions. If at any time after the Effective Time the Surviving
Corporation shall determine, in its sole discretion, that any deeds, bills of sale, instruments of
conveyance, assignments, assurances or other actions or things are necessary or desirable to vest,
perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest
in, to or under any of the rights, properties or assets of either of the Company or Purchaser
acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the
Merger, or otherwise to carry out this Agreement and the Transactions, then the officers and
directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and
on behalf of either the Company or Purchaser, all such deeds, bills of sale, instruments of
conveyance, assignments and assurances and to take and do, in the name and on behalf of each such
corporation or otherwise, all such other actions and things as may be necessary or desirable to
vest, perfect or confirm of record or otherwise any and all right, title or interest in, to and
under such rights, properties or assets in the Surviving Corporation, or otherwise to carry out
this Agreement and the Transactions.
Section 1.10. Shareholders’ Meeting. If approval of the shareholders of the Company is
required under the MBCA to consummate the Merger:
(a) As promptly as practicable following the Acceptance Time and the expiration of any
“subsequent offering period” provided by Purchaser pursuant to and in
accordance with this Agreement, if applicable, and in any event within 14 days after the
Acceptance Time and the expiration of such “subsequent offering period” provided by Purchaser
pursuant to and in accordance with this Agreement, the Company shall prepare and file with the SEC
in preliminary form a proxy or information statement for the Special Meeting (together with any
amendments thereof or supplements thereto and any other required solicitation materials or
information, the “Proxy Statement”) relating to the Merger and this Agreement;
provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity
to review the Proxy Statement before it is filed with the SEC and the Company shall give due
consideration to all reasonable additions, deletions or changes thereto suggested by Parent,
Purchaser and their counsel. Subject to the provisions of Section 5.4(c), the Company shall include
in the Proxy
- 10 -
Statement the recommendation of the Company Board of Directors that shareholders of
the Company vote in favor of the approval and adoption of this Agreement. The Company shall use
its reasonable best efforts to obtain and furnish the information required to be included by the
SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments
made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser
and their counsel with copies of any written comments, and shall inform them of any oral comments,
that the Company or its counsel may receive from time to time from the SEC or its staff with
respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any
written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable
opportunity to review any such written responses and the Company shall give due consideration to
all reasonable additions, deletions or changes thereto suggested by Parent, Purchaser and their
counsel. The Company, Parent and Purchaser agree to correct promptly any information in the Proxy
Statement if and to the extent that it shall have become false or misleading in any material
respect or as otherwise required by applicable law, and the Company further agrees to cause the
Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such
correction is made following the mailing of the Proxy Statement as contemplated by
Section 1.10(b)(ii), mailed to holders of Shares, in each case as and to the extent required by the
Exchange Act or the SEC (or its staff).
(b) The Company, acting through (or upon authorization by) the Company Board of Directors,
shall, in accordance with and subject to the requirements of the Company Governing Documents and
applicable law:
(i) (A) as promptly as practicable following the Acceptance Time and the expiration of
any “subsequent offering period” provided by Purchaser pursuant to and in accordance with
this Agreement, if applicable, duly set a record date for, call and give notice of a special
meeting of its shareholders (the “Special Meeting”) for the purpose of considering
and taking action upon this Agreement (with the record date and meeting date set in
consultation with Purchaser), and (B) as promptly as practicable following the Acceptance
Time and the expiration of any “subsequent offering period” provided by Purchaser pursuant
to and in accordance with this Agreement, if applicable, convene and hold the Special
Meeting;
(ii) cause the definitive Proxy Statement to be mailed to its shareholders as promptly
as practicable after the date that the SEC staff advises that it has no further comments
thereon or that the Company may commence mailing the Proxy Statement; and
(iii) use its reasonable best efforts to secure any approval in favor of the approval
and adoption of the Agreement by the shareholders of the Company that is required by the
Company Governing Documents and the MBCA and any other applicable law to effect the Merger.
(c) The Company shall not postpone or adjourn the Special Meeting except that, after receiving
the written consent of Parent (which consent shall not be unreasonably withheld or delayed), the
Company may adjourn or postpone the Special Meeting to the extent legally necessary to ensure that
any required supplement or amendment to the Proxy Statement is
- 11 -
provided to the Company’s
shareholders or if as of the time for which the Special Meeting is originally scheduled (as set
forth in the Proxy Statement) there are insufficient Shares represented (either in person or by
proxy) to constitute a quorum necessary to conduct the business of the Special Meeting. After the
Acceptance Time, the Company shall prepare and distribute as promptly as practicable any such
required supplement or amendment to the Proxy Statement and following any such adjournment or
postponement of the Special Meeting, the Company shall take all action necessary to reconvene the
Special Meeting as promptly as practicable after such adjournment or postponement.
(d) At the Special Meeting or any postponement or adjournment thereof, Parent shall vote, or
cause to be voted, all of the Shares then owned by it, Purchaser or any of their respective
affiliates in favor of the approval and adoption of this Agreement and to deliver or provide, in
its capacity as a shareholder of the Company or otherwise, any other approvals that are required by
the MBCA and any other applicable law to effect the Merger.
Section 1.11. Merger Without Meeting of Shareholders. Notwithstanding the terms of
Section 1.10, in the event that Parent, Purchaser and their respective related organizations (as
defined in Section 302A.011, Subd. 25 of the MBCA) shall own, in the aggregate, at least 90% of
the outstanding Shares (the “Short Form Threshold”), following the Acceptance Time and the
expiration of any “subsequent offering period” provided by Purchaser pursuant to and in accordance
with this Agreement, if applicable, and the exercise of the Top-Up Option, if applicable, the
parties hereto shall take all necessary and appropriate action to cause the Merger to become
effective as promptly as practicable thereafter, without a meeting of shareholders of the Company,
in accordance with Section 302A.621 of the MBCA.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1. Conversion of Capital Stock. At the Effective Time, by virtue of the Merger and
without any action on the part of the holders of any securities of the Company or common stock, par
value $0.01 per share, of Purchaser (the “Purchaser Common Stock”), the manner and basis of
converting the Shares and the Purchaser Common Stock shall be as follows:
(a) Each share of Purchaser Common Stock issued and outstanding immediately prior to the
Effective Time shall be converted into and become one fully paid and nonassessable share of common
stock, par value $0.01 per share, of the Surviving Corporation, which, together with the Shares
owned by any Subsidiary of Parent (other than Purchaser), Purchaser or the Company as contemplated
by Section 2.1(b), will constitute the only issued and outstanding shares of capital stock of the
Surviving Corporation immediately after the Effective Time.
(b) All Shares that are owned by Parent and Purchaser (not held on behalf of third parties)
shall be cancelled and shall cease to exist, and no consideration shall be delivered in exchange
therefor, and all Shares owned by any Subsidiary of Parent (other than Purchaser), Purchaser or the
Company shall remain outstanding and unaffected by the Merger.
- 12 -
(c) Each Share (other than Shares to be cancelled in accordance with Section 2.1(b) and other
than Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall be
converted into the right to receive the Offer Price, payable to the holder thereof in cash, without
interest (the “Merger Consideration”). From and after the Effective Time, all such Shares
shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and
each holder of a certificate formerly representing any such Shares shall cease to have any rights
with respect thereto, other than the right to receive the Merger Consideration therefor upon the
surrender of such certificate in accordance with Section 2.2, without interest thereon.
(d) The Merger Consideration shall be adjusted appropriately in the event the Company changes
the number of Shares, or securities convertible or exchangeable into or exercisable for Shares,
issued and outstanding immediately prior to the Effective Time as a result of a stock split,
reverse stock split, stock dividend (including any dividend or distribution of securities
convertible into the Common Stock), cash dividend, reorganization, recapitalization,
reclassification, combination or other like change with respect to the Common Stock occurring on or
after the date of this Agreement and prior to the Effective Time.
Section 2.2. Exchange of Certificates.
(a) Prior to the Effective Time, Parent shall designate a bank or trust company that is
reasonably acceptable to the Company to act as the payment agent in connection with the Merger (the
“Paying Agent”). At the Effective Time, Parent or Purchaser shall deposit, or cause to be
deposited, with the Paying Agent, for the benefit of the holders of Shares, cash in an amount
sufficient to pay the aggregate Merger Consideration required to be paid pursuant to this Agreement
plus cash in an amount sufficient to pay holders of Company Options, Company Tandem Option-SARs,
RSUs and Warrants in accordance with the terms of this Agreement (such cash being referred to as
the “Payment Fund”). The Payment Fund shall be invested by the Paying Agent as directed by
Parent; provided, that such investment shall be in (i) direct obligations of, or guaranteed
by, the United States of America, (ii) obligations for which the full faith and credit of the
United States of America is pledged to provide for payment of all principal and interest, or (iii)
commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or
Standard & Poor’s Corporation, respectively, certificates of deposit, bank repurchase agreements or
banker’s acceptances of commercial banks with capital
exceeding $1 billion, or money market funds having a rating in the highest investment category
granted by a recognized credit rating agency at the time of acquisition, pending payment thereof by
the Paying Agent to the holders of the Shares, Company Options, Company Tandem Option-SARs, RSUs
and Warrants; provided, that no gain or loss thereon shall affect the amounts payable to
the holders of Shares, Company Options, Company Tandem Option-SARs, RSUs or Warrants following the
Effective Time and Parent shall promptly deposit additional cash into the Payment Fund in an amount
that is equal to the deficiency in the amount of cash required to satisfy fully all such cash
payment obligations. Earnings (including interest and other income) resulting from such investments
shall be the sole and exclusive property of Parent, and no part of such earnings shall accrue to
the benefit of holders of Shares, Company Options, Company Tandem Option-SARs, RSUs or Warrants.
- 13 -
(b) The Paying Agent shall, within five business days following the Effective Time, mail to
each holder of record of a certificate or certificates that immediately prior to the Effective Time
represented outstanding Shares (the “Certificates”) and whose Shares were converted
pursuant to Section 2.1(c) into the right to receive the Merger Consideration (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Paying Agent and shall be in
such customary form and have such other provisions as Parent may reasonably specify) and (ii)
instructions for effecting the surrender of the Certificates in exchange for payment of the Merger
Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent or to such
other agent or agents as may be appointed by Parent in accordance with the terms of the letter of
transmittal, together with such letter of transmittal, duly executed, the holder of such
Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each
Share formerly represented by such Certificate and the Certificate so surrendered shall forthwith
be cancelled. Such payment shall be made to the holder of record within five business days of
receipt of a duly executed letter of transmittal by the Paying Agent and shall be made by either
bank check or electronic wire transfer, at the option of the holder of record. No interest will be
paid or accrued on any amount payable upon due surrender of the Certificates. If payment of the
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 precedent to payment that (x) the Certificate so
surrendered shall be properly endorsed or otherwise shall be in proper form for transfer and
(y) the Person requesting such payment shall have paid any transfer and other similar Taxes
required by reason of the payment of the Merger Consideration to a Person other than the registered
holder of the Certificate surrendered or shall have established to the satisfaction of the
Surviving Corporation that such Tax either has been paid or is not required to be paid. Until
surrendered as contemplated by this Section 2.2, each Certificate shall be deemed at any time after
the Effective Time to represent only the right to receive the Merger Consideration in cash as
contemplated by this Section 2.2, without interest thereon.
(c) At the Effective Time, the stock transfer books of the Company shall be closed and
thereafter there shall be no further registration of transfers of Shares that were outstanding
immediately prior to the Effective Time on the records of the Company. From and after the
Effective Time, the holders of Certificates outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such Shares except as otherwise provided for in this
Agreement or by applicable law. If, after the Effective Time, Certificates are
presented to the Surviving Corporation, Parent or the Paying Agent for any reason, they shall
be cancelled and exchanged as provided in this Article II.
(d) At any time following six months after the Effective Time, the Paying Agent shall deliver
to Parent any portion of the Payment Fund (including any proceeds of any investment thereof) made
available to the Paying Agent and not disbursed (or for which disbursement is pending) to holders
of Certificates, and thereafter such holders shall be entitled to look only to the Surviving
Corporation (subject to abandoned property, escheat or other similar laws) and only as general
creditors thereof with respect to the Merger Consideration payable upon due surrender of their
Certificates, together with a duly executed letter of transmittal, 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 holder of a
- 14 -
Certificate for any amount properly delivered to a
public official pursuant to any applicable abandoned property, escheat or similar law.
(e) Notwithstanding anything in this Agreement to the contrary, Parent, Purchaser, the
Surviving Corporation and the Paying Agent, as the case may be, shall each be entitled to deduct
and withhold from the relevant Merger Consideration, Offer Price or any other amounts otherwise
payable pursuant to this Agreement to any holder of Shares such amounts that Parent, Purchaser, the
Surviving Corporation or the Paying Agent, as the case may be, 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”), the rules and regulations promulgated thereunder or any provision of applicable
state, local or foreign law. To the extent that amounts are so withheld by Parent, Purchaser, the
Surviving Corporation or the Paying Agent, as the case may be, such amounts shall be treated for
all purposes of this Agreement as having been paid to the holder of Shares in respect of which such
deduction and withholding was made.
(f) In the event that any Certificates shall have been lost, stolen or destroyed, the Paying
Agent shall make payment in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, the Merger Consideration payable in
respect thereof pursuant to Section 2.1; provided, however, that Parent may, in its
discretion and as a condition precedent to the payment of such Merger Consideration, require the
owners of such lost, stolen or destroyed Certificates to deliver a written indemnity agreement
reasonably satisfactory to Parent and, if reasonably deemed advisable by Parent, a bond in such sum
as Parent may reasonably direct as indemnity against any claim that may be made against Parent, the
Surviving Corporation or the Paying Agent with respect to the Certificates alleged to have been
lost, stolen or destroyed.
Section 2.3. Dissenting Shares.
(a) Notwithstanding anything in this Agreement to the contrary, Shares outstanding immediately
prior to the Effective Time and held of record or beneficially by a Person who has not voted in
favor of approval and adoption of this Agreement and who is entitled to demand and properly demands
appraisal of such Shares (“Dissenting Shares”) pursuant to, and who complies in all
respects with, Sections 302A.471 and 302A.473 of the MBCA (the “Appraisal Rights”), shall
not be converted into or represent the right to receive the Merger Consideration for such
Dissenting Shares but instead shall be entitled to payment of the
fair value (including interest determined in accordance with Section 302A.473 of the MBCA) of
such Dissenting Shares in accordance with the Appraisal Rights; provided, however,
that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right
to dissent under the Appraisal Rights, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares shall
cease and such Dissenting Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable
solely for the right to receive, the Merger Consideration, without interest thereon.
(b)The Company shall serve prompt notice to Parent and its counsel of any demands, attempted
withdrawals of such demands and any other instruments served pursuant to applicable law that are received by the Company for Appraisal Rights
with respect to any Shares, and Parent shall have the right to participate in, and direct (provided, that such direction may not
- 15 -
result in a binding
obligation on the part of the Company that is effective prior to the Effective Time), all
negotiations and proceedings with respect to such demands. Prior to the Effective Time, the
Company shall not, without the prior written consent of Parent, make any payment with respect to,
or settle or compromise or offer to settle or compromise, any such demand, or agree to do any of
the foregoing.
Section 2.4. Treatment of Options; SARs, RSUs.
(a) Effective immediately after the Effective Time, the Company shall terminate the Company
Stock Plans, each as amended through the date of this Agreement. Each holder of an option to
purchase Shares, whether granted under the Company Stock Plans or otherwise, which option is not
accompanied by a tandem stock appreciation right (each, a “Company Option”) that is
outstanding and unexercised at the Effective Time shall become fully vested as of the Effective
Time and be entitled to receive from the Surviving Corporation as soon as practicable after the
Effective Time, in exchange for the cancellation of such Company Option, an amount in cash equal to
the excess, if any, of (x) the Offer Price over (y) the per share exercise price of such Company
Option, multiplied by the number of Shares subject to such Company Option as of the Effective Time.
(b) Each holder of an option to purchase Shares granted under the Company Stock Plans, which
option is accompanied by a tandem stock appreciation right (each, a “Company Tandem
Option-SAR”) that is outstanding and unexercised at the Effective Time shall become fully
vested as of the Effective Time and be entitled to receive from the Surviving Corporation as soon
as practicable after the Effective Time, in exchange for the cancellation of such Company Tandem
Option-SAR, an amount in cash equal to the greater of (i) (x) the Offer Price over (y) the per
share exercise price of such Company Tandem Option-SAR, multiplied by the number of Shares subject
to such Company Tandem Option-SAR as of the Effective Time, and (ii) the Acquisition Spread, as
such term is defined in the applicable Limited Stock Appreciation Right Grant Agreement underlying
each Company Tandem Option-SAR.
(c) Each RSU that is outstanding at the Effective Time shall become fully vested as of the
Effective Time and each holder of RSUs that are outstanding at the Effective Time shall be entitled
to receive from the Surviving Corporation as soon as practicable after the Effective Time, in
exchange for the cancellation of such RSUs, which shall occur by virtue of the consummation of the
Merger and without any action on the part of any such holder, an amount in cash equal to the Offer
Price times the number of RSUs held by such holder as of the Effective Time.
(d) All amounts payable pursuant to this Section 2.4 shall be paid without interest and shall
be net of all applicable withholding Taxes that Parent, Purchaser, the Surviving Corporation and
the Paying Agent, as the case may be, shall be required to deduct and withhold with respect to the
making of such payment under the Code, the rules and regulations promulgated thereunder or any
provision of applicable state, local or foreign law. To the extent that amounts are so withheld by
Parent, Purchaser, the Surviving Corporation or the Paying Agent, such amounts shall be treated for
all purposes of this Agreement as having been paid to the holders of the Company Options, Company
Tandem Option-SARs or RSUs in respect of
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which such deduction and withholding was made by Parent,
Purchaser, the Surviving Corporation or the Paying Agent.
Section 2.5. Treatment of Warrants. At the Effective Time, each Warrant that is issued and
outstanding immediately prior to the Effective Time and not terminated pursuant to its terms, by
virtue of the Merger and without any action on the part of the Company, Parent or the holder of any
such Warrant, shall be converted into the right to receive cash equal to the product obtained by
multiplying (x) the aggregate number of Shares for which such Warrant was exercisable immediately
prior to the Effective Time and (y) the excess, if any, of the Merger Consideration less the
Warrant Consideration, subject in each case to the provisions of the Warrants and applicable law.
Parent and the Company shall use their reasonable commercial efforts to effect the foregoing,
including using their reasonable commercial efforts to obtain any required consents from holders of
outstanding Warrants necessary to effect the foregoing pursuant to the terms of the applicable
Warrant. Any payments made pursuant to this Section 2.5 shall be net of all applicable withholding
Taxes that Parent, Purchaser, the Surviving Corporation or the Paying Agent, as the case may be,
shall be required to deduct and withhold with respect to the making of such payments under the
Code, the rules and regulations promulgated thereunder or any provision of applicable state, local
or foreign law. To the extent that amounts are so withheld by Parent, Purchaser, the Surviving
Corporation or the Paying Agent, as the case may be, such amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of Warrants in respect of which such deduction
and withholding was made by Parent, Purchaser, the Surviving Corporation or the Paying Agent, as
the case may be.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in (i) the Company’s disclosure schedule delivered to, and accepted by,
Parent immediately prior to the execution of this Agreement (the “Company Disclosure
Schedule”) or (ii) the Company SEC Documents filed with the SEC since January 1, 2007 (to the
extent such disclosure does not constitute a “risk factor” and was not included in any section
relating to forward-looking statements to the extent that they are cautionary, predictive or
forward-looking in nature), the Company represents and warrants to Parent and Purchaser as set
forth below. Each disclosure set forth in the Company Disclosure Schedule is identified by
reference to, or has been grouped under a heading referring to, a specific section of this
Agreement and disclosure made pursuant to any section thereof shall be deemed to be disclosed on
each of the other sections of the Company Disclosure Schedule solely to the extent
the applicability of the disclosure to such other section is reasonably apparent from the
disclosure made.
Section 3.1. Organization.
(a) The Company is a corporation duly organized, validly existing and in good standing under
the laws of the State of Minnesota and has the requisite corporate power and authority to own,
lease and operate its properties and assets and to conduct its business as presently conducted.
The Company is duly qualified or licensed to do business and is in good standing (with respect to
jurisdictions which recognize such concept) in each jurisdiction in
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which the nature of its
business or the ownership, leasing or operation of its properties or assets makes such
qualification or licensing necessary, except for those jurisdictions where the failure to be so
qualified or licensed or to be in good standing would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect. The Company previously has
provided or made available to Parent and Purchaser prior to the execution of this Agreement true
and complete copies of the Company Governing Documents, and each as so provided or made available
is in full force and effect. The Company is in compliance with the terms of the Company Governing
Documents.
(b) Each of the Company’s Subsidiaries (the “Company Subsidiaries”), together with the
jurisdiction of organization of each such Company Subsidiary, is listed on Section 3.1(b)
of the Company Disclosure Schedule. Each Company Subsidiary is a corporation, partnership, limited
liability company, trust or other organization duly incorporated or organized, validly existing
and, to the extent applicable, in good standing under the laws of the jurisdiction of its
incorporation or organization. Each of the Company Subsidiaries has the requisite corporate,
limited partnership, limited liability company or similar power and authority to own, lease and
operate its properties and assets and to carry on its business as presently conducted, except where
the failure to have such power and authority would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect. Each of the Company Subsidiaries
is duly qualified or licensed to do business, and is (to the extent applicable) in good standing,
in each jurisdiction where the character of the properties owned, leased or operated by it or the
conduct or nature of its business makes such qualification or licensing necessary, except for
jurisdictions in which the failure to be so qualified, licensed or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse
Effect. The Company is, directly or indirectly, the record and beneficial owner of all of the
outstanding shares of capital stock or other Equity Interests of each of the Company Subsidiaries.
Except as set forth in Section 3.1(b) of the Company Disclosure Schedule, all of such
shares and other Equity Interests so owned by the Company are duly authorized, validly issued,
fully paid and nonassessable and are owned by it free and clear of any Liens. Except as set forth
in Section 3.1(b) of the Company Disclosure Schedule, other than the Company Subsidiaries,
neither the Company nor any Company Subsidiary owns, directly or indirectly, any equity or other
ownership interest in any Person. To the knowledge of the Company, assuming neither Parent nor any
of its affiliates owns equity interests in any of the Persons identified in Section 3.1(b)
of the Company Disclosure Schedule, the Company does not own, directly or indirectly, any voting
interest in any Person that requires an additional filing by Parent under the HSR Act.
Section 3.2. Capitalization.
(a) The authorized capital stock of the Company consists of 140,000,000 shares of Common Stock
and 10,000,000 shares of preferred stock, par value $0.01 per share (the “Preferred
Stock”). As of November 30, 2007, 81,268,043 Shares were issued and outstanding and no shares
of the Preferred Stock were issued and outstanding.
(b) The Company has no Shares or shares of the Preferred Stock reserved for issuance, except
that as of November 30, 2007, (i) 10,290,243 Shares were reserved for issuance upon the exercise of
all outstanding Company Options, Company Tandem Option-SARs and
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RSUs, (ii) 319,206 shares of Common
Stock were reserved for issuance upon exercise of the Warrants, (iii) 8,269,940 Shares were
reserved for issuance upon conversion of MGI Convertible Notes, (iv) 26,516 Shares were reserved
for issuance upon conversion of the Guilford Convertible Notes and (v) 1,000,000 shares of the
Preferred Stock were designated as Series A Junior Participating Preferred Stock and reserved for
issuance pursuant to the terms and conditions of the Rights Agreement.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth a complete and
accurate list, as of the date of this Agreement, of all Company Stock Plans and all outstanding
Company Options, Company Tandem Option-SARs and RSUs (collectively, the “Company Stock
Rights”) and Restricted Stock, including the name of the holder, the name of the relevant
Company Stock Plan, the number of Shares, the date of grant and the exercise price, as applicable.
All of the outstanding shares of the Common Stock have been, and all Shares that may be issued
pursuant to the exercise of outstanding Company Stock Rights will be, when issued in accordance
with the terms thereof, duly authorized, validly issued, fully paid and non-assessable. Each
Company Option (i) was granted in compliance with all applicable laws and all of the terms and
conditions of the Company Stock Plans pursuant to which it was issued, (ii) has an exercise price
per share of the Common Stock equal to or greater than the fair market value of a share of the
Common Stock on the date of such grant, (iii) has a grant date identical to the date on which the
Company Board of Directors or its compensation committee actually awarded such Company Option, and
(iv) qualifies for the tax and accounting treatment afforded to such Company Option in the
Company’s tax returns and the Company SEC Documents, respectively.
(d) Section 3.2(d) of the Company Disclosure Schedule sets forth a listing of all
outstanding Warrants as of the date of this Agreement, their date of grant, their expiration date,
the number of Shares subject thereto and the exercise price therefor.
(e) Except as set forth above or in Section 3.2(e) of the Company Disclosure Schedule,
as of the date of this Agreement:
(i) there are no shares of capital stock of any Company Subsidiary authorized,
designated, issued or outstanding;
(ii) there are no (x) options, warrants, restricted stock, restricted stock units,
calls, preemptive rights, subscriptions or other rights, agreements, arrangements or
commitments of any kind relating to the issued or unissued capital stock of the Company or
any Company Subsidiary, obligating the Company or any Company Subsidiary to
issue, transfer or sell or cause to be issued, transferred or sold any shares of
capital stock or Voting Debt of, or other equity interest in, the Company or any Company
Subsidiary or any securities convertible or exchangeable into or exercisable for such shares
or equity interests, or obligating the Company or any Company Subsidiary to grant, extend or
enter into any such option, warrant, restricted stock, restricted stock unit, call,
preemptive right, subscription or other right, agreement, arrangement or commitment
(collectively, “Equity Interests”) or (y) outstanding contractual obligations of the
Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Shares or
any capital stock of, or other Equity Interests in, the Company or any Company Subsidiary or
to provide funds
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to make any investment (in the form of a loan, capital contribution or
otherwise) in the Company or any Company Subsidiary;
(iii) there are no rights, agreements or arrangements of any character which provide
for any stock appreciation or similar right or grant any right to share in the equity,
income, revenue or cash flow of the Company or any Company Subsidiary; and
(iv) there are no bonds, debentures, notes or other indebtedness having general voting
rights (or convertible or exchangeable into or exercisable for securities having such
rights) (“Voting Debt”) of the Company or any Company Subsidiary issued and
outstanding.
Section 3.3. Authorization; Validity of Agreement; Company Action. The Company has all
necessary corporate power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the Transactions. The execution, delivery and performance
by the Company of this Agreement, and the consummation by it of the Transactions, have been duly
and validly authorized by the Company Board of Directors. This Agreement has been duly executed
and delivered by the Company and, assuming due and valid authorization, execution and delivery
hereof by Parent and Purchaser, is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except that (i) such enforcement may be subject
to applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting
creditors’ rights generally and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
Section 3.4. Board Approvals.
(a) The Company Board of Directors, at a meeting duly called and held, has unanimously:
(i) determined that this Agreement, the Offer, the Merger and the other Transactions
are advisable and in the best interests of the Company and the shareholders of the Company;
(ii) approved and taken all corporate action required to be taken by the Company Board
of Directors to authorize the consummation of the Transactions;
(iii) approved this Agreement and the Transactions (including the Offer and the
Merger); and
(iv) recommended that the shareholders of the Company accept the Offer, tender their
Shares to Purchaser pursuant to the Offer, and approve and adopt this Agreement if required
by the MBCA to approve and adopt this Agreement.
(b) A committee of disinterested directors of the Company Board of Directors (acting in
accordance with Sections 302A.671 and 302A.673 of the MBCA), at a meeting duly called and held, has
unanimously:
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(i) approved this Agreement and the Transactions (including the Offer, the Top-Up
Option, receipt of the Note and the Merger), which approval, to the extent applicable,
constituted approval under the provisions of Sections 302A.011, Subd. 38(h) for the purposes
of Sections 302A.671 and 302A.673, Subd. 1 of the MBCA as a result of which this Agreement
and the Transactions, including the Offer, the Top-Up Option and the Merger and the other
Transactions, are not and will not be subject to the restrictions on control share
acquisitions or business combinations under the provision of Sections 302A.671 and 302A.673,
respectively, of the MBCA; and
(ii) recommended to the Company Board of Directors that the Company Board of Directors
approve this Agreement and the Transactions (including the Offer, the Top-Up Option, receipt
of the Note and the Merger).
(c) No further corporate action is required by the Company Board of Directors, pursuant to the
MBCA or otherwise, in order for the Company to approve and adopt this Agreement or approve the
Transactions, including the Offer, the Top-Up Option, receipt of the Note and the Merger, subject,
in the case of the Merger, to the approval and adoption of this Agreement by the holders of a
majority of the outstanding Shares, if required by applicable law, as contemplated by Section 1.10,
which is the only vote of the Company shareholders that may be required for approval and adoption
of this Agreement and the consummation of the Merger by the Company.
Section 3.5. Consents and Approvals; No Violations.
(a) Except as set forth in Section 3.5(a) of the Company Disclosure Schedule, none of
the execution, delivery or performance of this Agreement by the Company, the acceptance for payment
or acquisition of Shares pursuant to the Offer, the consummation by the Company of the Merger, the
exercise by Purchaser of the Top-Up Option, receipt of the Note or any other Transactions,
compliance by the Company with any of the provisions of this Agreement or the continuing operation
of the businesses of the Company and the Company Subsidiaries following the Effective Time will:
(i) violate or conflict with or result in any breach of any provision of the Company
Governing Documents or the comparable governing documents of any Company Subsidiary;
(ii) require any notice, report or other filing by the Company with, or the permit,
authorization, registration, consent or approval of, any court, arbitral tribunal,
administrative agency or commission or other governmental or other regulatory authority or
agency, or foreign, federal, state, local or supranational entity (a “Governmental
Entity”), except for (A) compliance with any applicable requirements of the Exchange
Act, (B) any filings as may be required under the MBCA or Chapter 80B of the Minnesota
Statutes in connection with the Transactions, (C) filings, permits, authorizations,
registrations, consents and approvals as may be required under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the “HSR Act”), the Required
Approvals and any other applicable requirements of foreign laws, regulations or decrees
designed to prohibit, restrict or regulate actions for the purpose or effect of
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monopolization or restraint of trade, and (D) the filing with the SEC and the NASDAQ of (1)
the Schedule 14D-9, (2) a Proxy Statement if shareholder approval of the Merger is required
by applicable law, (3) the information required by Rule 14f-1 promulgated under the Exchange
Act and (4) such reports under Section 13(a) of the Exchange Act as may be required in
connection with this Agreement, the Offer and the Merger;
(iii) result in a modification, violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any right, including any right
of termination, amendment, cancellation or acceleration) under, result in the creation or
acceleration of any obligations under or the creation of a Lien on any of the assets of the
Company or any of the Company Subsidiaries pursuant to, any of the terms, conditions or
provisions of any note, bond, mortgage, Lien, indenture, lease, license, contract or
agreement, or other instrument or obligation to which the Company or any of the Company
Subsidiaries is a party or by which the Company or any of the Company Subsidiaries or any of
their respective properties or assets is bound (the “Company Agreements”); or
(iv) violate any order, writ, judgment, injunction, decree, statute, rule or regulation
applicable to the Company or any of the Company Subsidiaries or any of their respective
properties or assets;
except in the case of clauses (ii), (iii) or (iv) where (x) any failure to obtain such permits,
authorizations, registrations, consents or approvals, (y) any failure to make such notices, reports
or filings or (z) any such modifications, violations, rights, breaches or defaults have not had and
would not reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect. Section 3.5(a) of the Company Disclosure Schedule sets forth a correct and
complete list of material Company Agreements pursuant to which consents or waivers are or may be
required prior to consummation of the Transactions (whether or not subject to the exception set
forth with respect to clauses (ii), (iii) or (iv) above).
(b) Except as set forth in Section 3.5(b) of the Company Disclosure Schedule, neither
the Company nor any of the Company Subsidiaries is a party to or bound by any non-competition
Company Agreements or other Company Agreements that purport to limit in any material respect either
the type of business in which the Company or any of the Company Subsidiaries (or, after giving
effect to the Merger, Parent or its affiliates) may engage or the
manner or locations in which any of them may so engage in any business, except as would not,
individually or the in the aggregate, reasonably be expected to be material to the Company.
(c) The Company and the Company Subsidiaries are not creditors or claimants with respect to
any debtors or debtor-in-possession subject to proceedings under Chapter 11 of Title 11 of the
United States Code with respect to claims that, in the aggregate, constitute more than 25% of the
gross assets of the Company and the Company Subsidiaries (excluding cash and cash equivalents).
- 22 -
Section 3.6. Company SEC Documents and Financial Statements.
(a) The Company has filed with or furnished to (as applicable) the SEC, on a timely basis, all
required forms, reports, schedules, statements and other documents since and including January 1,
2005, under the Exchange Act or the Securities Act of 1933, as amended (the “Securities
Act”) (together with all certifications required pursuant to the Xxxxxxxx-Xxxxx Act of 2002
(the “Xxxxxxxx-Xxxxx Act”)) (such documents and any other documents filed by the Company
with, or furnished by the Company to, the SEC, as have been amended since the time of their filing
or being furnished, collectively, the “Company SEC Documents”). As of their respective
dates, the Company SEC Documents (i) did not (or with respect to the Company SEC Documents filed or
furnished after 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 in order to make
the statements made therein, in light of the circumstances under which they were made, not
misleading and (ii) complied (or with respect to the Company SEC Documents filed or furnished after
the date of this Agreement, will comply) with the applicable requirements of the Exchange Act, the
Securities Act or the Xxxxxxxx-Xxxxx Act, as the case may be, and the applicable rules and
regulations of the SEC thereunder, except where the failure to comply with such requirements, rules
or regulations would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect. All of the audited financial statements and unaudited interim
financial statements of the Company included in the Company SEC Documents (collectively, the
“Financial Statements”), (A) have been or will be, as the case may be, prepared from, are
in accordance with, and accurately reflect the books and records of the Company in all material
respects, (B) have been or will be, as the case may be, prepared in accordance with United States
generally accepted accounting principles (“GAAP”) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto or, in the case of unaudited
interim financial statements, for normal and recurring year-end adjustments that will not be
material in amount or effect and as may be permitted by the SEC on Form 10-Q, Form 8-K or any
successor or like form under the Exchange Act) and (C) fairly present or, in the case of the
Company SEC Documents filed after the date of this Agreement, will fairly present the consolidated
financial position and the results of operations and cash flows of the Company and the Company
Subsidiaries as of the times and for the periods referred to therein.
(b) The Company has designed and maintained a system of internal controls over financial
reporting (as defined in Rules 13a-15 and 15d-15 promulgated under the Exchange Act) effective and
sufficient to provide reasonable assurances regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in accordance with GAAP and includes
policies and procedures that comply in all material respects
with the requirements under the Xxxxxxxx-Xxxxx Act. The Company 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 of
Directors (A) any significant deficiencies in the design or operation of its internal controls over
financial reporting that are reasonably likely to adversely affect the Company’s ability to record,
process, summarize and report financial information and has identified for the Company’s auditors
and audit committee of the Company Board of Directors any material weaknesses in internal control
over financial reporting and (B) any fraud, whether or not material, that involves management or
other employees of the Company who have a significant role in the Company’s
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internal control over
financial reporting. Since January 1, 2005, no material complaints from any source regarding
accounting, internal accounting controls or auditing matters, and no concerns from Company
employees regarding questionable accounting or auditing matters, have been received by the Company.
The Company has made available to Parent a summary of all material complaints since January 1,
2005, through the Company’s whistleblower hot line or equivalent system for receipt of employee
concerns regarding possible violations of law. The Company has designed and maintains effective
disclosure controls and procedures (as required by Rules 13a-15 and 15d-15 promulgated under the
Exchange Act) to ensure that information required to be disclosed by the Company in its filings
with the SEC and other public disclosure documents is recorded, processed, summarized and reported
within the time periods specified in the SEC’s rules and forms and is accumulated and communicated
to the Company’s management as appropriate to allow timely decisions regarding required disclosure.
None of KPMG LLP and all other independent public accountants of the Company or any Company
Subsidiary has resigned or been dismissed as independent public accountant of the Company or any
Company Subsidiary as a result of or in connection with any disagreement with the Company or any
Company Subsidiary on a matter of accounting principles or practices, financial statement
disclosure or auditing scope or procedure. To the knowledge of the Company, no attorney
representing the Company or any of the Company Subsidiaries, whether or not employed by the Company
or any of the Company Subsidiaries, has reported evidence of a violation of securities laws, breach
of fiduciary duty or similar violation by the Company or any of its officers, directors, employees
or agents to the Company’s chief legal officer, audit committee (or other committee designated for
the purpose) of the Company Board of Directors or the Company Board of Directors pursuant to the
rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating
such reporting, including in instances not required by those rules.
(c) The Company is in compliance in all material respects with the applicable listing and
corporate governance rules and regulations of the NASDAQ. Except as permitted by the Exchange Act,
including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx
Act, neither the Company nor any of its affiliates has made, arranged or modified (in any material
way) any extensions of credit in the form of a personal loan to any executive officer or director
of the Company.
Section 3.7. Absence of Certain Changes.
(a) Except as contemplated by this Agreement or as disclosed in any Company SEC Document filed
with or furnished to the SEC after December 31, 2006 and prior to the date of this Agreement, the
Company and the Company Subsidiaries have conducted their
respective businesses only in, and have not engaged in any material transactions other than in
accordance with, the ordinary course of business consistent with past practice.
(b) Since December 31, 2006, (i) no facts, changes, events, developments or circumstances have
occurred, arisen, come into existence or become known that have had or would reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect; and (ii) except as
set forth in Section 3.7(b) of the Company Disclosure Schedule, no action has been taken by
the Company that, if such action had been taken during the period from the date of this Agreement
through the Effective Time without Parent’s consent,
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would constitute a breach of the provisions of
Xxxxxxxx 0.0(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x) or (o).
Section 3.8. Absence of Undisclosed Liabilities. Except (a) as reflected or otherwise
reserved against on the Financial Statements filed with the SEC prior to the date of this
Agreement, (b) for liabilities and obligations incurred since December 31, 2006 in the ordinary
course of business, and (c) as set forth in Section 3.8 of the Company Disclosure Schedule,
the Company and the Company Subsidiaries are not subject to any liabilities or obligations, whether
or not accrued, contingent or otherwise and whether or not required to be disclosed, and there are
no other facts or circumstances of which the Company has knowledge that could reasonably be
expected to result in any claims against, or obligations or liabilities of, the Company or any of
the Company Subsidiaries, except for those that are not, have not had, or are not reasonably likely
to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 3.9. Litigation. Except as set forth in Section 3.9 of the Company Disclosure
Schedule, there is no claim, action, suit, hearing, arbitration, investigation, alternative dispute
resolution action or any other judicial or administrative proceeding, in law or equity
(collectively, a “Legal Proceeding”), pending against (or, to the Company’s knowledge,
threatened against) the Company or any of the Company Subsidiaries, or to the Company’s knowledge,
any executive officer or director of the Company or any of the Company Subsidiaries (in their
capacity as such), that would reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect. Neither the Company nor any of the Company Subsidiaries is a
party to or subject to any outstanding order, writ, injunction, decree, arbitration ruling or
judgment of a Governmental Entity that has had or would reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect.
Section 3.10. Employee Benefit Plans; ERISA.
(a) Section 3.10(a) of the Company Disclosure Schedule sets forth a correct and
complete list of all material employee benefit plans, programs, agreements or arrangements,
including pension, retirement, profit sharing, deferred compensation, stock option, change in
control, retention, equity or equity-based compensation, stock purchase, employee stock ownership,
severance pay, vacation, bonus or other incentive plans, all medical, vision, dental or other
health plans, all life insurance plans, and all other employee benefit plans or fringe benefit
plans, including “employee benefit plans” as that term is defined in Section 3(3) of ERISA, in
each case, whether oral or written, funded or unfunded, or insured or self-insured, maintained by
the Company, or to which the Company contributes or is obligated to contribute thereunder, or with
respect to which the Company has or may have any liability (contingent or otherwise), in each case,
for or to (i) any current or former employees, directors or officers of the Company located
primarily in the United States and/or their dependents (collectively, whether or not material, the
“Benefit Plans”), or (ii) any current or former employees, directors or officers of the
Company not located primarily in the United States and/or their dependents (collectively, whether
or not material, the “Foreign Plans”). For purposes of this Agreement, the term “plan,”
when used with respect to Foreign Plans, shall mean a “scheme” or other employee benefit program or
arrangement in accordance with specific country usage.
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(b) Except as set forth in Section 3.10(b) of the Company Disclosure Schedule, all
Benefit Plans that are intended to be subject to Code Section 401(a) and any trust agreement that
is intended to be tax exempt under Code Section 501(a) have been determined by the Internal Revenue
Service to be qualified under Code Section 401(a) and exempt from taxation under Code Section
501(a), and, to the knowledge of the Company, nothing has occurred that would adversely affect the
qualification of any such plan, except for such events that can be remedied without material
liability to the Company.
(c) Each Benefit Plan and any related trust subject to ERISA complies in all material respects
with and has been administered in substantial compliance with, (i) the provisions of ERISA, (ii)
all provisions of the Code, (iii) all other applicable laws, and (iv) its terms and the terms of
any collective bargaining or collective labor agreements. There are no material unresolved claims
or material disputes under the terms of, or in connection with, the Benefit Plans other than claims
for benefits which are payable in the ordinary course. There has not been any material non-exempt
“prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Code)
with respect to any Benefit Plan. No litigation has been commenced with respect to any Benefit Plan
and, to the knowledge of the Company, no such litigation is threatened (other than routine claims
for benefits in the normal course), in either case, except as has not and would not reasonably be
expected to have a Company Material Adverse Effect. There are no material governmental audits or
material investigations pending or, to the knowledge of the Company, threatened in connection with
any Benefit Plan. No Benefit Plan is subject to Section 412(n) of the Code.
(d) Neither the Company nor any ERISA Affiliate of the Company (i) has an “obligation to
contribute” (as defined in ERISA Section 4212) to a Benefit Plan that is a “multiemployer plan” (as
defined in ERISA Sections 4001(a)(3) and 3(37)(A)); (ii) sponsors, maintains or contributes to any
plan, program or arrangement that provides for post-retirement or other post-employment welfare
benefits (other than health care continuation coverage as required by applicable law); or (iii)
sponsors a Foreign Plan that is a defined benefit pension plan intended to be registered or
approved by any Governmental Entity.
(e) Neither the Company nor any ERISA Affiliate has ever maintained, established, sponsored,
participated in, or contributed to, any defined benefit plan (as defined in ERISA Section 3(35))
subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(f) Except as set forth in Section 3.10(f) of the Company Disclosure Schedule or as
has not had and would not reasonably be expected to result in material liability to the Company,
all reports, returns and similar documents with respect to all Benefit Plans or Foreign Plans
required to be filed by the Company with any Governmental Entity or distributed to any Benefit Plan
participant or Foreign Plan participant have been duly and timely filed or distributed.
(g) Section 3.10(g) of the Company Disclosure Schedule discloses each Benefit Plan
that is an employee welfare benefit plan which is (i) unfunded or self-insured or (ii) funded
through a “welfare benefit fund,” as such term is defined in Code Section 419(e), or other funding
mechanism. Each such employee welfare benefit plan may be amended or
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terminated (including with
respect to benefits provided to retirees and other former employees) without material liability
(other than benefits then payable under such plan without regard to such amendment or termination)
to the Company at any time. The Company complies in all material respects with the applicable
requirements of Section 4980B(f) of the Code or any similar state statute with respect to each
Benefit Plan that is a group health plan within the meaning of Section 5000(b)(1) of the Code or
such state statute.
(h) Section 3.10(h) of the Company Disclosure Schedule discloses: (i) each agreement
that provides for the payment of any bonus, severance, unemployment compensation, deferred
compensation, forgiveness of indebtedness or parachute payment (as defined in Section 280G(b)(2) of
the Code) that is due and payable to any current or former employee under any Benefit Plan or
Foreign Plan as a result of the execution of this Agreement (or the consummation of the
Transactions); (ii) any increase in any material respect of any benefit otherwise payable under any
Benefit Plan or Foreign Plan as a result of the execution or shareholder approval of this Agreement
(or the consummation of the Transactions); (iii) each agreement that provides for any acceleration
in any material respect of the time of payment or vesting of any such benefits under any Benefit
Plan or Foreign Plan as a result of the execution or shareholder approval of this Agreement (or the
consummation of the Transactions); (iv) any material obligation to fund any trust or other
arrangement with respect to compensation or benefits under a Benefit Plan or Foreign Plan in each
case caused or triggered by the execution or shareholder approval of this Agreement or the
consummation of the Offer or the Merger or the other Transactions; or (v) each agreement that
provides for any tax “gross-up,” tax indemnification or similar payment based on a tax obligation
pursuant to Section 4999 of the Code. Except as set forth in Section 3.10(h) of the Company
Disclosure Schedule, no payment or benefit which has been, will or may be made by the Company with
respect to any current or former employee located in the United States in connection with the
execution and delivery of this Agreement or the consummation of the Transactions contemplated
hereby would fail to be deductible under Section 162(m) of the Code.
(i) Except as set forth on Section 3.10(i) of the Company Disclosure Schedule, since
January 1, 2007, there has been no amendment to, announcement by the Company or any Company
Subsidiary relating to, or change in employee participation or coverage under, any Benefit Plan or
Foreign Plan which would increase materially the expense of maintaining such plan above the level
of the expense incurred therefor for the most recent fiscal year.
(j) Correct and complete copies will be made available to Parent by the Company of all
material Benefit Plans and Foreign Plans (including all amendments and attachments thereto);
written summaries of any material Benefit Plan not in writing, all related trust documents; all
insurance contracts or other funding arrangements to the degree applicable; the most recent annual
information filings (Form 5500) and annual financial reports for those Benefit Plans (where
required); the most recent determination letter from the Internal Revenue Service (where required);
all written agreements and contracts relating to each Benefit Plan and Foreign Plan, including
administrative service agreements and group insurance contracts; and the most recent summary plan
descriptions for the Benefit Plans (where required) and in respect of Benefit Plans and Foreign
Plans, the most recent actuarial valuation and any subsequent valuation or funding advice (where
required, including draft valuations).
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(k) The Company Board of Directors has determined that each of the members of the Compensation
Committee of the Company Board of Directors (the “Compensation Committee”) are “independent
directors” as defined in Rule 4200(a)(15) of the NASDAQ Marketplace Rules and eligible to serve on
the Compensation Committee under the Exchange Act and all applicable NASDAQ Marketplace Rules. On
or prior to the Effective Date, the Compensation Committee will have approved each Company
Compensation Arrangement as an “employment compensation, severance or other employee benefit
arrangement” within the meaning of Rule 14d-10(d)(1) promulgated under the Exchange Act (an
“Employment Compensation Arrangement”), and will have taken all other action necessary to
satisfy the requirements of the non-exclusive safe-harbor with respect to such Company Compensation
Arrangements in accordance to Rule 14d-10(d)(2) promulgated under the Exchange Act.
Section 3.11. Taxes. Except as set forth in Section 3.11 of the Company Disclosure
Schedule:
(a) The Company has timely filed with the appropriate Governmental Entity all required
material Tax Returns. All such Tax Returns are complete and accurate in all material respects. All
material Taxes due and owing by the Company on or before the date of this Agreement (whether or not
shown on any Tax Returns) have been paid or, to the extent reflected on Section 3.11 of the
Company Disclosure Schedule, are being contested in good faith. The Company currently is not the
beneficiary of any extension of time within which to file any material Tax Return.
(b) The unpaid Taxes of the Company did not, as of the dates of the Financial Statements,
materially exceed the reserve for Tax liability set forth on the face of the balance sheets
contained in such Financial Statements.
(c) No deficiencies for material Taxes with respect to the Company have been claimed or
proposed in writing or assessed by any Tax authority. There are no pending or, to the Company’s
knowledge, threatened audits, assessments or other actions for or relating to any material
liability in respect of Taxes of the Company. The Company has delivered or made available to
Parent complete and accurate copies of federal income Tax Returns and other material Tax Returns of
each of the Company and its predecessors for Tax periods ended on or after December 31, 2004, and
complete and accurate copies of all material examination reports
and statements of deficiencies assessed against or agreed to by the Company or any of its
predecessors since December 31, 2004, with respect to Taxes of any type. Neither the Company nor
any predecessor has waived any statute of limitations in respect of material Taxes or agreed to any
extension of time with respect to a material Tax assessment or deficiency.
(d) There are no Liens for Taxes upon the assets of the Company (other than with respect to
Liens for Taxes not yet due and payable).
(e) The Company has not been a United States real property holding corporation within the
meaning of Section 897(c)(2) of the Code during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
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(f) The Company has withheld and paid all material Taxes required to have been withheld and
paid in connection with amounts paid or owing to any employee, independent contractor, creditor,
shareholder, or other third party.
(g) The Company does not have any liability for the Taxes of any other Person under Treasury
Regulation Section 1.1502–6 (or any similar provision of state, local, or foreign law), as a
transferee, by contract, or otherwise. The Company has not been a member of an affiliated group
filing a consolidated federal income Tax Return.
(h) There are no Tax sharing agreements or similar arrangements (including indemnity
arrangements) with respect to or involving the Company.
(i) The Company has not constituted a “distributing corporation” or a “controlled corporation”
(within the meaning of Section 355(a)(1)(A) of the Code) during the five-year period ending on the
date of this Agreement in a distribution of stock to which Section 355 of the Code (or so much of
Section 356 of the Code as relates to Section 355 of the Code) applies.
(j) The Company has not entered into any transaction identified as a “reportable transaction”
for purposes of Section 6111 of the Code or Treasury Regulation Section 1.6011-4(b)(1), or
analogous provisions of any state, local or foreign Tax law.
Section 3.12. Material Contracts.
(a) Each contract listed on Section 3.12 of the Company Disclosure Schedule
constitutes a “Company Material Contract.” Section 3.12 of the Company Disclosure
Schedule sets forth each contract that is currently in effect, in which the Company or any Company
Subsidiary is a party or by which any of their respective properties or assets are bound (i) that
is material to the business of the Company and the Company Subsidiaries taken as a whole and was
not entered into in the ordinary course of business; (ii) that involves the payment of royalties or
other amounts of more than $3 million in the aggregate since January 1, 2006, calculated based upon
the revenues or income of the Company or the Company Subsidiaries, as applicable, or income or
revenues related to any product of the Company or the Company Subsidiaries, as applicable; (iii)
that involves the receipt of royalties or other amounts of more than $10 million in the aggregate
since January 1, 2006 calculated based upon the revenues or income of the Company or the Company
Subsidiaries, as applicable, or income or revenues related to any
product of the Company or the Company Subsidiaries, as applicable; (iv) that would prevent or
materially impair the Company’s ability to consummate the Offer, the Merger or the other
Transactions; (v) that provides for indemnification by the Company or any of the Company
Subsidiaries to any Person, other than entered into in the ordinary course of business; (vi) that
was not negotiated and entered into on an arm’s-length basis; (vii) that (I) purports to limit in
any material respect either the type of business in which the Company or any of the Company
Subsidiaries (or, after the Effective Time, Parent or its affiliates) may engage or the manner or
locations in which any of them may so engage in any business, (II) could require the disposition of
any material assets or line of business of the Company or any of the Company Subsidiaries (or,
after the Effective Time, Parent or its affiliates), (III) grants “most favored nation” status
that, following the Merger, would apply to Parent or its affiliates, (including the Company and
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the
Company Subsidiaries) or (IV) materially prohibits or limits the right of the Company or any of the
Company Subsidiaries (or, after the Effective Time, Parent or its affiliates) to make, sell or
distribute any products or services or use, transfer, license, distribute or enforce any of their
respective Intellectual Property rights; (viii) other than as disclosed in the Company Disclosure
Schedule, that is between the Company or any of the Company Subsidiaries and any director or
officer of the Company or any Person beneficially owning five percent or more of the outstanding
Shares; (ix) that contains a put, call or similar right pursuant to which the Company or any
Company Subsidiary (or, after the Effective Time, Parent or its affiliates) could be required to
purchase or sell, as applicable, any equity interests of any Person that have a fair market value
or purchase price of more than $1,000,000; or (x) that is a loan or credit agreement, mortgage,
promissory note, indenture or other contract evidencing indebtedness for borrowed money in an
amount in excess of $1 million by the Company or any of the Company Subsidiaries.
(b) (i) Neither the Company nor any Company Subsidiary is and, to the knowledge of the
Company, no other party is in breach or violation of, or default under, in any material respect,
any Company Material Contract, (ii) none of the Company or any Company Subsidiary has received any
claim of default under any Company Material Contract, (iii) other than as set forth in Section
3.5(a) of the Company Disclosure Schedule, the execution, delivery and performance of this
Agreement by Parent and Purchaser, the consummation by Parent and Purchaser of the Transactions and
the compliance by Parent and Purchaser with the provisions of this Agreement will not result in a
breach or violation of, or default under, in any material respect, any Company Material Contract,
and (iv) to the knowledge of the Company, no event has occurred that would result in a breach or
violation of, or a default under, in any material respect, any Company Material Contract (in each
case, with or without notice or lapse of time or both). Each Company Material Contract is valid,
binding and enforceable in accordance with its terms and is in full force and effect with respect
to the Company or a Company Subsidiary, as applicable.
Section 3.13. Title to Properties and Encumbrances.
(a) The Company and each of the Company Subsidiaries have good, valid and marketable title to,
or, in the case of leased properties and assets, valid leasehold interests in, all of its material
tangible properties and assets. Except as set forth on Section 3.13(a) of the Company
Disclosure Schedule, there are no Liens on any such tangible property or assets, except for (i)
Liens reflected in the Financial Statements, (ii) Liens for Taxes, assessments or
governmental charges or levies on property not yet due and payable and Liens for Taxes that
are being contested in good faith by appropriate proceedings and for which an appropriate reserve
has been provided on the appropriate Financial Statements and (iii) Liens that would not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect (the
foregoing Liens in clauses (i) through (iii), “Permitted Liens”).
(b) Section 3.13(b) of the Disclosure Schedule is a true and complete list of the
street address of each parcel of land, buildings, structures, improvements, fixture or other
interest in real property held by or for the Company or any of the Company Subsidiaries (the
“Leased Real Property”) and the identity of the lessor, lessee and current occupant (if
different from lessee) of each such parcel of Leased Real Property. The Company has made available
to
- 30 -
Parent, true and complete copies of the leases, subleases, licenses or assignment agreements and
any and all material amendments, modifications, supplements, exhibits and restatements thereto and
thereof in effect as of the date of this Agreement relating to the Leased Real Property. With
respect to each Leased Real Property, (i) each such lease, sublease, license or assignment
agreement is valid, binding, enforceable in accordance with its terms and in full force and effect;
(ii) all payments required to have been made under each lease, sublease, license or assignment
agreement by the Company and the Company Subsidiaries have been made; (iii) there are no breaches
of or other defaults or events of default under, or events which with due notice or lapse of time,
or both, would constitute a breach of or other defaults or events of default under, any material
lease, sublease, license or assignment agreement by the Company or any of the Company Subsidiaries
or, to the Company’s knowledge, the landlord or sublandlord, as applicable under such lease,
sublease, license or assignment agreement; (iv) neither the Company nor any of the Company
Subsidiaries has exercised any option or right to terminate, renew or extend or otherwise affect
the rights or obligations of the tenant under any lease, sublease, license or assignment agreement;
(v) neither the Company nor any Company Subsidiary or, to the Company’s knowledge, the landlord or
sublandlord, has received or given any notice of default or breach under any lease, sublease,
license or assignment agreement or notice that any lease, sublease, license or assignment will be
terminated or will not be renewed; and (vi) except as set forth on Section 3.5(a) of the
Company Disclosure Schedule, no consent of any Person is necessary for the lessee to legally occupy
each Leased Real Property from and after the Closing.
(c) Neither the Company nor any Company Subsidiary owns any real property.
Section 3.14. Intellectual Property.
(a) Except as would not reasonably be expected to be, individually or in the aggregate,
materially adverse to the Company, to the knowledge of the Company, either the Company or a Company
Subsidiary is the sole exclusive owner or assignee of the entire right and interest or is
exclusively licensed all material Intellectual Property used in their respective businesses as
currently conducted. To the knowledge of the Company, except as set forth on Section 3.14(a)
of the Company Disclosure Schedule, the Company and the Company Subsidiaries own or have the
rights to use, free and clear of any Liens, but subject to any existing licenses or other grants of
rights to third parties, all material Intellectual Property as is necessary and sufficient to
conduct the Company’s and the Company Subsidiaries’ respective businesses as currently conducted
and for the manufacture, use and sale of the products currently marketed, the
products currently in clinical development and the microparticle technology used in
Amolimogene and ZYC300 by the Company and the Company Subsidiaries. Except as would not reasonably
be expected to be, individually or in the aggregate, materially adverse to the Company, (i) as of
the date of this Agreement, there are no pending or, to the knowledge of the Company, threatened
claims by any Person alleging infringement, misappropriation, dilution or violation by the Company
or any Company Subsidiaries of any Intellectual Property of any Person, (ii) to the knowledge of
the Company, the conduct of the business of the Company and the Company Subsidiaries and the
manufacture, use and sale of the products marketed, the products currently in clinical development
and the microparticle technology used in Amolimogene and ZYC300 by the Company and the Company
Subsidiaries do not infringe, misappropriate, dilute or otherwise violate any Intellectual Property
of any Person, (iii) as of the
- 31 -
date of this Agreement, neither the Company nor any Company
Subsidiary has made any claim of an infringement, misappropriation, dilution or other violation by
another Person of rights to or in connection with the Company Intellectual Property or the products
marketed and the products currently in development, by the Company and the Company Subsidiaries,
(iv) to the knowledge of the Company, no Person is infringing, misappropriating, diluting or
otherwise violating any Company Intellectual Property, (v) except as identified in Section
3.5(a) of the Company Disclosure Schedule, no Company Intellectual Property will terminate or
cease to be a valid right of the Company or Company Subsidiaries by reason of the execution and
delivery of this Agreement by the Company, the performance of the Company of its obligations
hereunder, or the consummation by the Company of the Offer, the Merger or the other Transactions,
(vi) subject to third party licenses, no Person (other than the Company or the Company
Subsidiaries), including any current or former employee or consultant of the Company or the Company
Subsidiaries, has any proprietary, commercial or other interest in any of the Company Intellectual
Property, including any goodwill associated therewith, (vii) for the Company’s (and any Company’s
Subsidiary’s) products that are currently marketed, all material Licenses In and material Licenses
Out are in full force and effect, have not terminated or expired, and there are no material
disputes or Legal Proceedings threatened or pending regarding the same, and (viii) neither the
Company nor any Company Subsidiary is and, to the knowledge of the Company, no other party is in
breach or violation of, or default under, in any material respect, any such agreements. For
purposes of this Section 3.14, (x) the term “Licenses In” means all licenses, sublicenses
and other Company Agreements pursuant to which the Company or any Company Subsidiary is authorized
to use any third party Intellectual Property that is material to the business of the Company or any
of the Company Subsidiaries and (y) the term “Licenses Out” means all licenses, sublicenses
and other Company Agreements pursuant to which the Company or any Company Subsidiary authorizes any
third party to use any Company Intellectual Property. Section 3.14(a) of the Company Disclosure
Schedule sets forth a list of all material Licenses In and material Licenses Out for the Company’s
products that are currently marketed.
(b) Except as set forth in Section 3.14(b) of the Company Disclosure Schedule or as
would not reasonably be expected to be, individually or in the aggregate, materially adverse to the
Company, (i) each of the Company Intellectual Property is, to the knowledge of the Company, valid,
subsisting and enforceable, (ii) none of the Company Intellectual Property has been or is subject
to an adverse judgment, injunction, order, decree or agreement restricting its use or the
assignment or license thereof by the Company, (iii) to the knowledge of the Company, no Patent
included in the Company Intellectual Property is involved in any interference, reissue,
reexamination or opposition proceeding, (iv) no Trademark included in the Company Intellectual
Property is or has been or is currently involved in any opposition, concurrent use,
cancellation, invalidity or other similar proceeding, (v) no Trademark included in the Company
Intellectual Property is subject to a consent agreement or coexistence agreement, and (vi) neither
the Company nor any Company Subsidiary has agreed to, or is otherwise bound by, any covenant not to
use or register, or to permit any other Person to use or to register, any of the Company
Intellectual Property or has agreed to, or is otherwise bound by, any covenant not to xxx for
infringement, misuse, dilution or other violation of any of the Company Intellectual Property.
(c) The Company and the Company Subsidiaries have made commercially reasonable decisions with
respect to the filing, prosecution and maintenance of all Intellectual Property owned or
exclusively licensed by the Company or any Company Subsidiary. Except
- 32 -
where the failure to do so
would not reasonably be expected to be, individually or in the aggregate, materially adverse to the
Company, any filing, registration, issuance, maintenance and renewal fees due in connection with
the Company Intellectual Property have been paid in a timely manner and all documents, certificates
and other material necessary to maintain such Company Intellectual Property have been filed in a
timely manner with the relevant Governmental Entity.
(d) The Company and the Company Subsidiaries have complied with any and all obligations
pertaining to listing any relevant Patents included in the Company Intellectual Property in the FDA
Orange Book and have also complied with any and all obligations under the Xxxx-Xxxx Act.
(e) No Person has submitted and, to the knowledge of the Company, no Person has indicated any
plan to submit, an Abbreviated New Drug Application that includes a certification as defined in 21
U.S.C. 355(j)(2)(A)(vii)(IV) citing any patent listed in the FDA Orange Book for any product
marketed by the Company and the Company Subsidiaries.
Section 3.15. Compliance with Laws; Permits.
(a) The Company and the Company Subsidiaries are in possession of all authorizations,
registrations, licenses, permits, consents, certificates, approvals, franchises, variances,
exemptions, clearances and orders issued or granted by a Governmental Entity necessary for them to
own, lease and operate their properties and assets and to carry on their businesses as presently
conducted (the “Company Permits”), and all such Company Permits are valid and in full force
and effect, except where the failure to have, or the suspension or cancellation of, or the failure
to be valid or in full force and effect of, any of the Company Permits would not reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Neither the Company nor any Company Subsidiary has been or is in violation of any laws or
Company Permits applicable to the Company or any Company Subsidiary, or by which any property or
asset of the Company or any Company Subsidiary is bound, except for any such violations that,
individually or in the aggregate, would not reasonably be expected to have a Company Material
Adverse Effect. To the knowledge of the Company, no material change is required in the Company’s
or any of the Company Subsidiaries’ processes, properties or procedures in connection with any
applicable laws, and the Company has not
received any notice or communication of any material noncompliance with any such laws that has
not been cured as of the date of this Agreement. For purpose of this Agreement, the term
“law” means any federal, state, local or foreign law, statute or ordinance, common law, or
any rule, regulation, standard, judgment, order, writ, injunction, decree, arbitration award,
agency requirement, license or permit of any Governmental Entity.
Section 3.16. Information in the Proxy Statement. The Proxy Statement, if any, at the date
mailed to the Company’s shareholders and at the time of the Special Meeting, will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under
which they are made, not misleading, except that no representation or warranty is made by
- 33 -
the
Company with respect to statements made therein based on information supplied by Parent or
Purchaser expressly for inclusion in the Proxy Statement. The Proxy Statement will comply as to
form in all material respects with the provisions of the Exchange Act and the rules and regulations
thereunder.
Section 3.17. Information in the Offer Documents and the Schedule 14D-9. None of the
information supplied by the Company expressly for inclusion in the Offer Documents will at the time
the Offer Documents are mailed to the Company’s shareholders, or at any time at or prior to the
Acceptance Time, 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 made therein, in light
of the circumstances under which they were made, not misleading. The Schedule 14D-9 will comply as
to form in all material respects with the provisions of Rule 14d-9 promulgated under the Exchange
Act and any other applicable federal securities laws and will not when filed with the SEC or
distributed or disseminated to the Company’s shareholders, 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 made therein, in the light of the circumstances under which they are
made, not misleading, except that the Company makes no representation or warranty with respect to
statements made in the Schedule 14D-9 based on information furnished by Parent or Purchaser
expressly for inclusion therein.
Section 3.18. Opinion of Financial Advisor. The Company Board of Directors has received the
opinion of Xxxxxx Brothers Inc. (the “Company Financial Advisor”), to the effect that, as
of the date of such opinion, from a financial point of view, the Offer Price to be provided to the shareholders of the Company in
the Offer and the Merger is fair to such holders.
Section 3.19. Insurance. The Company maintains insurance coverage with reputable insurers, or
maintains effective and sufficient self insurance practices, in such amounts and providing adequate
coverage for such risks as are in accordance with normal industry practice for companies engaged in
businesses similar to that of the Company and the Company Subsidiaries (taking into account the
cost and availability of such insurance and the size and business of the
Company). All such policies are in full force and effect, all premiums due and payable have
been paid, and no written notice of cancellation or termination has been received with respect to
any such policy. The Company is not in material breach or default and has not taken any action or
failed to take any action that, with notice or the lapse of time, would constitute such a breach or
default, or permit termination or material modification of any such insurance policies. The
consummation of the Transactions will not, in and of itself, cause the revocation, cancellation or
termination of any such insurance policy.
Section 3.20. Environmental Laws and Regulations. The Company and the Company Subsidiaries
have complied and are in compliance with all Environmental Laws, except where the failure to do so
would not reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect. To the Company’s knowledge, there are no circumstances or conditions present at
the operations of any facilities owned, leased or operated by the Company or any of the Company
Subsidiaries that would reasonably be expected to prevent the operations, when used and operated in
the manner currently used and operated, from continuing to operate in material compliance with all
applicable Environmental Laws. Without limiting the generality of the foregoing, each of the
Company and the Company Subsidiaries has obtained, has complied,
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and is in compliance with permits,
licenses and other authorizations that are required pursuant to Environmental Laws for the
occupation of its facilities and the operation of its business, except, in each case, where the
failure to do so would not reasonably be expected to have or result in a Company Material Adverse
Effect. Under applicable Environmental Laws, no permit, license or other authorization is subject
to review, major modification, revision, rescission, public notice and comment or prior consent by
any Governmental Entity as a result of the consummation of the Transactions. Neither the Company
nor any of the Company Subsidiaries has received any written notice, claim, governmental request
for information, complaint, administrative or judicial order, or report or other information, and
to the knowledge of the Company none is pending or threatened, regarding any actual or alleged
material violation of Environmental Laws or any material liabilities or potential material
liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any
material investigatory, remedial or corrective obligations, relating to any of them or their
currently or formerly owned, operated or leased facilities arising under Environmental Laws and, to
Company’s knowledge, there are no conditions or occurrences with respect to any such facilities
that would reasonably be expected to lead to any such demands, complaints, claims, information
requests, orders or notices. There are no past, pending or, to the Company’s knowledge, threatened
Environmental Claims against the Company or, to the Company’s knowledge, any properties of the
Company or any Company Subsidiary. No Company or any Company Subsidiary has caused the Release of
any Hazardous Materials at or from any facility currently or formerly owned, operated or leased by
the Company or any of the Company Subsidiaries that is reportable under any Environmental Laws and
that would reasonably be expected to give rise to any liability or remediation obligation under any
such Environmental Laws. To the Company’s knowledge, there are no underground storage tanks,
polychlorinated biphenyls, or asbestos-containing material located at any of the facilities
currently or formerly owned, operated or leased by the Company or any of the Company Subsidiaries.
To the Company’s knowledge, neither the Company nor any of the Company Subsidiaries has, in the
course of its business, sent or disposed of, otherwise had taken or transported, arranged for the
taking or disposal of (on behalf of itself, a customer or any other
Person) or in any other manner participated or been involved in the taking of or disposal or
Release of a Hazardous Material to or at a site that pursuant to any Environmental Laws, (i) has
been placed on the “National Priorities List,” the “CERCLIS” list, or any similar state or federal
list, or (ii) is subject to or the source of a claim, an administrative order or other request to
take “removal,” “remedial,” “corrective” or any other “response” action, as defined in any
Environmental Laws, or to pay for the costs of any such action at the site. Except as set forth in
Section 3.20 of the Company Disclosure Schedule, neither the Company nor any Company
Subsidiary has entered into any contracts or other binding agreements pursuant to which it has
assumed any material obligations or liabilities of any third party under or pursuant to any
Environmental Laws or has agreed to indemnify, defend or hold harmless any third party for any
material liabilities, costs or claims arising under or pursuant to any Environmental Laws. To the
Company’s knowledge, no Lien or “superlien” has been placed on any property currently owned,
leased, operated or used by the Company or any Company Subsidiary pursuant to the Federal
Comprehensive, Environmental Response, Compensation, and Liability Act of 1980 or any similar law.
Notwithstanding any other provision of
this Agreement, this Section 3.20 sets forth the sole and
exclusive representations and warranties of the Company or any Company Subsidiary with respect to
Environmental Laws, Hazardous Materials, Environmental Claims or other environmental matters.
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Section 3.21. Brokers.
No broker, investment banker, financial advisor or other Person, other
than the Company Financial Advisor, is entitled to any broker’s, finder’s, financial advisor’s or
other similar fee or commission in connection with the Offer, the Merger or the other Transactions
based upon arrangements made by or on behalf of Company.
Section 3.22. Actions Under Rights Plan; Takeover Statutes.
(a) The Company has taken all necessary actions, to the reasonable satisfaction of Parent, to
irrevocably render the Rights Agreement inapplicable to the Offer, the Merger and all the other
Transactions and to cause the Rights to cease to be exercisable, effective immediately prior to the
Acceptance Time, without payment of any consideration in respect thereof.
(b) Assuming the accuracy of the representations and warranties set forth in Section 4.7, no
further action is required by the Company Board of Directors (or any committee thereof) or the
shareholders of the Company to render inapplicable to this Agreement, the Offer, the Top-Up Option,
receipt of the Note, the Merger, the amendment and termination of the Rights Agreement and the
other Transactions the restrictions on (i) a “control share acquisition” (as defined in Section
302A.011 of the MBCA) set forth in Section 302A.671 of the MBCA, (ii) “business combinations” with
an “interested shareholder” (each as defined in Section 302A.011 of the MBCA) set forth in Section
302A.673 of the MBCA, (iii) other similar anti-takeover statute or regulation, or (iv) any
anti-takeover provision in the Company Governing Documents and, accordingly, none of the foregoing
anti-takeover or similar statute or regulation or any anti-takeover provision in the Company
Governing Documents applies to the Offer, the Merger or any other Transactions, other than Chapter
80B of the Minnesota Statutes.
Section 3.23. Regulatory Compliance.
Except as disclosed in the Company SEC Documents, as set
forth in Section 3.23 of the Company Disclosure Schedules or as would not reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse Effect, since
January 1, 2004:
(a) to the knowledge of the Company, each Company Product that is subject to the jurisdiction
of the Federal Food, Drug, and Cosmetic Act of 1938, as amended (the “FDCA”), the Public
Health Service Act, as amended (the “PHSA”), the Controlled Substances Act, as amended (the
“CSA”), and the regulations promulgated thereunder or similar laws, rules and regulations
in any foreign jurisdiction, is being developed, manufactured, stored, tested, marketed, promoted,
and/or distributed in compliance with all applicable requirements under FDCA, the PHSA, the CSA and
the regulations promulgated thereunder or similar laws, rules and regulations in any foreign
jurisdiction;
(b) to the knowledge of the Company, all manufacturing operations relating to the Company
Products and conducted by, or on behalf of, the Company and the Company Subsidiaries have been and
are being, to the extent required by applicable law, conducted in material compliance with the
Federal Food and Drug Administration (the “FDA”) regulations for current Good Manufacturing
Practice, including 21 C.F.R. Parts 210 and 211 and applicable guidance documents, as amended from
time to time, and all applicable similar requirements in other jurisdictions;
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(c) to the knowledge of the Company, all pre-clinical and clinical studies relating to Company
Products conducted by or on behalf of the Company and the Company Subsidiaries have been, or are
being, conducted in compliance with the requirements of the FDA’s Good Laboratory Practice and Good
Clinical Practice requirements, including regulations under 21 C.F.R. Parts 50, 54, 56, 58, 312 and
applicable guidance documents, as amended from time to time, the Animal Welfare Act, and all
applicable similar requirements in other jurisdictions, and all requirements relating to protection
of human subjects and, to the extent it would not reasonably be expected to result in a material
liability to the Company, the provisions governing the privacy of patient medical records under the
Health Insurance Portability and Accountability Act of 1996 and the implementing regulations of the
United States Department of Health and Human Services. The Company has not received any notice
that the FDA or any state or federal government authority or institutional review board has
initiated, or threatened to initiate, any clinical hold or other action to suspend any clinical
trial or suspend or terminate any Investigational New Drug Application sponsored by or on behalf of
the Company or otherwise restrict the preclinical research on or clinical study of any Company
Product;
(d) to the knowledge of the Company, no Company Product has been voluntarily recalled,
suspended or discontinued by the Company or any Company Subsidiary at the request of the FDA or any
other Governmental Entity, nor has the Company or any Company Subsidiary received any notice from
the FDA or any other Governmental Entity that it has commenced, or threatened to initiate, any
action to withdraw approval, place sales or marketing restrictions on or request the recall of any
Company Product, or that it has commenced or threatened to initiate any action to enjoin or place
restrictions on the production of any Company Product;
(e) to the knowledge of the Company, no officer, employee or agent of the Company has made an
untrue statement of a material fact or fraudulent statement to the FDA or any other Governmental
Entity, failed to disclose a material fact required to be disclosed to the FDA or any other
Governmental Entity, or committed an act, made a statement, or failed to make a statement that, at
the time such disclosure was made, would reasonably be expected to provide a basis for the FDA or
any other Governmental Entity to invoke its policy respecting “Fraud, Untrue Statements of Material
Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991) or
any similar policy. To the knowledge of the Company, the Company has not used in any capacity the
services of any individual or entity debarred under 21 U.S.C. § 335a(a) or any similar laws, rules
or regulations in connection with a Company Product, and neither the Company nor any Company
Subsidiary, nor, to the knowledge of the Company, any of their respective directors, officers,
agents or employees, has engaged in any conduct that has resulted, or would reasonably be expected
to result, in debarment under 21 U.S.C. § 335a(a) or any similar laws, rules or regulations;
(f) to the knowledge of the Company, neither the Company nor any Company Subsidiary, nor any
of their respective directors, officers, agents or employees, has engaged in any conduct that has
resulted or would reasonably be expected to result in any material violation of the Federal
Xxxxxxxxxxxx Xxxxxxx, 00 X.X.X. § 0000x-0x, or the False Claims Act, 31 U.S.C. § 3729, or any
similar laws, rules or regulations;
- 37 -
(g) to the knowledge of the Company, none of the NDAs or INDs for Company Products contains
any untrue statement of material fact; and
(h) to the knowledge of the Company, neither the Company nor any Company Subsidiary is subject
to any pending or threatened investigation or enforcement action by the FDA or any other
Governmental Entity relating to any alleged violation of law with respect to any Company Product,
except as would not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section 3.24. Labor Matters. Neither the Company nor any of the Company Subsidiaries is a
party to or otherwise bound by any collective bargaining agreement or other contract with a labor
union or labor organization, nor is the Company or any of the Company Subsidiaries the subject of
any material proceeding that asserts that the Company or any of the Company Subsidiaries has
committed an unfair labor practice or that seeks to compel it to bargain with any labor union or
labor organization nor is there pending or, to the knowledge of the Company, threatened, nor has
there been for the past five years, any labor strike, dispute, walk-out, work stoppage, slow-down
or lockout involving the Company or any of the Company Subsidiaries. To the knowledge of the
Company, there are no organizational efforts with respect to the formation of a collective
bargaining unit presently being made involving employees of the Company or any of the Company
Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser represent and warrant to the Company as follows:
Section 4.1. Organization. Each of Parent and Purchaser is a corporation duly organized,
validly existing and in good standing (with respect to jurisdictions which recognize such concept)
under the laws of the jurisdiction in which it is organized and has the requisite corporate power
and authority to own, lease and operate its properties and assets and to conduct its business as
presently conducted, except for those jurisdictions where the failure to be in good standing would
not, individually or in the aggregate, reasonably be expected to prevent or materially impair the
ability of Parent and Purchaser to consummate the Transactions.
Section 4.2. Authorization; Validity of Agreement; Necessary Action. Each of Parent and
Purchaser has all necessary corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the Transactions. The execution, delivery and
performance by Parent and Purchaser of this Agreement and the consummation by them of the
Transactions have been duly authorized by all necessary action on the part of Parent and the board
of directors of Purchaser. Eisai Corporation of North America, a direct wholly-owned subsidiary of
Parent (“Eisai US”), in its capacity as sole shareholder of Purchaser will approve and
adopt this Agreement immediately after execution of this Agreement. This Agreement has been duly
executed and delivered by Parent and Purchaser and, assuming due and valid authorization, execution
and delivery hereof by the Company, is the valid and binding obligation of each of Parent and
Purchaser enforceable against each of them in accordance with its terms, except that (a) such
enforcement may be subject to applicable
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bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefore may be brought.
Section 4.3. Consents and Approvals; No Violations. The execution, delivery and performance
of this Agreement by Parent and Purchaser, the consummation by Parent and Purchaser of the
Transactions and the compliance by Parent and Purchaser with the provisions of this Agreement will
not (a) violate or conflict with or result in any breach of any provision of the organizational
documents of Parent or Purchaser, (b) require any notice, report or other filing by Parent or
Purchaser with, or the permit, authorization, registration, consent or approval of, any
Governmental Entity (except for (i) compliance with any applicable requirements of the Exchange Act
or the Tokyo or Osaka Stock Exchanges, (ii) any notices, reports or other filings as may be
required under the MBCA or Chapter 80B of the Minnesota Statutes in connection with the
Transactions, (iii) filings, permits, authorizations, registrations, consents and approvals as may
be required under the HSR Act, the Required Approvals and any other applicable requirements of
foreign laws, regulations or decrees
designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization
or restraint of trade, and (iv) the filing with the SEC of the Schedule TO), or (c) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to Parent or Purchaser, any
of their Subsidiaries, or any of their properties or assets, except in the case of clause (b) or
(c) where (x) any failure to make such notices, reports or other filings or to obtain such permits,
authorizations, registrations, consents or approvals or (y) such violations would not, individually
or in the aggregate, reasonably be expected to prevent or materially impair the ability of Parent
and Purchaser to consummate the Transactions.
Section 4.4. Litigation. There is no Legal Proceeding pending against (or, to the knowledge
of Parent, threatened against) Parent or any of its Subsidiaries, nor, to the knowledge of Parent,
is there any investigation pending or threatened against Parent or any of its Subsidiaries, and
none of Parent or any of its Subsidiaries is subject to any outstanding order, writ, injunction,
decree, arbitration, ruling or judgment of a Governmental Entity, in each case, which would,
individually or in the aggregate, prevent or materially impair the ability of Parent and Purchaser
to consummate the Transactions.
Section 4.5. Information in the Proxy Statement. None of the information supplied or to be
supplied by Parent or Purchaser in writing expressly for inclusion or incorporation by reference in
the Proxy Statement will, at the date mailed to the Company’s shareholders and at the time of the
Special Meeting, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements made therein, in light
of the circumstances under which they are made, not misleading.
Section 4.6. Information in the Offer Documents and Registration Statement.
(a) The Offer Documents will not when filed with the SEC or at the time of distribution or
dissemination thereof to the shareholders of the Company, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they
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are made, not
misleading, except that no representation or warranty is made by Parent or Purchaser with respect
to statements made therein based on information supplied by the Company for inclusion in the Offer
Documents. The Offer Documents will comply as to form in all material respects with applicable
provisions of the Exchange Act and the rules and regulations thereunder.
(b) The registration statement filed under Chapter 80B of the Minnesota Statutes will comply
as to form in all material respects with applicable provisions of Chapter 80B of the Minnesota
Statutes, except that no representation or warranty is made by Parent or Purchaser with respect to
statements made therein based on information supplied by the Company for inclusion in such
registration statement.
Section 4.7. Ownership of Company Capital Stock. Neither Parent nor Purchaser beneficially
owns, or at any time during the last three years has beneficially owned, any share of the Common
Stock or any option, warrant or other right to acquire any shares of the Common Stock.
Section 4.8. Sufficient Funds. As of the date of this Agreement, Parent and Purchaser have
available to them or committed to them under the Financing Commitment, a copy of which has been
provided to the Company prior to the execution of this Agreement, and will have available to them
as of the Acceptance Time, funds necessary to consummate the Transactions and to perform their
respective obligations under this Agreement.
Section 4.9. Purchaser. Purchaser was formed solely for the purpose of engaging in the
Transactions. As of the date of this Agreement and at all times prior to and as of the Effective
Time, all of the outstanding capital stock of Purchaser is and will be owned directly by Eisai US
and indirectly by Parent. Purchaser has not and, prior to the Effective Time, will not have
incurred any obligations or liabilities or engaged in any business activities of any type
whatsoever other than those incident to its formation and pursuant to this Agreement and the
Transactions.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
Section 5.1. Conduct of Business by the Company Pending the Merger. Except as set forth in
Section 5.1 of the Company Disclosure Schedule, as expressly required by this Agreement or
as approved in writing by Parent (which approval shall not be unreasonably withheld or delayed),
from the date of this Agreement until the earlier of (A) the valid termination of this Agreement
pursuant to Section 8.1 and (B) the Effective Time, the Company and the Company Subsidiaries shall
conduct their respective businesses in all material respects in the ordinary course consistent with
past practice and, to the extent consistent therewith, the Company and the Company Subsidiaries
shall use their respective reasonable best efforts to preserve their business organizations intact
and maintain existing relations and goodwill with Governmental Entities (including maintaining good
communication with the FDA and other Governmental Entities), licensors, customers, suppliers,
distributors, creditors, lessors, employees and business associates and keep available the services
of the Company’s and the
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Company Subsidiaries’ present employees and agents. Without limiting the
generality of the foregoing, except as set forth in Section 5.1 of the Company Disclosure
Schedule, as expressly required by this Agreement or as approved in writing by Parent (which
approval shall not be unreasonably withheld or delayed), from the date of this Agreement until the
earlier of (x) the valid termination of this Agreement pursuant to Section 8.1 and (y) the
Effective Time, the Company shall not, and shall not permit any of the Company Subsidiaries to,
(a) amend the Company Governing Documents or comparable governing documents of the Company
Subsidiaries or amend the terms of any outstanding security of the Company or any of the Company
Subsidiaries;
(b) split, combine, subdivide or reclassify any shares of its capital stock or any securities
convertible or exchangeable into or exercisable for any shares of its capital stock;
(c) declare, set aside, make or pay any dividend or other distribution payable in cash, stock,
property or otherwise (or any combination thereof) with respect to its capital stock or enter into
any agreement with respect to the voting of its capital stock;
(d) redeem, purchase or otherwise acquire, directly or indirectly, or offer to redeem,
purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or any other
Equity Interests or any securities convertible or exchangeable into or exercisable for any shares
of its capital stock;
(e) issue, sell, pledge, deliver, transfer, dispose of or encumber or authorize the issuance,
sale, pledge, delivery, transfer, disposal of or encumbrance of, any shares of its capital stock or
securities convertible or exchangeable into or exercisable for any shares of its capital stock, or
grant any Company Stock Rights, Restricted Stock or warrants, calls, commitments or rights of any
kind to acquire any shares of its capital stock or any securities convertible or exchangeable into
or exercisable for any shares of such capital stock, or grant to any Person any right the value of
which is based on the value of Shares or other capital stock, other than the issuance of Shares
reserved for issuance on the date of this Agreement pursuant to the valid exercise of the Company
Stock Rights outstanding on the date of this Agreement or approve any third party becoming an
“interested shareholder” under Section 302A.011, Subd. 49 of the MBCA (other than at the time of
approval by the Company Board of Directors of a Superior Proposal as contemplated by Section
8.1(a)(iii));
(f) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one
transaction or any series of related transactions any capital stock or other Equity Interests in
any Person or any business or division of any Person or all or substantially all of the assets of
any Person (or any business or division thereof);
(g) transfer, lease, license, sell, mortgage, pledge, surrender, encumber, divest, cancel,
abandon or allow to lapse or expire or otherwise dispose of any of its material assets, licenses,
operations, rights, product lines, businesses or interests therein of the Company or any of the
Company Subsidiaries, including capital stock of any of the Company Subsidiaries, other than (i) in
the ordinary course of business consistent with past practice, and (ii) dispositions of equipment
and property no longer used in the operation of the businesses of the Company or
- 41 -
any Company
Subsidiary and with a fair market value not in excess of $1,000,000 in the aggregate;
(h) (i) incur or assume any indebtedness for borrowed money or issue or sell any debt
securities, except indebtedness for borrowed money incurred in the ordinary course of business
consistent with past practice and not to exceed $500,000 in the aggregate; (ii) assume, guarantee,
endorse or otherwise become liable or responsible (whether directly, contingently or
otherwise) for the indebtedness of any other Person; or (iii) make any loans, advances or
capital contributions to, or investments in, any other Person, other than any direct or indirect
wholly-owned Company Subsidiary;
(i) other than in the ordinary course of business consistent with past practice or as required
by applicable law or the terms of any binding agreement, and in the case of any officer or director
of the Company only to the extent that the Compensation Committee has duly approved such action as
an Employment Compensation Arrangement, make any change in, or accelerate the vesting of, the
compensation or benefits payable or to become payable to, or grant any severance or termination pay
to, any of its officers, directors or employees, or enter into or amend any employment, severance,
retention, change in control, termination pay, collective bargaining or other agreement or any
equity based compensation, pension, deferred compensation, welfare benefits or other employee
benefit plan or arrangement with any such officer, director or employee, or make any loans to any
of its officers, directors or employees, or make any change in its existing borrowing or lending
arrangements for or on behalf of any of such officer, director or employee pursuant to a Benefit
Plan or otherwise;
(j) other than in the ordinary course of business consistent with past practice or as required
by applicable law or the terms of any agreement or plan, and in the case of any officer or director
of the Company only to the extent that the Compensation Committee has duly approved such action as
an Employment Compensation Arrangement, (i) pay or make any accrual or arrangement for payment of
any pension, retirement allowance or other employee benefit pursuant to any existing plan,
agreement or arrangement to any officer, director or employee of the Company or pay or agree to pay
or make any accrual or arrangement for payment to any such officer, director or employee of any
amount relating to unused vacation days; or (ii) adopt or pay, grant, issue, accelerate or accrue
salary or other payments or benefits pursuant to any pension, profit-sharing, bonus, incentive,
deferred compensation, stock purchase, group insurance, severance pay, retirement or other employee
benefit plan, agreement or arrangement, or any employment agreement with or for the benefit of any
Company director, officer or employee, whether past or present, or amend in any material respect
any such existing plan, agreement or arrangement in a manner inconsistent with the foregoing;
(k) except as announced prior to the date of this Agreement, announce, implement or effect any
material reduction in labor force, lay-off, early retirement program, severance program or other
program or effort concerning the termination of employment of employees of the Company, other than
routine employee terminations;
(l) enter into any agreement or arrangement that limits or otherwise restricts the Company or
any Company Subsidiary, or after the Effective Time, Parent or its affiliates or any successor
thereof, from engaging or competing in any line of business or in any location or
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otherwise enter
into any agreements or arrangements imposing material changes or restrictions on its assets,
operations or businesses;
(m) change any of its significant accounting policies, except for such changes required by
changes in applicable GAAP or SEC Regulation S-X;
(n) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization of the Company (other than the Merger);
(o) create or incur any Lien material to the Company or any of the Company Subsidiaries not
incurred in the ordinary course of business consistent with past practice, other than Permitted
Liens;
(p) except as set forth in the capital budgets set forth in Section 5.1(p) of the
Company Disclosure Schedule and consistent therewith, make or authorize any capital expenditure in
excess of $500,000 in the aggregate during any 12 month period;
(q) except in the ordinary course of business consistent with past practice, settle any
litigation or other proceedings before a Governmental Entity for an amount in excess of $500,000 or
any of its obligation or liability in excess of such amount; provided, however,
that neither the Company nor any Company Subsidiary shall settle any litigation or other
proceedings before any Governmental Entity (regardless of the amount involved) if any such
settlement would impose any material obligation or restriction on the Company (or after the
Effective Time, Parent or any of its Subsidiaries) or on the Company’s (or after the Effective
Time, Parent’s or any of its Subsidiaries’) ability to own or operate any of its assets, licenses,
operations, rights, product lines, businesses or interests therein or require any material changes
(including changes to any licensing arrangement) to the businesses of the Company or any Company
Subsidiary (or after the Effective Time, Parent or any of its Subsidiaries);
(r) other than in the ordinary course of business consistent with past practice, amend, modify
or terminate any Company Material Contract, or cancel, modify or waive any material debts or claims
held by it or waive any material rights;
(s) make or change any Tax election, amend any material Tax Return, change any method of Tax
accounting, settle or finally resolve any Tax consent;
(t) take any action or omit to take any action that reasonably would be expected to result in
any of the Offer Conditions set forth in Annex I and any of the conditions to the Merger set forth
in Article VII not being satisfied; or
(u) enter into any agreement, contract, commitment or arrangement to do any of the foregoing,
or authorize any of the foregoing.
Notwithstanding the foregoing, the parties to this Agreement acknowledge and agree that (i)
nothing contained in this Agreement shall give Parent or Purchaser, directly or indirectly, the
right to control or direct the Company’s operations for purposes of the HSR Act or any other
applicable antitrust or competition law prior to the expiration or termination of any
- 43 -
applicable
HSR waiting period or any other applicable antitrust or competition law waiting period, or prior to
receipt of any applicable approval under any antitrust or competition law, and (ii) notwithstanding
anything to the contrary set forth in this Agreement, no consent of Parent or Purchaser will be
required with respect to any matter set forth in the Agreement to the extent the requirement of
such consent would violate any applicable law.
Section 5.2. Conduct of Business by Parent and Purchaser Pending the Merger. From the date of
this Agreement until the Effective Time, except as otherwise contemplated by this Agreement, Parent
and Purchaser agree that they shall not, directly or indirectly, knowingly take or cause to be
taken any action that reasonably would be expected to materially delay or impair the consummation
of the Transactions.
Section 5.3. No Solicitation; Unsolicited Proposals.
(a) From the date of this Agreement until the Effective Time or, if earlier, the termination
of this Agreement pursuant to Section 8.1, neither the Company nor any Company Subsidiary shall,
nor shall the Company or any Company Subsidiary authorize or permit any of their respective
officers, directors, employees, investment bankers, financial advisors, attorneys, brokers,
accountants or other agents or advisors (collectively, “Representatives”) to, and the
Company shall instruct its directors and officers and the investment bankers, financial advisors
and attorneys involved in the Transactions not to, directly or indirectly, (i) solicit, initiate or
knowingly encourage or otherwise facilitate (including by way of furnishing non-public information)
any inquiries relating to, or any effort to make or the making or submission of, or any inquiry,
offer, proposal or indication of interest that constitutes, or reasonably could be expected to lead
to, any Acquisition Proposal, (ii) participate, engage in or continue any discussions or
negotiations with, or disclose or provide any non-public information or data relating to the
Company or any of the Company Subsidiaries to, or afford access to the properties, assets, books or
records or employees of the Company or any of the Company Subsidiaries to, any Person or “group”
(as defined under Section 13(d) of the Exchange Act ), other than Parent and its affiliates and
their respective Representatives (any such Person or “group” and its Representatives (excluding the
Company’s and Parent’s Representatives in their capacity as such), a “Third Party”)
relating to any Acquisition Proposal, (iii) accept, approve, endorse or recommend to the Company’s
shareholders any Acquisition Proposal, or (iv) enter into any agreement, arrangement, contract or
commitment (including any agreement in principle or letter of intent or understanding) with respect
to or contemplating any Acquisition Proposal or enter into any agreement, arrangement, contract or
commitment requiring the Company to abandon, terminate or fail to consummate the Transactions. The
Company shall, and shall cause the Company’s Representatives to, immediately cease and terminate
any existing solicitation, encouragement, activity, discussion or negotiation with any Third Party
heretofore conducted by the Company or its Representatives with respect to any Acquisition Proposal
or Acquisition Transaction. The Company also shall promptly (and in any event on or before the
second business day following the date of this letter) request each Person that has heretofore
executed a confidentiality agreement in connection with its consideration of acquiring the Company
or any of the Company Subsidiaries to return or destroy all confidential information heretofore
furnished to such Person by or on behalf of the Company or any of the Company Subsidiaries.
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(b) Notwithstanding the restrictions set forth in Section 5.3(a), if and only to the extent
that, at any time prior to, but not after, the Acceptance Time, (i) the Company receives an
unsolicited bona fide written Acquisition Proposal from a Third Party under circumstances in which
the Company and its Representatives have complied with the Company’s obligations under Section
5.3(a) (it being understood and agreed for purposes of this Agreement that, so long as no actions
inconsistent with the Company’s obligations under this Section 5.3 are taken by the
Company or its Representatives after the execution of this Agreement by the parties hereto, an
Acquisition Proposal shall not be considered to have been solicited by the Company or any of its
Representatives as a result of any actions taken prior to the execution of this Agreement by the
parties hereto) and (ii) the Company Board of Directors determines in good faith based on the
information then available (after consultation with the Company’s financial advisor and legal
counsel) that (x) such Acquisition Proposal is, or reasonably could be expected to lead to, a
Superior Proposal, and (y) such action is likely to be required in order for the directors to
comply with their fiduciary duties under applicable law, then the Company may, subject to providing
Parent prior written notice (which notice shall contain a statement to the effect that the Company
Board of Directors has made the determination required by this Section 5.3(b)) and the Company
intends to take one or more of the actions provided in this Section 5.3(b), (I) participate or
engage in any discussions or negotiations with such Third Party, or (II) disclose or provide in
response to a request therefor by such Third Party any public or non-public information or data
relating to the Company or any Company Subsidiaries, or afford access to the properties, assets,
books or records or Representatives of the Company and the Company Subsidiaries to, such Third
Party and any potential financing sources of Third Party; provided, that the disclosure or
provision of any non-public information or data to such Third Party is made pursuant to an executed
confidentiality agreement on terms no less restrictive to such Third Party with respect to
confidential information than those included in the Confidentiality Agreement and, with respect to
any other provisions, as are comparable to those other provisions to the extent contained in the
Confidentiality Agreement, and that a copy of any such non-public information or data is delivered
simultaneously to Parent to the extent it has not previously been so furnished to Parent.
(c) In addition to any notice obligations contemplated by Section 5.3(b), the Company shall as
promptly as practicable (and in any event within 24 hours) notify Parent of (x) any Acquisition
Proposal that the Company or any of its Representatives receives, (y) any request for information
or inquiry that the Company or any of its Representatives receives which relates to or could
reasonably lead to an Acquisition Proposal, (z) any request for discussions or negotiations that
the Company or any of its Representatives receives which relates to or could reasonably lead to an
Acquisition Proposal, which notification shall include, (i) the material terms and conditions of
such Acquisition Proposal, request or inquiry (including, if applicable, copies of any written
requests, proposals or offers, including proposed agreements) and (ii) the identity of the Person
making such Acquisition Proposal, request or inquiry. The Company shall keep Parent informed on a
current basis (but in any event within 24 hours) of the status and terms and conditions (including
all amendments or proposed amendments) of any such Acquisition Proposal, request or inquiry.
(d) Nothing contained in this Agreement shall prohibit the Company from (i) issuing a
“stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act
or taking and disclosing to its shareholders a position required by Rule 14d-9
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or Rule 14e-2
promulgated under the Exchange Act, in each case after the commencement of an offer pursuant to
Rule 14d-2 promulgated under the Exchange Act, (ii) issuing a statement in connection with an
Acquisition Proposal that does not involve the commencement of an offer pursuant to Rule 14d-2
promulgated under the Exchange Act, so long as the statement includes no more information than
would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under
the Exchange Act if such provision was applicable, or (iii)
other than in connection with or relating to an Acquisition Proposal, otherwise disclosing any
information to its shareholders that the Company Board of Directors determines in good faith (after
consultation with the Company’s legal counsel) that it is required to disclose in order to act in a
manner that is likely to be required to comply with the directors’ fiduciary duties under
applicable law or not to violate any other provisions of applicable law; provided,
however, that if (x) such “stop-look-and-listen communication” or other disclosure
withholds, withdraws, qualifies or adversely modifies or amends the Company Recommendation or takes
a favorable position with respect to an Acquisition Proposal of a Person other than Parent or any
or its Subsidiaries, or (y) continues to take no position with respect to any offer described in
clause (i) above after the close of business on the tenth business day after the commencement of an
offer pursuant to Rule 14d-2 promulgated under the Exchange Act, or continues to take no position
with respect to an offer described in clause (ii) above after the close of business on the tenth
business day after the Acquisition Proposal is first generally announced to the public, such
communication, statement or other disclosure shall be deemed to be a Company Change in
Recommendation and Parent shall have the right to terminate this Agreement as set forth in
Section 8.1. For the avoidance of doubt, if a communication or statement covered by clause (i) or
(ii) above contains no more information than the information that is required by Rule 14d-9(f)
promulgated under the Exchange Act, or would be required if such provision was applicable, it shall
not be deemed to be a Company Change in Recommendation as long as prior to the close of business on
the tenth business day after such communication or statement the Company publicly reaffirms the
Company Recommendation without any qualification or adverse modification or amendment.
Section 5.4. Board Recommendation.
(a) Subject to the provisions of Section 5.4(c), the Company Board of Directors shall (i)
recommend that the holders of Shares accept the Offer, tender their Shares to Purchaser pursuant to
the Offer and, if approval and adoption of this Agreement is required under the MBCA, approve and
adopt this Agreement in accordance with the provisions of the MBCA (the “Company
Recommendation”), and (ii) include the Company Recommendation in the Schedule 14D-9 and permit
Parent and Purchaser to include the Company Recommendation in the Offer Documents.
(b) Subject to the provisions of Section 5.4(c), neither the Company Board of Directors nor
any committee thereof shall withhold, withdraw, qualify, modify or amend (or publicly propose or
resolve to withhold, withdraw, qualify, modify or amend) in any manner adverse to Parent or
Purchaser (including by virtue of disclosure in the Schedule 14D-9 or any amendment thereto) the
Company Recommendation, the approval by the Company Board of Directors of this Agreement and the
Transactions, including the Offer and the Merger, or the approval by the Compensation Committee of
the Company Compensation Arrangements as Employment Compensation Arrangements for purposes of
satisfying the requirements of the
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non-exclusive safe-harbor in accordance to Rule 14d-10(d)(2)
promulgated under the Exchange Act (a “Company Change in Recommendation”).
(c) Notwithstanding anything to the contrary set forth in this Agreement, the Company Board of
Directors may effect a Company Change in Recommendation at any time prior to, but not after, the
Acceptance Time:
(i) If (A) the Company Board of Directors has received an unsolicited bona fide
written Acquisition Proposal (that has not been withdrawn) that the Company Board of
Directors (1) determines in good faith, after consultation with outside counsel, that such
Acquisition Proposal constitutes a Superior Proposal and such Superior Proposal shall not
have arisen in connection with a breach by the Company or any Company Subsidiary or any of
their respective Representatives of the terms of Section 5.3(a), and (2) determines that
such action is likely to be required in order for the directors to comply with their
fiduciary duties under applicable law, and (B) the Company shall have provided to Parent a
written notice (a “Notice of Recommendation Change”) of its intention to make such
Company Change in Recommendation (which notice shall not be deemed to be, in and of itself,
a Company Change in Recommendation), specifying all information required under Section
5.3(c); provided, however, that no Company Change in Recommendation may be
made until (x) after at least three business days following Parent’s receipt of the Notice
of Recommendation Change and (y) after the Company has (and has caused its Representatives
to have) negotiated in good faith with Parent and Purchaser to enable Parent and Purchaser
to make a binding written offer that is at least as favorable to the Company’s shareholders
as the “Superior Proposal” such that the Acquisition Proposal of the other party no longer
is a “Superior Proposal.” In determining whether to make a Company Change in Recommendation
in response to a Superior Proposal or otherwise, the Company Board of Directors shall take
into account, in addition to any other relevant information available to the Company Board
of Directors, any changes to the terms of this Agreement proposed by Parent in any binding
written offer and any other information provided by Parent in response to such notice. Any
material amendment to any Acquisition Proposal will be deemed to be a new Acquisition
Proposal for purposes of this Section 5.4, including with respect to the notice period
referred to in this Section 5.4(c), provided, that such notice period for such
amendment shall be two business days from the time such amendment is provided to Parent.
(ii) Under the circumstances contemplated by clause (iii) of Section 5.3(d).
(d) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall
not be entitled to enter into any agreement (other than a confidentiality agreement as contemplated
by Section 5.3(b) and other than an agreement with any of the Company’s Representatives in their
capacity as such) with respect to a Superior Proposal unless this Agreement has been or
concurrently is being terminated pursuant to Section 8.1 and the Company shall have confirmed in
writing its obligation to make the payment contemplated by Section 8.2(b) within the time period
contemplated thereby.
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Section 5.5. Matters Relating to Certain Company Indebtedness.
(a) The Company shall, and shall cause the Company Subsidiaries to, take all necessary actions
to comply with its obligations under the Company Indebtedness Agreements, including, if required,
by redeeming or offering to repurchase any Company Notes issued pursuant to the Company
Indebtedness Agreements. The Company shall give prompt notice to Parent and Purchaser of any
actions taken in connection with this provision.
(b) Parent shall, and shall cause Purchaser to, comply with the requirements of the Company
Indebtedness Agreements implicated by the Transactions, including, if required by the governing
documents of the Company Indebtedness Agreements, by the entry into one or more supplemental
indentures, as required by the governing documents of the Company Indebtedness Agreements, at or
promptly after the Effective Time whereby Parent and Purchaser expressly assume all outstanding
obligations of the Company pursuant to the Company Indebtedness Agreements to the extent required
thereunder.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1. Notification of Certain Matters. The Company shall give prompt notice to Parent
and Purchaser, and Parent and Purchaser shall give prompt notice to the Company, of (a) the
occurrence or non-occurrence of any fact or event whose occurrence or non-occurrence, as the case
may be, reasonably would be likely to cause any Offer Condition to fail to be satisfied at any time
from the date of this Agreement to the Acceptance Time (except to the extent any Offer Condition
refers to a specific date) and (b) any material failure of the Company, Purchaser or Parent, as the
case may be, or any Representative thereof, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided, however, that
the delivery of any notice pursuant to this Section 6.1 shall not limit or otherwise affect the
remedies available hereunder to the party hereto receiving such notice or the representations or
warranties of the parties hereto, or the conditions to the obligations of the parties hereto. Each
of the Company, Parent and Purchaser shall give prompt notice to the other parties hereto of any
notice or other communications from any third party alleging that the consent of such third party
is or may be required in connection with the Transactions.
Section 6.2. Access.
(a) Subject to applicable law and except as otherwise contemplated by this Agreement, from the
date of this Agreement until the Effective Time, the Company shall (and shall cause the Company
Subsidiaries to) (i) upon reasonable prior notice, give Parent and Purchaser and their respective
officers and other authorized Representatives reasonable access during normal business hours to its
Company Agreements, contracts, books, records, Tax Returns, analysis, projections, plans, systems,
personnel, commitments, offices and other facilities and properties of the Company and its
accountants and accountants’ work papers and (ii) furnish Parent and Purchaser on a timely basis
with such financial and operating data and other information with respect to its business,
properties, personnel and Company Agreements as Parent and Purchaser may from time to time
reasonably request and use its reasonable best
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efforts to make available at all reasonable times
during normal business hours to officers and other authorized Representatives of Parent and
Purchaser the appropriate individuals (including management personnel, attorneys, accountants and
other professionals) for discussion of the Company’s business, properties, prospects and personnel
as Parent or Purchaser may reasonably request. In addition, the Company shall furnish promptly to
Parent (x) a copy of each material report, schedule, statement and other document submitted or
filed by it with any Governmental
Entity and (y) the internal or external reports prepared by it in the ordinary course of
business that are reasonably required by Parent promptly after such reports are made available to
the Company’s personnel.
(b) No investigation heretofore conducted or conducted pursuant to this Section 6.2 shall
affect or be deemed to modify any representation or warranty made by the parties hereunder or any
conditions to the obligations of the parties hereunder or any condition or requirement set forth in
Annex I.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall
not be required to provide access, or to disclose information, pursuant to Section 6.2(a) where
such access or disclosure would, in the Company’s reasonable judgment, (i) result in the disclosure
of any Trade Secrets of third parties or violate any of the Company’s obligations with respect to
confidentiality to any third party or otherwise breach, contravene or violate any then effective
Company Agreement; provided, that the Company shall have used reasonable best efforts to
obtain the consent of such third party to such access or disclosure without requiring the Company
to pay any amount or waive any rights to obtain such consent, (ii) jeopardize the attorney-client
or other privileges of the Company or (iii) breach, contravene or violate any applicable law
(including the HSR Act or any other antitrust or competition law).
Section 6.3. Consents and Approvals.
(a) Each of the Company, Parent and Purchaser shall (and shall cause their respective
Subsidiaries to) (i) (A) use its reasonable best efforts to make or cause to be made the
applications or filings required to be made by Parent, Purchaser or the Company or any of their
respective Subsidiaries under or with respect to the HSR Act, any Required Approvals or any other
applicable laws (including Chapter 80B of the Minnesota Statutes) in connection with the
authorization, execution and delivery of this Agreement and the consummation of the Transactions,
and (B) subject to Section 9.3, pay any fees due in connection with such applications or filings,
as promptly as is reasonably practicable, and in any event within 10 business days after the date
hereof or sooner if required by law or regulations, (ii) use its reasonable best efforts to (A)
take, or cause to be taken, all appropriate action, and do, or cause to be done, all things
reasonably necessary, proper or advisable under any applicable law or otherwise to consummate and
make effective the Transactions as promptly as practicable, (B) obtain from any Governmental
Entities any consents, licenses, permits, waivers, clearances, approvals, waiting period
terminations, authorizations or orders required to be obtained or made by Parent, Purchaser or the
Company or any of their respective Subsidiaries in connection with the Transactions, (C) obtain all
consents, approvals or waivers from, or take other actions with respect to, third parties necessary
or advisable to be obtained or taken in connection with the Transactions, (D) comply at the
earliest practicable date with any request under or with respect to the HSR Act, any Required
Approvals and any such other applicable laws for additional
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information, documents or other
materials received by Parent or the Company or any of their respective Subsidiaries from the United
States Department of Justice, the United States Federal Trade Commission or any other Governmental
Entity in connection with such applications or filings or the Transactions and (iii) subject to
applicable law relating to exchange of information, use its reasonable best efforts to coordinate
and cooperate with respect to, review in advance of, consult with each other (to the extent
practicable) on, consider in good faith and give due
consideration to all reasonable additions, deletions or changes suggested by the other party
hereto in connection with (x) any filing under or with respect to the HSR Act, any Required
Approvals or any such other applicable laws and (y) any filings, conferences or other submissions
related to resolving any investigation or other inquiry by any Governmental Entity, in each case in
connection with the Offer, the Merger and the other Transactions. Subject to applicable law
relating to exchange of information, each of the Company and Parent shall, and shall cause their
respective affiliates to, furnish to the other party hereto all information necessary for any such
application or other filing to be made in connection with the Transactions; provided,
however, that material may be redacted (x) as necessary to comply with contractual
arrangements, and (y) as necessary to address attorney client or other privileges or
confidentiality concerns. Any party hereto may, as it deems advisable or necessary, reasonably
designate any competitively sensitive material provided to any other party hereto under this
Agreement as “for outside counsel only” or “for special access only.” Such materials and
information contained therein shall be given only to the outside legal counsel of the recipient or
other Persons agreed to in writing by the disclosing party and will be subject to such additional
confidentiality restrictions as the party disclosing such information shall reasonably require.
(b) Subject to applicable law and as required by any Governmental Entity, each of the Company
and Parent shall promptly inform the other of any material communication with, and any proposed
understanding, undertaking or agreement with, any Governmental Entity regarding any application or
filing set forth in Section 6.3(a). If a party hereto intends to participate in any meeting or
conference call with any Governmental Entity in respect of any such filings, investigation or other
inquiry, then to the extent practicable such party shall give the other party hereto reasonable
prior notice of such meeting or conference call and invite Representatives of the other party
hereto to participate in the meeting or conference call with the Governmental Entity unless
prohibited by such Governmental Entity. The parties hereto shall coordinate and cooperate with one
another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments,
opinions and proposals made or submitted by or on behalf of any party hereto in connection with all
meetings, actions and proceedings under or relating to any such application or filing.
(c) From the date of this Agreement until the consummation of the Offer, each of Parent,
Purchaser and the Company shall promptly notify the other in writing of any pending or, to the
knowledge of Parent, Purchaser or the Company (as the case may be), threatened action, suit,
arbitration or other proceeding or investigation by any Governmental Entity or any other Person (i)
challenging the Transactions or seeking material damages in connection with the Transactions or
(ii) seeking to restrain or prohibit the consummation of the Transactions or otherwise limit in any
material respect the right of Parent, Purchaser or any affiliate of Parent or Purchaser to own or
operate all or any portion of the businesses or assets of the Company. The Company and Parent
shall consult with each other regarding the defense or settlement of any such action, suit,
arbitration or other proceeding or investigation.
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Notwithstanding the foregoing, neither Parent
nor Purchaser shall be required to provide any notice or information to the Company, and the
Company shall not be required to provide any notice or information to Parent or Purchaser, the
provision of which Parent, Purchaser or the Company in good faith determines is reasonably likely
to adversely affect Parent’s, Purchaser’s or the Company’s or any other Person’s attorney client
privilege.
(d) If any administrative or judicial action or proceeding is instituted or threatened to be
instituted by a Governmental Entity challenging the Transactions as violative of law, each of the
Company, Parent and Purchaser shall, and shall cause their respective affiliates to, cooperate and
use their reasonable best efforts to contest and resist, except insofar as the Company, Parent and
Purchaser otherwise may agree, any such action or proceeding, including any action or proceeding
that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or
restrict consummation of the Transactions.
(e) Notwithstanding anything set forth in this Agreement, neither Parent nor Purchaser, or any
of their affiliates, shall have the right under this Agreement or otherwise, directly or
indirectly, to control or direct the operations of the Company prior to the consummation of the
Offer. Prior to the consummation of the Offer, the Company shall exercise, consistent with the
terms and conditions of this Agreement, control and supervision over its own business operations.
(f) Nothing in this Agreement, including this Section 6.3, shall require, or be construed to
require, Parent (i) to proffer to, or agree to, sell, divest, lease, license, transfer, dispose of
or otherwise hold separate before or after the Effective Time, any assets, licenses, operations,
rights, product lines, businesses or interest therein of the Company or any Company Subsidiary that
are material to the Company and the Company Subsidiaries taken as a whole (“Company Material
Businesses”), (ii) to consent to the sale, divestiture, lease, license, transfer or disposition
by the Company or any Company Subsidiary of any Company Material Businesses or to consent to any
agreement by Parent or the Company to take any of the foregoing actions, (iii) to proffer to, or
agree to, sell, divest, lease, license, transfer, dispose of or otherwise hold separate before or
after the Effective Time, any assets, licenses, operations, rights, product lines, businesses or
interest therein of Parent or any Parent Subsidiary that are material to Parent and the Parent
Subsidiaries taken as a whole (“Parent Material Businesses”), (iv) to consent to the sale,
divestiture, lease, license, transfer or disposition by Parent or any Parent Subsidiary of any
Parent Material Businesses or to consent to any agreement by Parent to take any of the foregoing
actions, or (v) or to agree to any material changes (including through a licensing arrangement) or
material restrictions on, or other impairment of Parent’s ability to own or operate, any of the
Company Material Businesses or Parent Material Businesses, or Parent’s ability to vote, transfer,
receive dividends or otherwise exercise full ownership rights with respect to the capital stock of
the Surviving Company. Nothing in this Agreement shall require, or be construed to require, Parent
or any of its affiliates to take any other action under this Section 6.3 if the United States
Department of Justice or the United States Federal Trade Commission successfully obtains from a
court of competent jurisdiction a permanent injunction enjoining consummation of the Offer, the
Merger or any other Transactions.
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Section 6.4. Publicity.
(a) So long as this Agreement is in effect, neither the Company nor Parent, nor any of their
respective affiliates, shall issue or cause the publication of any press release or other
announcement with respect to the Offer, the Merger, this Agreement or any other Transactions
without consulting with the other party hereto, except as may be required by applicable law or by
any listing agreement with or the listing rules of the Tokyo or Osaka Stock Exchanges, NASDAQ, any
national securities exchange or trading market; provided, however,
that the party hereto seeking to issue or cause the publication of any press release or other
announcement with respect to the Offer, the Merger, this Agreement or any other Transaction shall
not be required to provide any such consultation to the other party hereto in connection with any
disclosure contemplated by Section 5.3(d).
(b) Prior to making any material or broadly disseminated written or material oral
communication to the directors, officers or employees of the Company or any of the Company
Subsidiaries (or to a particular class of employees of the Company) pertaining to compensation or
benefits matters that are affected by the Transactions, the Company shall provide Parent with a
copy of the intended communication, Parent shall have a reasonable period of time to review and
comment on the communication, and Parent and the Company shall reasonably cooperate in providing
any such mutually agreeable communication.
Section 6.5. Directors’ and Officers’ Insurance and Indemnification.
(a) For a period of six years after the Effective Time, Parent shall cause the Surviving
Corporation to honor and fulfill in all respects, and the Surviving Corporation shall honor and
fulfill in all respects, the indemnification obligations of the Company to the current and former
directors, officers and employees of the Company determined as of the Effective Time (the
“Covered Persons”) to the fullest extent permissible under applicable provisions of the
MBCA (i) under the Company Charter and Company Bylaws as in effect on the date of this Agreement
and (ii) under the provisions of the MBCA, arising out of or relating to actions or omissions in
their capacity as directors, officers or employees of the Company occurring at or prior to the
Effective Time, including in connection with the approval of this Agreement and the Transactions;
provided, however, that in the event any claim or claims are asserted or made
within such six-year period, all rights to indemnification in respect of any such claim or claims
shall continue until disposition of any and all such claims; and provided, further,
that any determination required to be made with respect to whether an officer’s or director’s
conduct complies with the standards set forth under Minnesota law and the Company Governing
Documents shall be made by special legal counsel (as defined in the MBCA) selected by the Surviving
Corporation in accordance with Section 302A.521 of the MBCA.
(b) The Surviving Corporation shall advance expenses (including reasonable legal fees)
incurred in the defense of any claim, action, suit, proceeding or investigation in respect of any
matters subject to indemnification pursuant to Section 6.5(a) to the extent permitted by the
applicable provisions of the MBCA; provided, however, that any Person to whom
expenses are advanced undertakes to repay such advanced expenses if it ultimately is determined
that such Person is not entitled to indemnification.
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(c) Any Covered Persons wishing to claim indemnification under Section 6.5(a), upon learning
of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof,
but the failure to so notify shall not relieve Parent or the Surviving Corporation of any liability
it may have to such Covered Persons except to the extent such failure materially prejudices the
indemnifying party, to the extent permitted under the MBCA. In the event of any such claim,
action, suit, proceeding or investigation (whether arising before or after the Effective Time),
except to the extent otherwise provided by applicable law, (i) Parent or the Surviving Corporation
shall have the right to assume the defense thereof and
Parent and, the Surviving Corporation shall not be liable to such Covered Persons for any
legal expenses of other counsel or any other expenses subsequently incurred by such Covered Persons
in connection with the defense thereof, except that if Parent or the Surviving Corporation elects
not to assume such defense or counsel for the Covered Persons advises that there are issues which
raise conflicts of interest between Parent or the Surviving Corporation and the Covered Persons,
the Covered Persons may retain counsel satisfactory to them, and Parent or the Surviving
Corporation shall pay all reasonable fees and expenses of such counsel for the Covered Persons
promptly as statements therefor are received; provided, however, that Parent and
the Surviving Corporation shall be obligated pursuant to this Section 6.5(c) to pay for only one
firm of counsel for all Covered Persons in any jurisdiction unless the use of one counsel for such
Covered Persons would present such counsel with a conflict of
interest; provided, that the
fewest number of counsels necessary to avoid conflicts of interest shall be used; (ii) the Covered
Person will cooperate in the defense of any such matter, and (iii) Parent and the Surviving
Corporation shall not be liable for any settlement effected without their prior written consent;
and provided, further, that Parent and the Surviving Corporation shall not have any
obligation hereunder to any Covered Person if and when a court of competent jurisdiction shall
ultimately determine, and such determination shall have become final and nonappealable, that the
indemnification of such Covered Person in the manner contemplated hereby is prohibited by law.
(d) For a period of six years after the Effective Time, the articles of incorporation and
bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to
indemnification, advancement of expenses and exculpation from liability or limitation of liability
of Covered Persons for periods prior to and including the Effective Time than are set forth, as of
the date of this Agreement, in the Company Charter and Company Bylaws, as the case may be.
(e) The Company shall and, if the Company is unable to, Parent shall cause the Surviving
Corporation as of the Effective Time to, obtain and pay for “tail” insurance policies prior to the
Effective Time, which policies shall provide the Covered Persons with directors’ and officers’
liability insurance (“D&O Insurance”) coverage of equivalent amount and on no less
favorable terms to the Covered Persons than that provided by the Company’s current D&O Insurance
for an aggregate period of at least six years with respect to claims arising from facts or events
that occurred on or before the Effective Time, including in connection with the approval of this
Agreement and the Transactions; provided, however, that the Parent and the Surviving Corporation
shall maintain such policies in full force and effect, and continue to honor their obligations
thereunder. If the Company and the Surviving Corporation for any reason fail to obtain such “tail”
insurance policies as of the Effective Time, Parent and the Surviving Corporation shall maintain
and extend the existing D&O Insurance of the Company as of the date of this Agreement for a period
of not less than six years after the Effective Time in respect
- 53 -
of claims arising in whole or in
part from facts or events that actually or allegedly occurred on or before the Effective Time,
including in connection with the approval of this Agreement and the Transactions; provided,
however, that Parent may substitute therefor policies of substantially equivalent coverage
and amounts containing terms no less favorable to the Covered Persons than the existing D&O
Insurance; provided, further, that if the existing D&O Insurance expires or is
terminated or cancelled during such period through no fault of Parent or the Surviving Corporation,
the Surviving Corporation shall obtain substantially equivalent D&O Insurance. Notwithstanding
anything to the contrary contained herein, in no event shall Parent or the
Surviving Corporation be required to pay aggregate annual premiums for D&O Insurance under
this Section 6.5(e) in excess of 200% of the aggregate annual premiums paid by the Company in 2006
for such purpose (the “Base Premium”), and if Parent or the Surviving Corporation is unable
to obtain the amount of insurance required by this Section 6.5(e) for such aggregate annual
premium, Parent or the Surviving Corporation shall obtain as much D&O Insurance as can be obtained
for aggregate annual premiums not in excess of 200% of the Base Premium. Parent and the Surviving
Corporation shall maintain such policies in full force and effect, and continue to honor their
obligations thereunder.
(f) In the event Parent or the Surviving Corporation, or any successor or assign of Parent or
Surviving Corporation, (i) consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity arising out of such consolidation or merger or (ii)
transfers all or substantially all of its assets to any other Person, then and in each such case
proper provision shall be made so that the continuing or surviving corporation or entity or
transferee of such assets, as the case may be, shall assume all of the obligations of Parent or the
Surviving Corporation, as the case may be, set forth in this Section 6.5.
(g) The Covered Persons (and their successors and heirs) are intended third party
beneficiaries of this Section 6.5, and, from and after the Acceptance Time, this Section 6.5 shall
not be amended in a manner that is adverse to the Covered Persons (including their successors and
heirs) or terminated without the consent of the Covered Persons (including their successors and
heirs).
Section 6.6. Section 16. The Company Board of Directors shall, to the extent necessary, take
appropriate action, prior to or as of the Effective Time, to exempt pursuant to Rule 16b-3(e)
promulgated under the Exchange Act, for purposes of Section 16(b) of the Exchange Act, the deemed
disposition and cancellation of the Shares, the Company Options, the Company Tandem Options-SARs
and RSUs in the Merger by applicable individuals.
Section 6.7. Obligations of Purchaser. Parent shall take all action necessary to cause
Purchaser and the Surviving Corporation to perform their respective obligations under this
Agreement and to consummate the Transactions, including the Offer and the Merger, upon the terms
and subject to the conditions set forth in this Agreement.
Section 6.8. Employee Benefits Matters.
(a) For a period of at least 12 months following the Effective Time, Parent shall (i) arrange
for each employee of the Company or any Company Subsidiary who becomes
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an employee of Eisai US (or
an employee of any Parent Subsidiary or affiliate (including by remaining an employee of the
Company or any Company Subsidiary)), within a reasonable period of time after the Effective Time,
to be eligible for a base salary and other compensation at a rate no less favorable in the
aggregate than such employee was receiving immediately prior to the Acceptance Time, and (ii)
arrange for the participants in the Benefit Plans (the “Benefit Plan
Participants”) who become employees of Eisai US (or employees of any Parent Subsidiary
or affiliate (including by remaining employees of the Company or any Company Subsidiary)), within a
reasonable period of time after the Effective Time (including all dependents), subject to the
limitations and restrictions of the Benefit Plans, to be eligible for benefits comparable in the
aggregate to those available to such employees (or dependents) immediately prior to the Acceptance
Time and to be treated in a manner so as to avoid any discontinuation of coverage;
provided, that nothing in this Section 6.8(a) shall require Parent or Eisai US to offer any
particular Benefit Plan Participant any particular benefit. Each Benefit Plan Participant shall,
to the extent permitted by applicable law, applicable Tax requirements and the terms of any
applicable employee benefit plans, and subject to any applicable break in service or similar rule,
receive credit for purposes of eligibility to participate, matching contributions, benefit accrual
and vesting under Eisai US employee benefit plans for years of service with the Company prior to
the Effective Time, except for benefits accrued under defined benefit pension plans, for purposes
of qualified early retirement benefit, or to the extent it would otherwise result in a duplication
of benefits. If applicable and permitted by the relevant Benefit Plan, Parent shall cause any and
all pre-existing condition limitations (or actively-at-work or similar limitations), eligibility
waiting periods and evidence of insurability requirements under any Eisai US employee benefit plans
to be waived with respect to such Benefit Plan Participants and their eligible dependents and shall
provide them with credit for any co-payments, deductibles or offsets (or similar payments) made
during the plan year that includes the Effective Time for purposes of satisfying any applicable
deductible, out-of-pocket, or similar requirements under any Eisai US employee benefit plans in
which they are eligible to participate after the Effective Time. Notwithstanding the foregoing,
nothing contained in this Agreement shall (1) be treated as an amendment of any particular Benefit
Plan, (2) give any third party any right to enforce the provisions of this Section 6.8 or (3)
obligate Parent, Eisai US, the Surviving Corporation or any of their affiliates to (A) maintain any
particular Benefit Plan or (B) retain the employment of any particular employee.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent shall also
cause the Surviving Corporation to perform the Company’s obligations under the change in control
and other agreements between the Company and certain of its officers and employees unless any such
officer or employee agrees otherwise in writing.
(c) Prior to the Acceptance Time, the Company shall amend any standard or general severance
policy, plan, program or other arrangement of the Company to clarify that such policy, plan program
or other arrangement shall not apply, and no severance payments or benefits pursuant to such
policy, plan, program or other arrangement will be payable to any employee of the Company subject
to any agreements that provide payments or benefits upon termination following a change in control
of the Company.
Section 6.9. Termination of 401(k) Plan. If Parent requests, by written notice to the Company
no later than seven days prior to the Effective Time, that the Company terminate any
- 55 -
Benefit Plan which is intended to meet the requirements of section 401(k) of the Code (each
such Benefit Plan, a “401(k) Plan”), the Company Board of Directors shall adopt resolutions
terminating, effective at the Effective Time, any such 401(k) Plan. At the Closing, the Company
shall provide Parent with executed resolutions of the Company Board of Directors authorizing such
termination.
Section 6.10. Rule 14d-10(d). Prior to the Effective Time, the Company (acting through the
Compensation Committee) shall use reasonable best efforts to take all such steps as may be required
to cause each agreement, arrangement or understanding entered into by the Company or any of the
Company Subsidiaries with any of its officers, directors or employees pursuant to which
consideration is paid to such officer, director or employee to be approved as an Employment
Compensation Arrangement and to satisfy the requirements of the non-exclusive safe-harbor set forth
in Rule 14d-10(d) promulgated under the Exchange Act.
Section 6.11. Stock Exchange De-listing and De-registration. Prior to the Closing Date, the
Company shall cooperate with Parent and use 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 applicable laws and rules and policies of the NASDAQ to enable the de-listing by the
Surviving Corporation of the Shares from the NASDAQ and the deregistration of the Shares under the
Exchange Act as promptly as practicable after the Effective Time.
Section 6.12. Other Actions by the Company.
(a) Prior to the Acceptance Time, the Company Board of Directors shall take all necessary
action to cause the Rights to cease to be exercisable, effective immediately prior to the
Acceptance Time, without payment of any consideration in respect thereof.
(b) If any anti-takeover statute is or may become applicable to the Offer, the Merger or the
other Transactions, the Company and the Company Board of Directors shall grant such approvals and
take such actions as are necessary so that the Offer, the Merger and the other 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 the Offer, the Merger and
the other Transactions.
Section 6.13. Cooperation Regarding Financing. Prior to the Closing, the Company shall
provide to Parent and Purchaser, and shall cause the Company Subsidiaries to, and shall use its
reasonable best efforts to cause the respective officers and employees of the Company and the
Company Subsidiaries (and reasonable commercial efforts to cause advisors, including legal and
accounting advisors) to, provide to Parent and Purchaser cooperation reasonably requested by Parent
in connection with the arrangement of the financing for the Transactions and related fees and
expenses (the “Financing”) pursuant to the commitment letter, dated as of December 8, 2007,
between JPMorgan Chase Bank, N.A. and Parent (the “Financing Commitment”), including (i)
participating in meetings, presentations, road shows, due diligence sessions, drafting sessions and
sessions with rating agencies, (ii) assisting with the preparation of materials for rating agency
presentations, offering documents, private placement memoranda, bank information memoranda,
prospectuses and similar documents required in connection with the Financing and the syndication
thereof, (iii) to the extent reasonably available on customary terms
- 56 -
and conditions, providing such comfort letters and legal opinions as can be delivered under
the circumstances upon the reasonable request of Parent, (iv) providing monthly financial
statements (excluding footnotes) to the extent the Company customarily prepares such statements in
the ordinary course of its business, and (v) entering into one or more credit or other agreements
on terms satisfactory to Parent in connection with the Financing immediately prior to the Effective
Time, and contingent on the occurrence of the Effective Time, to the extent direct borrowings or
debt incurrences by the Company or the Company Subsidiaries are contemplated by the Financing
Commitment; provided, however, that nothing herein shall require such cooperation
to the extent it would unreasonably interfere with the business or operations of the Company or the
Company Subsidiaries or require the Company to agree to pay any fees, reimburse any expenses or
give any indemnities prior to the Effective Time for which it is not reimbursed or indemnified
under this Agreement or to the extent any third parties who are provided information about the
Company in connection with the Financing Commitment are unwilling to provide a customary
confidentiality agreement for the benefit of the Company or any other Person. Parent shall,
promptly upon request by the Company, reimburse the Company for all reasonable and documented
out-of-pocket costs incurred by the Company or the Company Subsidiaries in connection with such
cooperation at the request of Parent and indemnify the Company for any loss incurred by the Company
or any of the Company Subsidiaries arising therefrom (other than arising from information provided
in writing by the Company or the Company Subsidiaries expressly for use in connection with the
Financing). Notwithstanding the foregoing, the Company shall not be required to provide any
information or take any actions under this Section 6.13 if the Company in good faith determines
that providing such information or taking such actions is reasonably likely to adversely affect the
Company’s or any other Person’s attorney client privilege.
ARTICLE VII
CONDITIONS
Section 7.1. Conditions to Each Party’s Obligations to Effect the Merger. The respective
obligations of each party hereto to consummate the Merger shall be subject to the satisfaction or
waiver in writing (where permissible) at or prior to the Effective Time of each of the following
conditions:
(a) This Agreement shall have been approved and adopted by the holders of a majority of the
then outstanding Shares, if required by applicable law;
(b) No statute, law, ordinance, rule or regulation shall have been enacted or promulgated by
any Governmental Entity which restrains, enjoins or prohibits the consummation of the Merger or the
other Transactions, and there shall be no judgment, order, writ, decree, award or injunction
(whether temporary, preliminary or permanent) of a court of competent jurisdiction in effect
restraining, enjoining or otherwise preventing the consummation of the Merger or the other
Transactions (collectively, an “Order”);
(c) Purchaser shall have accepted for payment and paid for, or caused to be accepted for
payment and paid for, all Shares validly tendered and not properly withdrawn
- 57 -
pursuant to the Offer (including pursuant to any “subsequent offer period” provided by
Purchaser pursuant to this Agreement); and
(d) Any waiting period (and any extension thereof) under the HSR Act or under any similar
foreign antitrust or competition law applicable to the Merger in any Significant Jurisdiction (and,
in the case of statutes or regulations in Significant Jurisdictions, the failure of which to obtain
would materially and adversely affect Parent and its Subsidiaries, taken as a whole, or reasonably
would be expected to result in criminal liability) shall have expired or terminated, or, where
applicable, approval under such laws shall have been obtained.
Section 7.2. Failure of Conditions. None of the Company, Parent or Purchaser may rely on the
failure of any condition set forth in Section 7.1 to be satisfied to excuse performance by such
party of its obligations under this Agreement if such failure was caused by such party’s failure to
act in good faith and in a manner consistent with the terms of this Agreement.
ARTICLE VIII
TERMINATION
Section 8.1. Termination.
(a) This Agreement may be terminated and the Transactions may be abandoned at any time before
the Acceptance Time:
(i) by either Parent (by action authorized by the Board of Directors of Parent) or the
Company (by action authorized by the Company Board of Directors):
(1) if (x) there has been a breach by the other party of any representation or
warranty or knowing failure to perform by the other party of any covenant or
agreement made by such party in this Agreement, which breach or knowing failure to
perform (A) in the case of the Company, shall result in any condition or requirement
set forth in paragraphs 2(iii)(b), (c) or (d) of Annex I not being satisfied, and
(B) in the case of Parent or Purchaser, shall have prevented or materially impaired
Parent’s or Purchaser’s ability to consummate the Offer or the Merger or is
reasonably likely to prevent or materially impair Parent’s or Purchaser’s ability to
consummate the Offer or the Merger, and (y) such breach or knowing failure to
perform is not curable, or if curable has not been cured within the earlier of
(I) the Initial Outside Date or Extended Outside Date (if applicable) and (II) 30
days following receipt of notice of any such breach or failure to perform by the
breaching party; provided, however, that the right to terminate this
Agreement pursuant to this Section 8.1(a)(i)(1) shall not be available to any party
that has breached its obligations under this Agreement in any manner that shall have
substantially contributed to the occurrence of the event which gave rise to the
termination right under this Section 8.1(a)(i)(1); or
(2) (x) at any time after the Initial Outside Date or the Extended Outside Date
(as applicable), if Purchaser shall not have accepted for payment and paid for all
Shares validly tendered (and not withdrawn) pursuant to
- 58 -
the Offer in accordance with the terms thereof on or before the Initial Outside
Date or the Extended Outside Date (as applicable); provided,
however, that the right to terminate this Agreement pursuant to this Section
8.1(a)(i)(2)(x) shall not be available to any party hereto whose breach of any
representation or warranty or knowing failure to perform any covenant or agreement
set forth in this Agreement has been the cause of, or resulted in, Purchaser’s
failure to accept for payment and pay for all Shares validly tendered (and not
withdrawn) pursuant to the Offer prior to the Initial Outside Date or the Extended
Outside Date (as applicable), or (y) if the Offer shall have been withdrawn or
terminated, in any such case in compliance with the terms and conditions of this
Agreement, or shall have expired in accordance with its terms and the terms of this
Agreement without Purchaser having purchased any Shares validly tendered (and not
withdrawn) pursuant to the Offer; provided, however, that the right
to terminate this Agreement pursuant to this Section 8.1(a)(i)(2)(y) shall not be
available to any party hereto whose breach of any representation or warranty or
knowing failure to perform any covenant or agreement set forth in this Agreement has
been the cause of, or resulted in, the Offer having been withdrawn or terminated or
having expired;
(ii) by Parent, if (1) the Company Board of Directors or any committee thereof shall
have effected a Company Change in Recommendation (whether or not in compliance with
Section 5.4) (including in the event that the Company’s “stop-look-and-listen communication”
or other disclosure shall be deemed to be a Company Change in Recommendation pursuant to the
terms of Section 5.3(d)), (2) the Company Board of Directors or any committee thereof shall
have recommended any Acquisition Proposal (whether or not a Superior Proposal), (3) the
Company shall have entered into any agreement with a Person (other than a confidentiality
agreement as contemplated by Section 5.3(b) and other than an agreement with any of the
Company’s Representatives in their capacity as such) with respect to any Acquisition
Proposal, (4) the Company shall have failed to include the Company Recommendation in the
Schedule 14D-9 or to permit Parent and Purchaser to include the Company Recommendation in
the Offer Documents, (5) the Company shall have materially breached its obligations under
Section 5.3 or Section 5.4, or (6) (A) there shall have occurred any Effect which,
individually or in the aggregate, has had and continues to have a Company Material Adverse
Effect, (B) Parent shall have delivered to the Company a written notice of such Company
Material Adverse Effect, and (C) either (x) such Company Material Adverse Effect is not
reasonably likely to be cured prior to the Initial Outside Date or Extended Outside Date (as
applicable) or (y) the Company is not using its reasonable best efforts to cure such Company
Material Adverse Effect prior to the Initial Outside Date or the Extended Outside Date (as
applicable); or
(iii) by the Company, if the Company Board of Directors authorizes the Company, subject
to compliance with the terms of this Agreement, to enter into a definitive agreement with
respect to a Superior Proposal; provided, however, that (1) the Company has
not materially breached or materially violated any terms of Section 5.3 or Section 5.4, (2)
Parent shall have received a Notice of Recommendation Change from the Company at least three
business days prior to the Company Board of Directors or any
- 59 -
committees thereof effecting a Company Change in Recommendation and/or terminating this
Agreement, (3) prior to the expiration of such three business day period, Parent has not
made a binding written offer that the Company Board of Directors determines in good faith,
after consultation with its financial advisor and outside counsel, is at least as favorable
to the Company’s shareholders as such Superior Proposal, (4) immediately following the
termination of this Agreement, the Company enters into a definitive agreement to effect such
Superior Proposal, and (5) on or before the close of business on the business day
immediately following the day on which the Company enters into a definitive agreement to
effect such Superior Proposal, the Company pays Parent the Termination Fee.
(b) This Agreement may be terminated and the Transactions may be abandoned at any time before
the Effective Time, whether before or after shareholder approval thereof:
(i) by either Parent or the Company, if any final, non-appealable Order permanently
restraining, enjoining or otherwise prohibiting the Offer, the Merger or the other
Transactions exists; or
(ii) by mutual written consent of Parent and the Company duly authorized by the Company
Board of Directors and the Board of Directors of Parent; provided, however,
that any such authorization of termination by the Company Board of Directors shall have
occurred prior to the Acceptance Time.
Section 8.2. Effect of Termination.
(a) In the event of the termination of this Agreement as provided in Section 8.1, written
notice thereof shall forthwith be given to the other party or parties hereto specifying the
provision hereof pursuant to which such termination is made, and this Agreement shall forthwith
become null and void and there shall be no liability or obligation on the part of Parent, Purchaser
or the Company (or any of their respective Representatives or affiliates), except (i) in respect of
the provisions of Section 6.4, this Section 8.2 and Article IX, which provisions shall survive and
remain in full force and effect, and (ii) no such termination shall relieve any party hereto from
liability for intentional fraud or any knowing and intentional material breach of any of its
representations, warranties, covenants and agreements set forth in this Agreement.
(b) (i) If Parent terminates this Agreement pursuant to Section 8.1(a)(ii) (other than
pursuant to Section 8.1(a)(ii)(5) or Section 8.1(a)(ii)(6)), then the Company shall pay to
Parent promptly, but in no event later than two business days after the date of such
termination, a termination fee of $129,000,000 in cash (the “Termination Fee”).
(ii) If the Company terminates this Agreement pursuant to Section 8.1(a)(iii), then the
Company shall pay to Parent the Termination Fee at or before the close of business on the
business day immediately following the day on which the Company enters into a definitive
agreement to effect the Superior Proposal.
- 60 -
(iii) If (A) Parent or the Company shall have terminated this Agreement pursuant to
Section 8.1(a)(i)(2) as a result of the failure to satisfy the Minimum Condition,
(B) following the execution and delivery of this Agreement and prior to the termination of
this Agreement, an Acquisition Proposal shall have been made with respect to the Company or
any Person shall have publicly announced an intention (whether or not conditional) to make
an Acquisition Proposal with respect to the Company and the Acquisition Proposal shall not
have been withdrawn prior to the termination of this Agreement, and (C) (1) concurrently
with, or within 12 months following, such termination, the Company enters into an agreement
the consummation of which would result in a Third Party Acquisition Event and such Third
Party Acquisition Event occurs within 24 months following such termination, or (2) within 12
months following such termination, a Third Party shall consummate a transaction or
transactions in which it directly or indirectly acquires a majority of the outstanding
Shares, then contingent upon the consummation of the Third Party Acquisition Event, within
two business days of the consummation of the Third Party Acquisition Event the Company shall
pay to Parent the Termination Fee. For purposes of this Section 8.2(b)(iii), each reference
to 20% in the definition of “Acquisition Proposal” shall be deemed to be a reference to 50%.
(iv) If (A) Parent shall have terminated this Agreement pursuant to Section
8.1(a)(ii)(5) and the Company’s breach was knowing and intentional, and (B) (1) concurrently
with, or within 12 months following, such termination, the Company enters into an agreement
the consummation of which would result in a Third Party Acquisition Event and such Third
Party Acquisition Event occurs within 24 months following such termination, or (2) within 12
months following such termination, a Third Party shall consummate a transaction or
transactions in which it directly or indirectly acquires a majority of the outstanding
Shares, then contingent upon the consummation of the Third Party Acquisition Event, within
two business days of the consummation of the Third Party Acquisition Event the Company shall
pay to Parent the Termination Fee. For purposes of this Section 8.2(b)(iv), each reference
to 20% in the definition of “Acquisition Proposal” shall be deemed to be a reference to 50%.
(c) To the extent payable pursuant to Section 8.2(b), the Termination Fee shall be paid by
wire transfer of immediately available funds to an account designated in writing by Parent.
Notwithstanding any other provision of this Agreement, in no event shall the Company be obligated
to pay the Termination Fee on more than one occasion. Except to the extent required by applicable
law, the Company shall not withhold any Taxes on any payment under this Section 8.2.
(d) The Company acknowledges and agrees that the agreements contained in Section 8.2(b) are an
integral part of the Transactions, and that, without these agreements, Parent and Purchaser would
not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due
pursuant to Section 8.2(b), and, in order to obtain such payment, Parent or Purchaser commences a
suit that results in a judgment against the Company for the fee set forth in Section 8.2(b) or any
portion of such fee, the Company shall pay to Parent and Purchaser its costs and expenses
(including attorneys’ fees) in connection with such suit, together with interest on the amount of
the Termination Fee at the prime rate of Citibank, N.A. in effect
- 61 -
on the date such payment was required to be made through the date of payment. Each of Parent
and Purchaser acknowledges and agrees that in the event the Termination Fee becomes payable and is
paid by the Company and accepted by Parent pursuant to this Agreement, the Termination Fee shall
constitute each of the Parent’s and Purchaser’s sole and exclusive monetary remedy, as damages or
otherwise, under this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Amendment and Modification; Waiver.
(a) This Agreement may be amended or modified by the parties hereto at any time prior to the
Effective Time; provided, however, that after the approval and adoption of this
Agreement by the shareholders of the Company, if required by applicable law, no amendment shall be
made which by law requires further approval by such shareholders without obtaining such further
approval. This Agreement may not be amended or modified except by an instrument in writing
executed and delivered on behalf of each of the parties hereto; and provided,
further, that from and after the Acceptance Time, Section 6.5(g) may not be amended in
respect of its application to a Covered Person without the consent of that Covered Person.
(b) At any time and from time to time prior to the Effective Time, any party or parties hereto
may, to the extent legally allowed and except as otherwise set forth in this Agreement, (i) extend
the time for the performance of any of the obligations or other acts of the other party or parties
hereto, as applicable, (ii) waive any inaccuracies in the representations and warranties made to
such party or parties hereto contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any of the agreements or conditions for the benefit of such party or
parties hereto contained herein. Any agreement on the part of a party or parties hereto to any
such extension or waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party or parties, as applicable. Any delay in exercising any right under this
Agreement shall not constitute a waiver of such right.
Section 9.2. No Survival of Representations and Warranties. None of the representations and
warranties in this Agreement or in any instrument or other document delivered pursuant to this
Agreement shall survive the Effective Time. This Section 9.2 shall not limit any covenant or
agreement of any of the parties hereto that by its terms contemplates performance after the
Effective Time.
Section 9.3. Expenses. Except as expressly set forth in Section 8.2(b), all fees, costs and
expenses incurred in connection with this Agreement, the Offer, the Merger and the other
Transactions shall be paid by the party incurring such fees, costs and expenses.
Section 9.4. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally (notice deemed given upon receipt), telecopied
(notice deemed given upon confirmation of receipt) or sent by a nationally recognized overnight
courier service, such as Federal Express or UPS (notice deemed given upon receipt of proof of
delivery), to the parties hereto at the following addresses (or at such other address for a party
hereto as shall be specified by like notice):
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|
(a) |
|
if to Parent or Purchaser, to: |
|
|
|
|
Eisai Co., Ltd.
0-0-00 Xxxxxxxxxx, Xxxxxx-xx
Xxxxx 000-0000
Xxxxx
Telephone: x00-0-0000-0000
Fax: x00-0-0000-0000
Attention: Xxxxx Xxxxxxxxx |
|
|
|
|
and |
|
|
|
|
Eisai Corporation of North America
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxx Xxxxxx |
|
|
|
|
with a copy (which shall not constitute notice) to: |
|
|
|
|
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxxxx |
|
|
|
|
and |
|
|
(b) |
|
if to the Company, to: |
|
|
|
|
MGI PHARMA, INC.
0000 Xxxx Xxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxxxx, Xx. |
- 63 -
|
|
|
with copies (which shall not constitute notice) to: |
|
|
|
|
Xxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx |
Section 9.5. Certain Definitions. For the purposes of this Agreement, the term:
“6 Month USD LIBOR Rate” means the rate for deposits in U.S. dollars for a period of
six months which appears on the Moneyline Telerate page 3750 as of 11:00 a.m., London time, on the
date that is six months after the Top-Up Closing. If such rate does not appear on the Moneyline
Telerate page 3750 on such date, the 6 Month USD LIBOR Rate for such day will equal the 6 Month USD
LIBOR Rate for the immediately preceding day.
“Acquisition Proposal” means any offer, proposal, inquiry or indication of interest,
whether or not in writing, as the case may be, by any Person in respect of an Acquisition
Transaction.
“Acquisition Transaction” means any transaction or series of transactions involving
(i) any merger, joint venture, partnership, consolidation, statutory share exchange,
reorganization, recapitalization, liquidation, dissolution, other direct or indirect business
combination or similar transactions involving the Company or any of the Company Subsidiaries
pursuant to which the shareholders of the Company immediately preceding such transaction would
hold, directly or indirectly, 50% or less of the equity or voting securities of the surviving or
resulting entity following such transaction, (ii) the issuance by the Company, directly or
indirectly, or the acquisition in any manner by any Person or “group” (as defined under
Section 13(d) of the Exchange Act), directly or indirectly, of shares of any class of capital stock
or other equity securities of the Company or any of the Company Subsidiaries representing 20% or
more (by ownership or voting power) of the outstanding shares of any class of capital stock or
other equity interest of the Company or any of the Company
Subsidiaries, (iii) any tender or exchange offer that if
consummated would result in any Person or “group” (as defined in under
Section 13(d) of the Exchange Act) beneficially owning shares of any class of capital
stock or other equity securities of the Company or any of the Company Subsidiaries representing
20% or more (by ownership or voting power) of the outstanding shares of any class of capital stock
or other equity interest of the Company or any of the Company Subsidiaries, (iv) the acquisition or
purchase of assets that constitute 20% or more of the assets of the Company and the Company
Subsidiaries taken as a whole, other than as a result of the sale of inventory in the ordinary
course of business consistent with past practice, or (v) any combination of the foregoing;
provided, however, that the term “Acquisition Transaction” shall not
include (i) the Offer, the Merger or any other Transaction, (ii) any merger, consolidation,
business combination, reorganization, recapitalization or other transaction solely between or among
the Company and one or more Company Subsidiaries or solely between or among Company Subsidiaries,
(iii) any transaction between or among the Company and Parent or
any affiliates of Parent or (iv) any
- 64 -
transaction or series of transactions in which a joint
venture or other entity is formed and the Company or any Company Subsidiary is a party to the joint
venture or has an equity interest in the joint venture or other entity, so long as the assets
contributed to the joint venture or other entity do not constitute 20% or more of the assets of the
Company and the Company Subsidiaries taken as a whole.
“Act” means the United States Federal Food, Drug, and Cosmetic Act, as amended, and
regulations and FDA guidelines promulgated thereunder.
“Xxxx-Xxxx Act” means the Patent and Trademark Law Amendments Act, 35 U.S.C. §200 et.
seq, as may be amended or succeeded from time to time, and the regulations promulgated thereunder.
“business days” has the meaning given to it in Rule 14d-1(g)(3) promulgated under the
Exchange Act.
“Company Compensation Arrangement” means (i) any employment agreement, severance
agreement or change of control agreement between the Company or any Company Subsidiary and any of
the officers, directors or employees of the Company or any Company Subsidiary and any amendments
thereto entered into during the 12 months immediately prior to the date hereof, (ii) any Company
Stock Rights or Restricted Stock awarded to, or any acceleration of vesting of any Common Stock
Rights or Restricted Stock held by, an officer, director or employees of the Company or any Company
Subsidiary during the 12 months immediately prior to the date hereof, and (iii) any other
“employment compensation, severance or other employee benefit arrangement” within the meaning of
Rule 14(d)-10(d)(1) promulgated under the Exchange Act.
“Company Indebtedness Agreements” means each of (i) the Indenture dated as of March 2,
2004, between the Company and Xxxxx Fargo Bank, N.A., (ii) the Supplemental Indenture dated as of
October 3, 2005 between Guilford Pharmaceuticals Inc., the Company and Wachovia Bank, National
Association, (iii) the Indenture dated as of June 17, 2003 between Guilford Pharmaceuticals Inc.
and Wachovia Bank, National Association and (iv) any ancillary documents thereto.
“Company Intellectual Property” means Intellectual Property that is owned or
exclusively licensed by the Company or a Company Subsidiary and used in the Company’s (or such
Company Subsidiary’s business), as currently conducted.
“Company Material Adverse Effect” means any change, effect, event, occurrence,
development, circumstance or condition (each, an “Effect”) that, individually or when taken
together with all other Effects that exist at the date of determination, (x) has had or is
reasonably likely to have a material adverse effect on the financial condition, assets,
liabilities, business or results of operations of the Company and the Company Subsidiaries taken as
a whole or (y) has an effect that reasonably would be expected to prevent or materially impair the
ability of the Company to consummate the Offer or the Merger; provided, however,
that none of the following Effects shall be deemed to be or constitute a Company Material Adverse
Effect or shall be taken into account when determining whether a Company Material Adverse Effect
has occurred:
- 65 -
(i) conditions (or changes therein) in any industry or industries (or therapeutic area or
areas) in which the Company operates to the extent that such conditions do not have a materially
disproportionate adverse effect on the Company and the Company Subsidiaries taken as a whole
relative to other companies of comparable size to the Company operating in such industry or
industries (or therapeutic area or areas), as the case may be, (ii) general market or economic
conditions (or changes therein) or conditions (or changes therein) in the capital or financial
markets (including changes in interest rates or exchange rates) in the United States or in Japan,
(iii) any change in law not specifically directed at, and to the extent not having a materially
disproportionate adverse effect on, the Company and the Company Subsidiaries taken as a whole or
changes in GAAP, or any changes in the interpretation of any of the foregoing, (iv) any change in
general legal, tax, regulatory, political or business conditions in the United States or in any
country in which the Company or any of the Company Subsidiaries conducts business, (v) any acts of
sabotage, terrorism or war or the commencement of armed hostilities, or the escalation of any of
the foregoing, in each case to the extent not having a materially disproportionate adverse effect
on the Company and the Company Subsidiaries taken as a whole, (vi) weather or natural disasters, in
each case to the extent not having a materially disproportionate adverse effect on the Company and
the Company Subsidiaries taken as a whole (vii) the announcement of the execution of this
Agreement, (viii) compliance with the terms of, or the taking of any action required by, this
Agreement, or the failure to take any action prohibited by this Agreement, (ix) any actions taken,
or failure to take action, to which Parent or Purchaser has expressly consented or requested in
writing, (x) changes in the Company’s stock price or the trading volume of the Company’s stock on
NASDAQ (it being understood that the facts or occurrences giving rise or contributing to such
changes that are not otherwise excluded from the definition of a “Company Material Adverse Effect”
may be taken into account), (xi) any failure by the Company to meet any published analyst estimates
or expectations of the Company’s revenue, earnings or other financial performance measures for any
period ending on or after the date of this Agreement (it being understood that the facts or
occurrences giving rise or contributing to such failure that are not otherwise excluded from the
definition of a “Company Material Adverse Effect” may be taken into account), (xii) determinations
or actions by the FDA or any other Governmental Entity in the United States or any jurisdiction
outside the United States, or any advisory or other panel or body empowered or appointed by or
under the authority of the foregoing, in respect of any product or product candidates of any Person
other than the Company or any Company Subsidiary, (xiii) the results of any pre-clinical or
clinical trial being conducted by or on behalf of any Person other than the Company or any Company
Subsidiary, or the publication or release of any pre-clinical or clinical data or results by any
Person other than the Company or any Company Subsidiary, or any adverse events or serious adverse
events involving products or product candidates of a Person other than the Company or any Company
Subsidiary, or (xiv) the submission by a Person other than the Company or any Company Subsidiary of
a New Drug Application, supplemental New Drug Application or abbreviated New Drug Application.
“Company Notes” means any convertible notes issued pursuant to the Company
Indebtedness Agreements.
“Company Products” means products distributed and services performed by Company and
products under development by the Company that are the subject of INDs or unapproved NDAs.
- 66 -
“Company Property” means any real property, plant, building or facility and
improvements, whether now, previously or heretofore, owned, leased or operated by the Company or
its predecessors.
“Company Stock Plans” means collectively each stock option or other equity incentive
plan maintained or assumed by the Company.
“Confidentiality Agreement” means the confidentiality letter agreement dated
September 27, 2007, between Parent and the Company.
“Copyrights” means (i) all copyrights (including copyrights in any package inserts,
marketing or promotional materials, labeling information or other text provided to consumers),
whether registered or unregistered throughout the world; (ii) any registrations and applications
therefor; (iii) all rights and priorities afforded under any international treaty, convention, or
the like; (iv) all extensions and renewals of any thereof; (v) the right to xxx for past, present
and future infringements of any of the foregoing, and all proceeds of the foregoing, including
licenses, royalties, income, payments, claims, damages (including attorneys’ fees), and proceeds of
suit; and (vi) any rights similar to the foregoing in any country, including moral rights.
“Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, Liens, notices of noncompliance or violation,
investigations or proceedings under any Environmental Law or any permit issued under any such
Environmental Law, including (i) any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, Liens, notices of noncompliance or violation, investigations or
proceedings by Governmental Entities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law and (ii) any and all
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, Liens,
notices of noncompliance or violation, investigations or proceedings by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising from alleged injury to the environment or as a result of
exposure to Hazardous Materials.
“Environmental Law” means any federal, state, local and foreign statute, law
(including common law), code, rule, regulation, ordinance or similar provision having the force or
effect of law, as well as any judicial and administrative order, directive, permit or
determination, relating to human health and safety or pollution or protection or restoration of the
environment (including natural resources), noise or radiation, including any relating to the
presence, use, production, generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, Release, threatened Release, control,
removal, remediation or cleanup of any Hazardous Material.
“ERISA Affiliate” means any trade or business, whether or not incorporated, that
together with the Company would be deemed a single employer for purposes of Section 4001 of ERISA
or Sections 414(b), (c), (m), (n) or (o) of the Code.
- 67 -
“Guilford Convertible Notes” means any notes issued pursuant to the Indenture dated as
of June 17, 2003, between Guilford Pharmaceuticals Inc. and Wachovia Bank, National Association.
“Hazardous Materials” means any and all materials (including substances, chemicals,
compounds, mixtures, products or byproducts, wastes, pollutants, biologic agents or vectors, living
or genetically modified materials, culture, serum and contaminants), whether alone or in
combination and whether solid, liquid or gaseous (i) that are listed, licensed, prohibited,
controlled or regulated pursuant to any Environmental Laws; (ii) that are identified or classified
as “hazardous,” “toxic,” “dangerous,” “pollutant,” “contaminant,” “explosive,” “corrosive,”
“flammable,” “radioactive,” “reactive” or “special waste”; (iii) that are capable of causing harm
or injury to human health, natural resources or the environment; (iv) the presence, existence or
threat of which may form the basis for or give rise to liability under any Environmental Laws,
including any obligation to take remedial action; or (v) that are oils, petroleum, petroleum
products, wastes or byproducts, asbestos or asbestos containing materials, lead-based paint,
polychlorinated biphenyls, pesticides, urea formaldehyde, explosives, bacteria or fungi.
“IND” means Investigational New Drug exemption requesting permission to conduct
clinical trials with respect to a drug product in accordance with the Act, together with all
supplements or amendments filed with respect thereto pursuant to the requirements of the Act,
including all documents, data and other information concerning the product which are reasonably
necessary to perform such clinical trials.
“Intellectual Property” means intellectual property rights, including Trademarks,
Internet Property, Copyrights and Patents, whether registered or unregistered, and all applications
and registrations therefor, Know-How, confidential information, trade secrets, and similar
proprietary rights in confidential inventions, discoveries, analytic models, improvements,
processes, techniques, devices, methods, patterns, formulations and specifications.
“Internet Property” means (i) all websites and rights thereto, (ii) all news,
information, illustrations, graphs, charts, artwork, photos, data, audio, video, text or other
content or combinations thereof, in any form or media, used in websites related to the Company
Products, and (iii) all URLs, internet protocol addresses and corresponding domain names, including
all registrations and applications relating thereto.
“Know-How” means any proprietary or nonproprietary information related to the
manufacture, preparation, development (including research, pre-clinical and clinical), or
commercialization of a product, including data, product specifications, processes, product designs,
plans, trade secrets, ideas, concepts, inventions, formulae, chemical, pharmacological,
toxicological, pharmaceutical, physical, analytical, stability, safety, quality assurance, quality
control and clinical information, technical information, research information, and all other
confidential or proprietary technical and business information, whether or not embodied in any
documentation or other tangible materials, including any trade secret or other rights therein.
“knowledge” means, in the case of Parent or Purchaser, the actual knowledge of any
executive officer or director of Parent or Purchaser, as the case may be, and, in the case of
- 68 -
the Company, the actual knowledge of any officer or director of the Company, including the
President and Chief Executive Officer, the Executive Vice President and Chief Operating Officer,
the Executive Vice President and Chief Scientific Officer, the Executive Vice President and Chief
Financial Officer, the Senior Vice President and Controller, the Vice President, Finance and
Administration, the Vice President, Legal, and, only for the purposes of Section 3.14 of the
Agreement, the Senior Director, Intellectual Property .
“Lien” means any lien, pledge, hypothecation, mortgage, security interest,
encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right,
community property interest or restriction of any nature (including any restriction on the voting
of any security, any restriction on the transfer of any security or other asset, any restriction on
the possession, exercise or transfer of any other attribute of ownership of any asset).
“MGI Convertible Notes” means any notes issued pursuant to the Indenture dated as of
March 2, 2004, between the Company and Xxxxx Fargo Bank, National Association.
“NDA” means a New Drug Application for any product requesting permission to place the
product on the market in accordance with the Act, together with all supplements or amendments filed
with respect thereto pursuant to the requirements of the Act, including all documents, data and
other information concerning the product which are reasonably necessary for the FDA approval to
market the product in the United States.
“Orange Book” means the FDA publication titled “Approved Drug Products with
Therapeutic Equivalence Evaluations” and commonly known at the Effective Time as the “Orange Book.”
“Patents” means: (i) all national, regional and international patents and patent
applications, including provisional patent applications; (ii) all patent applications filed either
from such patents, patent applications or provisional applications or from an application claiming
priority from either of these, including divisionals, continuations, continuations-in-part,
substitutions, provisionals, converted provisionals, and continued prosecution applications; (iii)
any and all patents that have issued or in the future issue from the foregoing patent applications
described in clauses (i) and (ii), including utility models, xxxxx patents and design patents and
certificates of invention; (iv) any and all extensions or restorations by existing or future
extension or restoration mechanisms, including revalidations, reissues, re-examinations and
extensions (including any supplementary protection certificates and the like) of the foregoing
patents or patent applications described in clauses (i), (ii) and (iii); (v) any and all licenses,
royalties, income, payments, causes of action, claims, demands or other rights occasioned from or
because of any and all past, present and future infringement of any of the foregoing, including all
rights to recover damages (including attorneys’ fees), proceeds of suit, profits and injunctive or
other relief for such infringement; and (vi) any similar rights, including so-called pipeline
protection, or any importation, revalidation, confirmation or introduction patent or registration
patent or patent of additions to any such foregoing patent applications and patents.
“Person” means a natural person, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Entity or other entity or organization.
- 69 -
“Release” means any accidental or intentional spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping, or other
disposing of any Hazardous Material into the environment.
“Restricted Stock” means each Share subject to restrictions and forfeiture granted
pursuant to the Company Stock Plans.
“RSU” means a restricted stock unit granted pursuant to the Company Stock Plans.
“Significant Jurisdiction” means the United States, Canada and Japan.
“Subsidiary” means with respect to any Person, any corporation, limited liability
company, partnership or other organization, whether incorporated or unincorporated, of which (i) at
least a majority of the outstanding shares of capital stock of, or other equity interests, having
by their terms ordinary voting power to elect a majority of the board of directors or others
performing similar functions with respect to such corporation or other organization is directly or
indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, and (ii) such Person or any other Subsidiary of such
Person is a general partner (excluding any such partnership where such Person or any Subsidiary of
such Person does not have a majority of the voting interest in such partnership), it being
understood and agreed that AkaRx, Inc. is not a Company Subsidiary.
“Superior Proposal” means a bona fide written Acquisition Proposal received by the
Company after the date hereof and not in breach of this Agreement that the Company Board of
Directors determines in its good faith judgment (taking into account the information that the Board
of Directors determines is relevant to its decision, including the likelihood that the Acquisition
Proposal will be consummated) to be more favorable to the holders of Shares (in their capacity as
such) than the Transactions, including the Offer and the Merger.
“Tax” or “Taxes” means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental, customs duties, capital stock, franchise, profits, withholding, social
security, unemployment, disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.
“Tax Return” means any return, report, certificate, form or similar statement or
document or other communication required or permitted to be supplied to, or filed with, a
Governmental Entity in connection with the determination, assessment or collection of any Tax or
the administration of any laws relating to any Tax.
“Third Party Acquisition Event” means the consummation of, an Acquisition Transaction
or series of related Acquisition Transactions; provided, that the consummation of such
Acquisition Transaction or Acquisition Transactions results in the acquisition by any Third Party
of (i) a majority of the outstanding Shares or (ii) a majority of the assets (including the capital
stock or assets of any Company Subsidiary) of the Company and the Company Subsidiaries taken as a
whole.
- 70 -
“Trademark” means: (i) all trademarks, trade names, trade dress, service marks,
logos, trade styles, certification marks, collective marks, designs, industrial designs and other
identifiers of source and all other general intangibles of a like nature, whether registered or
unregistered; (ii) all registrations and applications for any of the foregoing; (iii) all
extensions or renewals of any of the foregoing; (iv) all of the goodwill connected with the use of
and symbolized by the foregoing; (v) all rights and priorities afforded under the United States
“common law,” under the “common law” of any other country or jurisdiction, or under any
international treaty, convention, or the like; (vi) the right to xxx for past, present and future
infringement, misappropriation or dilution of any of the foregoing or for any injury to goodwill;
(vii) all proceeds of the foregoing, including licenses, royalties, income, payments, claims,
damages (including attorneys’ fees) and proceeds of suit; and (viii) any rights similar to the
foregoing in any country.
“Trade Secrets” means trade secrets (including those trade secrets defined in the
Uniform Trade Secrets Act and under corresponding foreign statutory and common law), business,
technical and know-how information, non-public information, and confidential information and rights
to limit the use or disclosure thereof by any Person, including databases and collections and all
rights therein.
“Warrant” means a warrant to purchase Shares.
“Warrant Consideration” means the per Share exercise price of a Warrant.
Section 9.6. Terms Defined Elsewhere. The following terms are defined elsewhere in this
Agreement, as indicated below:
|
|
|
“401(k) Plan”
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|
Section 6.9 |
“Acceptance Time”
|
|
Section 1.3(a) |
“Agreement”
|
|
Preamble |
“Appraisal Rights”
|
|
Section 2.3(a) |
“Articles of Merger”
|
|
Section 1.6 |
“Base Premium”
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Section 6.5(e) |
“beneficial ownership”
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|
Section 1.3(a) |
“Benefit Plan Participants”
|
|
Section 6.8(a) |
“Benefit Plans”
|
|
Section 3.10(a) |
“Certificates”
|
|
Section 2.2(b) |
“Closing”
|
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Section 1.7 |
“Closing Date”
|
|
Section 1.7 |
“Code”
|
|
Section 2.2(e) |
“Common Stock”
|
|
Recitals |
“Company”
|
|
Preamble |
“Company Agreements”
|
|
Section 3.5(a)(iii) |
“Company Board of Directors”
|
|
Recitals |
“Company Bylaws”
|
|
Section 1.3(b) |
“Company Change in Recommendation”
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Section 5.4(b) |
“Company Charter”
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Section 1.3(b) |
“Company Disclosure Schedule”
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Article III |
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|
|
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“Company Financial Advisor”
|
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Section 3.18 |
“Company Governing Documents”
|
|
Section 1.3(b) |
“Company Material Businesses”
|
|
Section 6.3(f) |
“Company Material Contract”
|
|
Section 3.12(a) |
“Company Option”
|
|
Section 2.4(a) |
“Company Permits”
|
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Section 3.15(a) |
“Company Recommendation”
|
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Section 5.4(a) |
“Company SEC Documents”
|
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Section 3.6(a) |
“Company Stock Rights”
|
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Section 3.2(c) |
“Company Subsidiaries”
|
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Section 3.1(b) |
“Company Tandem Option-SAR”
|
|
Section 2.4(b) |
“Compensation Committee”
|
|
Section 3.10(k) |
“Continuing Directors”
|
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Section 1.3(b) |
“Covered Persons”
|
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Section 6.5(a) |
“CSA”
|
|
Section 3.23(a) |
“D&O Insurance”
|
|
Section 6.5(e) |
“Dissenting Shares”
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Section 2.3(a) |
“Effect”
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Section 9.5 |
“Effective Time”
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Section 1.6 |
“Eisai US”
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Section 4.2 |
“Employment Compensation Arrangement”
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Section 3.10(k) |
“Equity Interests”
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Section 3.2(e)(iii) |
“Exchange Act”
|
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Section 1.1(a) |
“Expiration Date”
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Section 1.1(d) |
“Extended Outside Date”
|
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Section 1.1(e)(i) |
“FDA”
|
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Section 3.23(b) |
“FDCA”
|
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Section 3.23(a) |
“Financial Statements”
|
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Section 3.6(a) |
“Financing”
|
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Section 6.13 |
“Financing Commitment”
|
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Section 6.13 |
“Foreign Plans”
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Section 3.10(a) |
“GAAP”
|
|
Section 3.6(a) |
“Governmental Approval Condition”
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|
Annex I |
“Governmental Entity”
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Section 3.5(a)(ii) |
“HSR Act”
|
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Section 3.5(a)(ii) |
“HSR Condition”
|
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Annex I |
“Initial Expiration Date”
|
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Section 1.1(d) |
“Initial Outside Date”
|
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Section 1.1(e)(i) |
“law”
|
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Section 3.15(b) |
“Leased Real Property”
|
|
Section 3.13(b) |
“Legal Proceeding”
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Section 3.9 |
“Licenses In”
|
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Section 3.14(a) |
“Licenses Out”
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Section 3.14(a) |
“MBCA”
|
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Recitals |
“Merger”
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|
Recitals |
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|
Annex I |
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“Merger Consideration”
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Section 2.1(c) |
“Minimum Condition”
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Annex I |
“NASDAQ”
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Section 1.3(a) |
“Note”
|
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Section 1.4(c) |
“Notice of Recommendation Change”
|
|
Section 5.4(c)(i) |
“Offer”
|
|
Recitals |
“Offer Conditions”
|
|
Section 1.1(b) |
“Offer Documents”
|
|
Section 1.1(i) |
“Offer Price”
|
|
Recitals |
“Offer to Purchase”
|
|
Section 1.1(c) |
“Order”
|
|
Section 7.1(b) |
“Parent”
|
|
Preamble |
“Parent Material Businesses”
|
|
Section 6.3(f) |
“Paying Agent”
|
|
Section 2.2(a) |
“Payment Fund”
|
|
Section 2.2(a) |
“Permitted Liens”
|
|
Section 3.13(a) |
“PHSA”
|
|
Section 3.23(a) |
“Preferred Stock”
|
|
Section 3.2(a) |
“Proxy Statement”
|
|
Section 1.10(a) |
“Purchaser”
|
|
Preamble |
“Purchaser Common Stock”
|
|
Section 2.1 |
“Regulation M-A”
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|
Section 1.1(i) |
“Representatives”
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Section 5.3(a) |
“Required Approvals”
|
|
Annex I |
“Rights”
|
|
Recitals |
“Rights Agreement”
|
|
Recitals |
“Xxxxxxxx-Xxxxx Act”
|
|
Section 3.6(a) |
“Schedule 14D-9”
|
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Section 1.2(a) |
“Schedule TO”
|
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Section 1.1(i) |
“SEC”
|
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Section 1.1(e)(iii) |
“Securities Act”
|
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Section 3.6(a) |
“Shares”
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|
Recitals |
“Short Form Merger”
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Section 1.4(a) |
“Short Form Threshold”
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Section 1.11 |
“Special Meeting”
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Section 1.10(b)(i) |
“Surviving Corporation”
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Section 1.5(a) |
“Termination Fee”
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Section 8.2(b)(i) |
“Third Party”
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Section 5.3(a) |
“Top-Up Closing”
|
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Section 1.4(c) |
“Top-Up Option”
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Section 1.4(a) |
“Top-Up Option Shares”
|
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Section 1.4(a) |
“Transactions”
|
|
Recitals |
“Voting Debt”
|
|
Section 3.2(e)(iv) |
Section 9.7. Interpretation. When a reference is made in this Agreement to Sections, Articles
or Exhibits, such reference shall be to a Section or an Article of, or an Exhibit to, this
- 73 -
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.”
As used in this Agreement, the term “affiliates” shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act. The table of contents and headings set forth in this Agreement
are for convenience of reference only and shall not affect or be deemed to affect in any way the
meaning or interpretation of this Agreement or any term or provision hereof. Unless otherwise
indicated, all references in this Agreement to the Subsidiaries of a Person shall be deemed to
include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the
context otherwise requires. The parties hereto agree that they have been represented by counsel
during the negotiation and execution of this Agreement and, therefore, waive the application of any
applicable law, regulation, holding or rule of construction providing that ambiguities in an
agreement, document or provision will be construed against the party drafting such agreement,
document or provision.
Section 9.8. Counterparts. This Agreement may be executed manually or by facsimile by the
parties hereto, in any number of counterparts, each of which shall be considered one and the same
agreement and shall become effective when a counterpart hereof shall have been signed by each of
the parties hereto and delivered to the other parties hereto.
Section 9.9. Entire Agreement; No Third-Party Beneficiaries. This Agreement (a) constitutes
the entire agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral, among the parties
hereto or any of them with respect to the subject matter hereof, and (b) except as provided in
Section 6.5, is not intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
Section 9.10. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by rule of law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the Offer or the Merger is not affected in any manner adverse to any
party hereto. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties hereto as closely as possible in an
acceptable manner to the end that the Offer and the Merger are fulfilled to the extent possible.
Section 9.11. Governing Law; Jurisdiction.
(a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of
New York (except to the extent that the MBCA is mandatorily applicable) without giving
effect to conflicts of laws principles that would result in the application of the law of any other
state.
(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of the appropriate Federal court of the United States
of America located in the Southern District of
New York, or, if such Federal court does not have
proper jurisdiction, the state courts of the State of
New York located in the borough of Manhattan,
and any appellate court thereof, in any action or proceeding arising out of
- 74 -
or relating to this Agreement or the agreements delivered in connection herewith or the
transactions contemplated hereby or thereby or for recognition or enforcement of any judgment
relating thereto, and each of the parties hereto hereby irrevocably and unconditionally (i) agrees
not to commence any such action or proceeding except in such courts, (ii) agrees that any claim in
respect of any such action or proceeding may be heard and determined in such Federal court or, if
such Federal court does not have proper jurisdiction, in such
New York courts, (iii) waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such action or proceeding in any such Federal court or
New York
court, and (iv) waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such Federal court or
New York court.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each party to this Agreement irrevocably consents to service of process in
the manner provided for notices in Section 9.4. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by law. Each party
hereto agrees not to commence any legal proceedings relating to or arising out of this Agreement or
the Transactions in any jurisdiction or courts other than as provided in this Agreement.
Section 9.12. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION
HEREWITH OR THE OFFER OR THE MERGER CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO CERTIFIES
AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
Section 9.13. Assignment. This Agreement shall not be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of the other parties
hereto, except that (a) Purchaser may assign, in its sole discretion and without the consent of any
other party hereto, any or all of its rights, interests and obligations hereunder to (i) Parent,
(ii) Parent and one or more direct or indirect wholly-owned Subsidiaries of Parent or (iii) one or
more direct or indirect wholly-owned Subsidiaries of Parent and (b) from and after the Acceptance
Time, Parent and Purchaser may collaterally assign its rights hereunder as security in connection
with any financing. Subject to the preceding sentence, but without relieving any party hereto of
any obligation hereunder, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
Section 9.14. Enforcement; Specific Performance; Remedies. Subject to Section 8.2(b), the
parties hereto agree that irreparable damage would occur in the event that any of the
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provisions of this Agreement were not performed in accordance with their specific terms. It
is accordingly agreed that the parties hereto shall be entitled to seek an injunction or
injunctions to prevent breaches of this Agreement and to specifically enforce the terms hereof,
this being in addition to any other remedy to which they are entitled at law or in equity. Except
as otherwise provided in this Agreement, any and all remedies herein expressly conferred upon a
party hereto will be deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party hereto of any one remedy will not
preclude the exercise of any other remedy.
Section 9.15. Performance Guaranty. Parent hereby guarantees the due, prompt and faithful
performance and discharge by Purchaser of, and the compliance by Purchaser with, all of the
covenants, agreements, obligations and undertakings of Purchaser under this Agreement in accordance
with the terms of this Agreement, and covenants and agrees to take all actions necessary or
advisable to ensure such performance and discharge by Purchaser hereunder.
[Signature Page Follows]
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IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed
by their respective officers thereunto duly authorized as of the date first written above.
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EISAI CO., LTD. |
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/s/ Makoto Shiina
Makoto Shiina
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Executive Vice President, |
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Corporate Strategy |
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JAGUAR ACQUISITION CORP. |
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Xxxxxx Xxxxxxx
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Title:
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Chief Executive Officer |
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MGI PHARMA, INC. |
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/s/ Xxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxxx, Xx.
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President and Chief Executive Officer |
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Signature Page to Agreement and Plan of Merger
ANNEX I
Conditions of the Offer
(1) Notwithstanding any other terms or provisions of the Offer, Purchaser shall not be
obligated to accept for payment, and, subject to the rules and regulations of the SEC (including
Rule 14e-1(c) promulgated under the Exchange Act), shall not be obligated to pay for, or may delay
the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer
(and not theretofore accepted for payment or paid for), unless as of any scheduled Expiration Date,
the number of Shares validly tendered pursuant to the Offer (and not withdrawn prior to any then
scheduled Expiration Date), together with the Shares then beneficially owned by Parent or Purchaser
(if any), represents at least a majority of:
(i) all Shares then outstanding, plus
(ii) all Shares issuable upon the exercise, conversion or exchange of any Company
Options, Company Tandem Option-SARs, RSUs, Warrants, or other rights to acquire Shares then
outstanding that are vested and exercisable, convertible and exchangeable as of any then
scheduled Expiration Date or that would be vested and exercisable, convertible or
exchangeable (including after giving effect to the acceleration of any vesting or
exercisability, convertibility or exchangeability that may occur as a result of the Offer)
at any time following the then scheduled Expiration Date assuming that the holder of such
Company Options, Company Tandem Option-SARs, RSUs, Warrants or other rights satisfies the
vesting or exercisability, convertibility or exchangeability conditions applicable thereto
during such time period (collectively, the “Minimum Condition”).
(2) Furthermore, Purchaser shall not be obligated to accept for payment, and, subject to the
rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act),
shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any
validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment or paid
for), if:
(i) any waiting period under the HSR Act applicable to the Transactions has not expired
or terminated prior to the termination or expiration of the Offer at or prior to any then
scheduled Expiration Date (the “HSR Condition”);
(ii) any other Required Approvals shall not have been obtained or any waiting period
(or extension thereof) shall not have lapsed, expired or terminated, either unconditionally
or on terms satisfactory to Parent, in each case, at or prior to any then scheduled
Expiration Date (collectively, the “Governmental Approval Condition”); or
(iii) upon the expiration of the Offer and before acceptance of any such Shares for
payment, any of the following events or conditions has occurred or exists and is continuing
at the scheduled Expiration Date, regardless of the circumstances giving rise to such events
or conditions:
I-1
(a) there shall be any statute, rule, regulation, judgment, order or injunction
enacted, entered, enforced, promulgated or deemed applicable pursuant to an
authoritative interpretation by or on behalf of a Governmental Entity to the Offer,
the Merger or any of the other Transactions, or any injunction shall have been
issued and be in effect, by any United States federal or state court that prohibits,
restrains or enjoins the consummation of the Offer or the Merger or that otherwise
has the effect of making the acceptance for payment of Shares pursuant to the Offer
or the consummation of the Merger illegal;
(b) any of the representations and warranties of the Company contained in the
Merger Agreement that (i) are not made as of a specific date are not true and
correct as of the date of the
Merger Agreement and as of the Acceptance Time, as
though made on and as of the Acceptance Time, and (ii) are made as of a specific
date are not true and correct as of such date, in each case, except where (A) the
failure of such representations and warranties (other than the representations or
warranties in Sections 3.2 (Capitalization), 3.3 (Authorization; Validity or
Agreement; Company Action); 3.4 (Board Approvals) and 3.22 (Actions Under Rights
Plan; Takeover Statutes)) to be true and correct (disregarding, for this purpose,
any limitation as to “materiality”, “Company Material Adverse Effect” set forth in
such representations or warranties) to be true and correct has not had and would not
reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect and (B) the failure of the representations or warranties in Sections
3.2 (Capitalization), 3.3 (Authorization; Validity or Agreement; Company Action);
3.4 (Board Approvals) and 3.22 (Actions Under Rights Plan; Takeover Statutes) to be
true and correct is not, individually or in the aggregate, a failure to be true and
correct in any material respect ;
(c) the Company shall have breached or failed to perform or to comply with, in
any material respect, any obligation, agreement or covenant to be performed or
complied with by it under the
Merger Agreement prior to the expiration of the Offer
(or, in the case of Section 6.1, shall have knowingly and intentionally breached or
failed in any material respect to perform or comply with such Section 6.1) and such
breach or failure, if curable, shall not have been cured prior to the expiration of
the Offer;
(d) the Company shall have failed to deliver to Parent a certificate, dated as
of the Expiration Date, signed by the chief executive officer and the chief
financial officer of the Company and certifying as to the satisfaction by the
Company of the conditions specified in clause (2)(iii)(b) of this Annex I and clause
(2)(iii)(c) of this Annex I;
(e) the
Merger Agreement shall have been terminated in accordance with its
terms;
(f) there shall have occurred and be continuing (i) any general suspension of,
or limitation on trading in securities on NASDAQ (other than a
I-2
shortening of trading hours or any coordinated trading halt triggered solely as
a result of a specified increase or decrease in a market index), (ii) a declaration
of a banking moratorium or any suspension of payments in respect of banks in the
United States generally or in the State of
New York, or (iii) any material
limitation (whether or not mandatory) by any Governmental Entity on the extension of
credit by banks or other lending institutions; or
(g) there shall have occurred any Company Material Adverse Effect.
As used in this Annex I and the
Merger Agreement, the term “
Required Approvals” shall
mean any approval, consent or expiration or termination of a waiting period required by applicable
law in a Significant Jurisdiction, the failure of which to obtain (x) would reasonably be expected
to result in material limitation on the ownership or operation by Parent or its affiliates of the
properties, assets or business of Parent, its affiliates or the Surviving Corporation or (y) would
subject Parent or its affiliates to the payment of a material fine or penalty. The other
capitalized terms used and not defined in this Annex I shall have the meanings set forth in the
agreement to which this Annex I is attached, except that the term “
Merger Agreement” shall
be deemed to refer to the agreement to which this Annex I is attached.
I-3
EXHIBIT A
ARTICLES OF INCORPORATION
OF
MGI PHARMA, INC.
ARTICLE I
The name of this Corporation is MGI PHARMA, INC.
ARTICLE II
The registered office of this Corporation is located at 000 Xxxx Xxxxxx, Xxxxx 0, Xx. Xxxx,
Xxxxxxxxx 00000, and the registered agent at such address is National Registered Agents, Inc.
ARTICLE III
This Corporation is authorized to issue an aggregate total of 1,000 shares, all of which shall
be designated Common Stock, having a par value of $0.01 per share.
ARTICLE IV
No shareholder of this Corporation shall have any cumulative voting rights.
ARTICLE V
No shareholder of this Corporation shall have any preemptive rights by virtue of Section
302A.413 of the Minnesota Statutes (or similar provisions of future law) to subscribe for,
purchase, or acquire any shares of the Corporation of any class, whether unissued or now or
hereafter authorized, or any obligations or other securities convertible into or exchangeable for
any such shares.
ARTICLE VI
Any action required or permitted to be taken at a meeting of the Board of Directors of this
Corporation may be taken by written action signed, or consented to by authenticated electronic
communication, by the number of directors that would be required to take such action at a meeting
of the Board of Directors at which all directors were present.
ARTICLE VII
No director of this Corporation shall be personally liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty by such director as a director;
provided, however, that this Article VII shall not eliminate or limit the liability of a director
to the extent provided by applicable law (1) for any breach of the director’s duty of loyalty to
the Corporation or its shareholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 302A.559 or 80A.76 of the
Minnesota Statutes (or similar provisions of future law), (4) for any transaction from which the
director derived an improper personal benefit, or (5) for any act or omission occurring prior to
the effective date of this Article VII. No amendment to or repeal of this Article VII shall apply
to or have any effect on the liability or alleged liability of any director of the Corporation for
or with respect to any acts or omissions of such director occurring prior to such amendment or
repeal.
2
EXHIBIT B
BYLAWS
OF
MGI PHARMA, INC.
SHAREHOLDERS
Section 1.01 Place of Meetings. Each meeting of the shareholders shall be held at the
principal executive office of the Corporation or at such other place as may be designated by the
Board of Directors. Any meeting called by or at the demand of a shareholder or shareholders shall
be held in the county where the principal executive office of the Corporation is located. The Board
of Directors may determine that a meeting of the shareholders shall not be held at a physical
place, but instead solely by means of remote communication. Participation by remote communication
constitutes presence at the meeting.
Section 1.02 Regular Meetings. Regular meetings of the shareholders may be held on an
annual or other less frequent basis as determined by the Board of Directors; provided, however,
that if a regular meeting has not been held during the immediately preceding 15 months, a
shareholder or shareholders holding three percent or more of the voting power of all shares
entitled to vote may demand a regular meeting of shareholders by written demand given to the Chief
Executive Officer or Chief Financial Officer of the Corporation. At each regular meeting the
shareholders shall elect qualified successors for directors who serve for an indefinite term or
whose terms have expired or are due to expire within six months after the date of the meeting and
may transact any other business.
Section 1.03 Special Meetings. A special meeting of the shareholders may be called for
any purpose or purposes at any time by the Chief Executive Officer, by the Chief Financial Officer,
by the Board of Directors or any two or more members thereof, or by one or more shareholders
holding not less than ten percent of the voting power of all shares of the Corporation entitled to
vote (except that a special meeting for the purpose of considering any action to directly or
indirectly effect a business combination, including any action to change or otherwise affect the
composition of the Board of Directors for that purpose, must be called by shareholders holding not
less than twenty-five percent of all shares of the Corporation entitled to vote), who shall demand
such special meeting by written notice given to the Chief Executive Officer or the Chief Financial
Officer of the Corporation specifying the purposes of such meeting.
Section 1.04 Meetings Held Upon Shareholder Demand. Within 30 days after receipt of a
demand by the Chief Executive Officer or the Chief Financial Officer from any shareholder or
shareholders entitled to call a meeting of the shareholders, it shall be the duty of the Board of
Directors of the Corporation to cause a special or regular meeting of shareholders, as the case may
be, to be duly called and held on notice no later than 90 days after receipt of such demand. If the
Board of Directors fails to cause such a meeting to be called and held as required by this Section
1.04, the shareholder or shareholders making the demand may call the meeting by giving notice as
provided in Section 1.06 hereof at the expense of the Corporation.
Section 1.05 Adjournments. Any meeting of the shareholders may be adjourned from time
to time to another date, time and place. If any meeting of the shareholders is so adjourned, no
notice as to such adjourned meeting need be given if the date, time and place at which the meeting
will be reconvened are announced at the time of adjournment and the adjourned meeting is held not
more than 120 days after the date fixed for the original meeting.
Section 1.06 Notice of Meetings. Unless otherwise required by law, written notice of
each meeting of the shareholders, stating the date, time, and place and, in the case of a special
meeting, the purpose or purposes, shall be given at least 10 days and not more than 60 days before
the meeting to every holder of shares entitled to vote at such meeting except as specified in
Section 1.05 or as otherwise permitted by law. Notice may be given to a shareholder by means of
electronic communication if the requirements of Minnesota Statutes Section 302A.436, Subdivision 5,
as amended from time to time, are met. The business transacted at a special meeting of
shareholders is limited to the purposes stated in the notice of the meeting.
Section 1.07 Waiver of Notice. A shareholder may waive notice of the date, time,
place, or purpose of a meeting of shareholders. A waiver of notice by a shareholder entitled to
notice is effective whether given before, at, or after the meeting, and whether given in writing,
orally, by authenticated electronic communication, or by attendance. Attendance by a shareholder at
a meeting, including attendance by means of remote communication, is a waiver of notice of that
meeting, unless the shareholder objects at the beginning of the meeting to the transaction of
business because the meeting is not lawfully called or convened, or objects before a vote on an
item of business because the item may not lawfully be considered at that meeting and does not
participate in the consideration of the item at that meeting.
Section 1.08 Voting Rights. Subdivision 1. A shareholder shall have one vote for each
share held which is entitled to vote. Except as otherwise required by law, a holder of shares
entitled to vote may vote any portion of the shares in any way the shareholder chooses. If a
shareholder votes without designating the proportion or number of shares voted in a particular way,
the shareholder is deemed to have voted all of the shares in that way.
Subdivision 2. The Board of Directors (or an officer of the Corporation, if authorized by the
Board of Directors) may fix a date not more than 60 days before the date of a meeting of
shareholders as the date for the determination of the holders of shares entitled to notice of and
entitled to vote at the meeting. When a date is so fixed, only shareholders on that date are
entitled to notice of and permitted to vote at that meeting of shareholders.
Section 1.09 Proxies. A shareholder may cast or authorize the casting of a vote by (a)
filing a written appointment of a proxy, signed by the shareholder, with an officer of the
Corporation at or before the meeting at which the appointment is to be effective, or (b) by
telephonic transmission or authenticated electronic communication, whether or not accompanied by
written instructions of the shareholder, of an appointment of a proxy with the Corporation or the
Corporation’s duly authorized agent at or before the meeting at which the appointment is to be
effective. The telephonic transmission or authenticated electronic communication must set forth or
be submitted with information from which it can be determined that the appointment was
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authorized by the shareholder. Any copy, facsimile telecommunication, or other reproduction of the
original of either the writing or transmission may be used in lieu of the original, provided that
it is a complete and legible reproduction of the entire original.
Section 1.10 Quorum. The holders of a majority of the voting power of the shares
entitled to vote at a shareholders meeting are a quorum for the transaction of business. If a
quorum is present when a duly called or held meeting is convened, the shareholders present may
continue to transact business until adjournment, even though the withdrawal of a number of the
shareholders originally present leaves less than the proportion or number otherwise required for a
quorum.
Section 1.11 Acts of Shareholders. Subdivision 1. Except for the election of directors
or as otherwise required by law or specified in the Articles of Incorporation of the Corporation,
the shareholders shall take action by the affirmative vote of the holders of the greater of (a) a
majority of the voting power of the shares present and entitled to vote on that item of business or
(b) a majority of the voting power of the minimum number of shares entitled to vote that would
constitute a quorum for the transaction of business at a duly held meeting of shareholders.
Directors are elected by a plurality of the voting power of the shares present and entitled to vote
on the election of directors at a meeting at which a quorum is present.
Subdivision 2. A shareholder voting by proxy authorized to vote on less than all items of
business considered at the meeting shall be considered to be present and entitled to vote only with
respect to those items of business for which the proxy has authority to vote. A proxy who is given
authority by a shareholder who abstains with respect to an item of business shall be considered to
have authority to vote on that item of business.
Section 1.12 Action Without a Meeting. Any action required or permitted to be taken at
a meeting of the shareholders of the Corporation may be taken without a meeting by written action
signed, or consented to by authenticated electronic communication, by all of the shareholders
entitled to vote on that action. The written action is effective when it has been signed, or
consented to by authenticated electronic communication, by the required shareholders, unless a
different effective time is provided in the written action. If written action is permitted to be
taken, and is taken, by less than all shareholders, then all shareholders must be notified of its
text and effective time within five days after its effective time.
BOARD OF DIRECTORS
Section 2.01 Number; Qualifications. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. Directors shall be natural persons.
The number of directors to constitute the Board of Directors shall be determined from time to time
by resolutions of the Board of Directors. Directors need not be shareholders.
Section 2.02 Term. Each director shall serve for an indefinite term that expires at
the next regular meeting of the shareholders. A director shall hold office until a successor is
elected and has qualified or until the earlier death, resignation, removal or disqualification of
the director.
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Section 2.03 Vacancies. Vacancies on the Board of Directors resulting from the death,
resignation, removal or disqualification of a director may be filled by the affirmative vote of a
majority of the remaining members of the Board of Directors, though less than a quorum. Vacancies
on the Board of Directors resulting from newly created directorships may be filled by the
affirmative vote of a majority of the directors serving at the time such directorships are created.
Each person elected to fill a vacancy shall hold office until a qualified successor is elected by
the shareholders at the next regular meeting or at any special meeting duly called for that
purpose.
Section 2.04 Place of Meetings. Each meeting of the Board of Directors shall be held
at the principal executive office of the Corporation or at such other place as may be designated
from time to time by a majority of the members of the Board of Directors. The Board of Directors
may determine that a meeting of the Board of Directors not be held at a physical place, but instead
solely by means of remote communication through which the directors may participate with each other
during the meeting.
Section 2.05 Regular Meetings. Regular meetings of the Board of Directors for the
election of officers and the transaction of any other business shall be held without notice at the
place of and immediately after each regular meeting of the shareholders.
Section 2.06 Special Meetings. A special meeting of the Board of Directors may be
called for any purpose or purposes at any time by any member of the Board of Directors by giving
not less than two days’ notice to all directors of the date, time and place of the meeting,
provided that when notice is mailed, at least four days’ notice shall be given. The notice need not
state the purpose of the meeting.
Section 2.07 Waiver of Notice; Previously Scheduled Meetings. Subdivision 1. A
director of the Corporation may waive notice of the date, time and place of a meeting of the Board
of Directors. A waiver of notice by a director entitled to notice is effective whether given
before, at or after the meeting, and whether given in writing, orally, by authenticated electronic
communication, or by attendance. Attendance by a director at a meeting is a waiver of notice of
that meeting, unless the director objects at the beginning of the meeting to the transaction of
business because the meeting is not lawfully called or convened and thereafter does not participate
in the meeting.
Subdivision 2. If the day or date, time and place of a Board of Directors meeting have been
provided herein or announced at a previous meeting of the Board of Directors, no notice is
required. Notice of an adjourned meeting need not be given other than by announcement at the
meeting at which adjournment is taken of the date, time and place at which the meeting will be
reconvened.
Section 2.08 Quorum. The presence of a majority of the directors currently holding
office shall be necessary to constitute a quorum for the transaction of business. In the absence of
a quorum, a majority of the directors present may adjourn a meeting from time to time without
further notice until a quorum is present. If a quorum is present when a duly called or held meeting
is convened, the directors present may continue to transact business until adjournment,
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even though the withdrawal of a number of the directors originally present leaves less than the
proportion or number otherwise required for a quorum.
Section 2.09 Acts of Board of Directors. Except as otherwise required by law or
specified in the Articles of Incorporation of the Corporation, the Board of Directors shall take
action by the affirmative vote of a majority of the directors present at a duly held meeting.
Section 2.10 Participation by Remote Communication. A director may participate in a
Board of Directors meeting by conference telephone, or, if authorized by the Board of Directors, by
any other means of remote communication through which the director, other directors so
participating, and all directors physically present at the meeting may participate with each other
during the meeting. A director so participating is deemed present at the meeting.
Section 2.11 Absent Directors. A director of the Corporation may give advance written
consent or opposition to a proposal to be acted on at a Board of Directors meeting. If the director
is not present at the meeting, consent or opposition to a proposal does not constitute presence for
purposes of determining the existence of a quorum, but consent or opposition shall be counted as a
vote in favor of or against the proposal and shall be entered in the minutes or other record of
action at the meeting, if the proposal acted on at the meeting is substantially the same or has
substantially the same effect as the proposal to which the director has consented or objected.
Section 2.12 Action Without a Meeting. An action required or permitted to be taken at
a Board of Directors meeting may be taken without a meeting by written action signed, or consented
to by authenticated electronic communication, by all of the directors. Any action, other than an
action requiring shareholder approval if the Articles of Incorporation of the Corporation so
provide, may be taken by written action signed, or consented to by authenticated electronic
communication, by the number of directors that would be required to take the same action at a
meeting of the Board of Directors at which all directors were present. The written action is
effective when signed, or consented to by authenticated electronic communication, by the required
number of directors, unless a different effective time is provided in the written action. If
written action is permitted to be taken, and is taken, by less than all directors, then all
directors shall be notified immediately of its text and effective date.
Section 2.13 Committees. Subdivision 1. A resolution approved by the affirmative vote
of a majority of the Board of Directors may establish committees having the authority of the Board
of Directors in the management of the business of the Corporation only to the extent provided in
the resolutions. Committees shall be subject at all times to the direction and control of the Board
of Directors, except as otherwise required by the Minnesota Business Corporation Act.
Subdivision 2. A committee shall consist of one or more natural persons, who need not be
directors, appointed by affirmative vote of a majority of the directors present at a duly held
Board of Directors meeting.
5
Subdivision 3. Section 2.04 and Sections 2.06 to 2.12 hereof shall apply to committees and
members of committees to the same extent as those sections apply to the Board of the Directors and
directors.
Subdivision 4. Minutes, if any, of committee meetings shall be made available upon request to
members of the committee and to any director.
Subdivision 5. Unless otherwise provided in the Articles of Incorporation of the Corporation
or the resolution of the Board of Directors establishing the committee, a committee may create one
or more subcommittees, each consisting of one or more members of the committee, and may delegate to
a subcommittee any or all of the authority of the committee. In these Bylaws, unless the language
or context clearly indicates that a different meaning is intended, any reference to a committee is
deemed to include a subcommittee, and any reference to a committee member is deemed to include a
subcommittee member.
Section 2.14 Compensation. The Board of Directors may fix the compensation, if any, of
directors.
OFFICERS
Section 3.01 Number and Designation. The Corporation shall have one or more natural
persons exercising the functions of the offices of Chief Executive Officer and Chief Financial
Officer. The Board of Directors may elect or appoint such other officers or agents as it deems
necessary for the operation and management of the Corporation, with such powers, rights, duties and
responsibilities as may be determined by the Board of Directors, including, without limitation, a
President, one or more Vice Presidents, a Secretary and a Treasurer. Any of the offices or
functions of those offices may be held by the same person.
Section 3.02 Chief Executive Officer. Unless provided otherwise by a resolution
adopted by the Board of Directors, the Chief Executive Officer (a) shall have general active
management of the business of the Corporation; (b) shall, when present, preside at all meetings of
the shareholders and Board of Directors; (c) shall see that all orders and resolutions of the Board
of Directors are carried into effect; (d) may maintain records of and certify proceedings of the
Board of Directors and shareholders; and (e) shall perform such other duties as may from time to
time be assigned by the Board of Directors.
Section 3.03 Chief Financial Officer. Unless provided otherwise by a resolution
adopted by the Board of Directors, the Chief Financial Officer (a) shall keep accurate financial
records for the Corporation; (b) shall deposit all monies, drafts and checks in the name of and to
the credit of the Corporation in such banks and depositories as the Board of Directors shall
designate from time to time; (c) shall endorse for deposit all notes, checks and drafts received by
the Corporation as ordered by the Board of Directors, making proper vouchers therefor; (d) shall
disburse corporate funds and issue checks and drafts in the name of the Corporation, as ordered by
the Board of Directors; (e) shall render to the Chief Executive Officer and the Board of Directors,
whenever requested, an account of all of such officer’s transactions as Chief Financial
6
Officer and of the financial condition of the Corporation; and (f) shall perform such other duties
as may be prescribed by the Board of Directors or the Chief Executive Officer from time to time.
Section 3.04 Authority and Duties. In addition to the foregoing authority and duties,
all officers of the Corporation shall respectively have such authority and perform such duties in
the management of the business of the Corporation as may be designated from time to time by the
Board of Directors.
Section 3.05 Term. Subdivision 1. All officers of the Corporation shall hold office
until their respective successors are chosen and have qualified or until their earlier death,
resignation or removal.
Subdivision 2. An officer may resign at any time by giving written notice to the Corporation.
The resignation is effective without acceptance when the notice is given to the Corporation, unless
a later effective date is specified in the notice.
Subdivision 3. An officer may be removed at any time, with or without cause, by a resolution
approved by the affirmative vote of a majority of the directors present at a duly held Board of
Directors meeting.
Subdivision 4. A vacancy in an office because of death, resignation, removal, disqualification
or other cause may, or in the case of a vacancy in the office of Chief Executive Officer or Chief
Financial Officer shall, be filled for the unexpired portion of the term by the Board of Directors.
Section 3.06 Salaries. The salaries of all officers of the Corporation shall be fixed
by the Board of Directors or by the Chief Executive Officer if authorized by the Board of
Directors.
INDEMNIFICATION
Section 4.01 Indemnification. The Corporation shall indemnify its officers and
directors for such expenses and liabilities, in such manner, under such circumstances, and to such
extent, as required or permitted by Minnesota Statutes, Section 302A.521, as amended from time to
time, or as required or permitted by other provisions of applicable law.
Section 4.02 Insurance. The Corporation may purchase and maintain insurance on behalf
of any person in such person’s official capacity against any liability asserted against and
incurred by such person in or arising from that capacity, whether or not the Corporation would
otherwise be required to indemnify the person against the liability.
SHARES
Section 5.01 Certificated and Uncertificated Shares. Subdivision 1. The shares of the
Corporation shall be either certificated shares or uncertificated shares. Each holder of duly
issued certificated shares is entitled to a certificate of shares.
7
Subdivision 2. Each certificate of shares of the Corporation shall be signed by the Chief
Executive Officer, or the President or any Vice President, and the Chief Financial Officer, or the
Secretary or any Assistant Secretary, but when a certificate is signed by a transfer agent or a
registrar, the signature of any such officer upon such certificate may be facsimiles, engraved or
printed. If a person signs or has a facsimile signature placed upon a certificate while an officer,
transfer agent or registrar of the Corporation, the certificate may be issued by the Corporation,
even if the person has ceased to serve in that capacity before the certificate is issued, with the
same effect as if the person had that capacity at the date of its issue.
Subdivision 3. A certificate representing shares issued by the Corporation shall, if the
Corporation is authorized to issue shares of more than one class or series, set forth upon the face
or back of the certificate, or shall state that the Corporation will furnish to any shareholder
upon request and without charge, a full statement of the designations, preferences, limitations and
relative rights of the shares of each class or series authorized to be issued, so far as they have
been determined, and the authority of the Board of Directors to determine the relative rights and
preferences of subsequent classes or series.
Subdivision 4. The Corporation may determine that some or all of any or all classes and series
of the shares of the Corporation will be uncertificated shares. Any such determination shall not
apply to shares represented by a certificate until the certificate is surrendered to the
Corporation.
Section 5.02 Declaration of Dividends and Other Distributions. The Board of Directors
shall have the authority to declare dividends and other distributions upon the shares of the
Corporation to the extent permitted by law.
Section 5.03 Transfer of Shares. Shares of the Corporation may be transferred only on
the books of the Corporation by the holder thereof, in person or by such person’s attorney. In the
case of certificated shares, shares shall be transferred only upon surrender and cancellation of
certificates for a like number of shares. The Board of Directors, however, may appoint one or more
transfer agents and registrars to maintain the share records of the Corporation and to effect
transfers of shares.
Section 5.04 Record Date. The Board of Directors may fix a time, not exceeding 60 days
preceding the date fixed for the payment of any dividend or other distribution, as a record date
for the determination of the shareholders entitled to receive payment of such dividend or other
distribution, and in such case only shareholders of record on the date so fixed shall be entitled
to receive payment of such dividend or other distribution, notwithstanding any transfer of any
shares on the books of the Corporation after any record date so fixed.
MISCELLANEOUS
Section 6.01 Execution of Instruments. Subdivision 1. All deeds, mortgages, bonds,
checks, contracts and other instruments pertaining to the business and affairs of the Corporation
shall be signed on behalf of the Corporation by the Chief Executive Officer, or the President, or
8
any Vice President, or by such other person or persons as may be designated from time to time by
the Board of Directors.
Subdivision 2. If a document must be executed by persons holding different offices or
functions and one person holds such offices or exercises such functions, that person may execute
the document in more than one capacity if the document indicates each such capacity.
Section 6.02 Advances. The Corporation may advance money to its directors, officers or
employees to cover expenses that can reasonably be anticipated to be incurred by them in the
performance of their duties and for which they would be entitled to reimbursement in the absence of
an advance.
Section 6.03 Corporate Seal. The Corporation shall have no seal.
Section 6.04 Fiscal Year. The fiscal year of the Corporation shall be determined by
the Board of Directors.
Section 6.05 Amendments. The Board of Directors shall have the power to adopt, amend
or repeal the Bylaws of the Corporation, subject to the power of the shareholders to change or
repeal the same; provided, however, that the Board of Directors shall not adopt, amend or repeal
any Bylaw fixing a quorum for meetings of shareholders, prescribing procedures for removing
directors or filling vacancies in the Board of Directors, or fixing the number of directors or
their classifications, qualifications or terms of office, but may adopt or amend a Bylaw that
increases the number of directors.
9
COMPANY DISCLOSURE SCHEDULE*
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Section 3.1(b)
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Organization |
Section 3.2(c)
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Capitalization—Company Stock Plans, Company Stock Rights
and Restricted Stock |
Section 3.2(d)
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Capitalization—Warrants |
Section 3.2(e)
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Capitalization |
Section 3.5(a)
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Consents and Approvals; No Violations |
Section 3.5(b)
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Consents and Approvals; No Violations |
Section 3.6(a)
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Company SEC Documents and Financial Statements |
Section 3.7(a)
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Absence of Certain Changes |
Section 3.7(b)
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Absence of Certain Changes |
Section 3.8
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Absence of Undisclosed Liabilities |
Section 3.9
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Litigation |
Section 3.10(a)
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Employee Benefit Plans; ERISA |
Section 3.10(b)
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Employee Benefit Plans; ERISA |
Section 3.10(c)
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Employee Benefit Plans; ERISA |
Section 3.10(f)
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Employee Benefit Plans; ERISA |
Section 3.10(g)
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Employee Benefit Plans; ERISA |
Section 3.10(h)
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Employee Benefit Plans; ERISA |
Section 3.10(i)
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Employee Benefit Plans; ERISA |
Section 3.11
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Taxes |
Section 3.12
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Material Contracts |
Section 3.13(a)
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Title to Properties and Encumbrances |
Section 3.13(b)
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Title to Properties and Encumbrances |
Section 3.14(a)
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Intellectual Property |
Section 3.14(b)
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Intellectual Property |
Section 3.20
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Environmental Laws and Regulations |
Section 3.23
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Regulatory Compliance |
Section 5.1
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Conduct of Business by the Company Pending the Merger |
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* |
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The Company has omitted certain schedules in accordance with Regulation S-K 601(b)(2). The
Company will furnish the omitted schedules to the Commission upon request. |