Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXXXXX INTERACTIVE INC.,
TOTAL MERGER SUB INC.
AND
TOTAL RESEARCH CORPORATION
August 5, 2001
TABLE OF CONTENTS
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SECTION 1 - DEFINITIONS/INTERPRETATION.........................................1
1.1 DEFINITIONS................................................1
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1.1.1 "ANTITRUST LAW"......................................1
1.1.2 "APPROVALS"..........................................1
1.1.3 "ASSUMED STOCK OPTION"...............................1
1.1.4 "BALANCE SHEET DATE".................................1
1.1.5 "BENEFICIAL " or "BENEFICIALLY,".....................1
1.1.6 "BENEFIT PLAN".......................................1
1.1.7 "BENEFITS CONTINUATION PROGRAM"......................2
1.1.8 "BOARD EXPANSION"....................................2
1.1.9 "CERTIFICATE OF MERGER"..............................2
1.1.10 "CERTIFICATES"......................................2
1.1.11 "CLAIM".............................................2
1.1.12 "CLOSING"...........................................2
1.1.13 "CLOSING DATE"......................................2
1.1.14 "CODE"..............................................2
1.1.15 "CONFIDENTIALITY AGREEMENT".........................2
1.1.16 "CORPORATION LAW"...................................2
1.1.17 "DOJ"...............................................2
1.1.18 "EFFECTIVE TIME"....................................2
1.1.19 "ENVIRONMENTAL CLAIM"...............................2
1.1.20 "ENVIRONMENTAL LAWS"................................2
1.1.21 "ENVIRONMENTAL PERMIT"..............................2
1.1.22 "ERISA".............................................3
1.1.23 "ERISA AFFILIATE"...................................3
1.1.24 "EXCHANGE ACT"......................................3
1.1.25 "EXCHANGE AGENT"....................................3
1.1.26 "EXCHANGE DEPOSIT"..................................3
1.1.27 "EXCHANGE RATIO"....................................3
1.1.28 "EXECUTIVE".........................................3
1.1.29 "EXPANSION DIRECTORS"...............................3
1.1.30 "EXPENSES"..........................................3
1.1.31 "FTC"...............................................3
1.1.32 "GAAP"..............................................3
1.1.33 "GOVERNMENTAL ENTITY"...............................3
1.1.34 "XXXXXX ACQUISITION AGREEMENT"......................3
1.1.35 "XXXXXX BENEFIT PLAN"...............................3
1.1.36 "XXXXXX BOARD"......................................4
1.1.37 "XXXXXX DISCLOSURE SCHEDULE"........................4
1.1.38 "XXXXXX PERMITS"....................................4
1.1.39 "XXXXXX SEC DOCUMENTS"..............................4
1.1.40 "XXXXXX SHARE(S)"...................................4
1.1.41 "XXXXXX STOCKHOLDERS MEETING".......................4
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1.1.42 "XXXXXX TERMINATION FEE"............................4
1.1.43 "XXXXXX TAKEOVER PROPOSAL"..........................4
1.1.44 "XXXX-XXXXX"........................................4
1.1.45 "INCENTIVE PLAN"....................................4
1.1.46 "INDEMNIFIED PARTY".................................4
1.1.47 "INTEGRATION COMMITTEE".............................4
1.1.48 "INTELLECTUAL PROPERTY".............................4
1.1.49 "JOINT PROXY STATEMENT/PROSPECTUS"..................4
1.1.50 "KNOW" or "KNOWLEDGE"...............................5
1.1.51 "LAW"...............................................5
1.1.52 "LIEN"..............................................5
1.1.53 "MATERIAL ADVERSE EFFECT"...........................5
1.1.54 "MATERIAL AGREEMENT"................................5
1.1.55 "MERGER"............................................6
1.1.56 "MERGER CONSIDERATION"..............................6
1.1.57 "MERGER SUB BOARD"..................................6
1.1.58 "NASDAQ MARKETPLACE RULES"..........................6
1.1.59 "NON-XXXXXX THIRD PARTY"............................6
1.1.60 "NON-TOTAL THIRD PARTY".............................6
1.1.61 "ORGANIZATIONAL DOCUMENTS"..........................6
1.1.62 "PERSON"............................................6
1.1.63 "REQUIRED XXXXXX VOTE"..............................6
1.1.64 "REQUIRED XXXXXX VOTE TIME".........................6
1.1.65 "REQUIRED TOTAL VOTE"...............................6
1.1.66 "REQUIRED TOTAL VOTE TIME"..........................6
1.1.67 "S-4"...............................................6
1.1.68 "SEC"...............................................6
1.1.69 "SECURITIES ACT"....................................7
1.1.70 "STOCKHOLDER MEETINGS"..............................7
1.1.71 "STOCK OPTION"......................................7
1.1.72 "STOCK OPTION PLAN".................................7
1.1.73 "SUBSIDIARY"........................................7
1.1.74 "SUPERIOR XXXXXX PROPOSAL"..........................7
1.1.75 "SUPERIOR TOTAL PROPOSAL"...........................7
1.1.76 "SURVIVING CORPORATION".............................7
1.1.77 "TAX" or "TAXES"....................................7
1.1.78 "TAX RETURNS".......................................7
1.1.79 "TERMINATION DATE"..................................7
1.1.80 "TOTAL ACQUISITION AGREEMENT".......................7
1.1.81 "TOTAL ALTERNATIVE TRANSACTION".....................7
1.1.82 "TOTAL BENEFIT PLAN"................................7
1.1.83 "TOTAL BOARD".......................................8
1.1.84 "TOTAL DISCLOSURE SCHEDULE".........................8
1.1.85 "TOTAL EMPLOYEE"....................................8
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1.1.86 "TOTAL PERMITS".....................................8
1.1.87 "TOTAL SEC DOCUMENTS"...............................8
1.1.88 "TOTAL SHARE(S)"....................................8
1.1.89 "TOTAL STOCKHOLDERS MEETING"........................8
1.1.90 "TOTAL TAKEOVER PROPOSAL"...........................8
1.1.91 "TOTAL TERMINATION FEE".............................8
1.2 INTERPRETATION.............................................8
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1.2.1 USE OF CERTAIN WORDS.................................8
1.2.2 APPLICABILITY OF DEFINITIONS.........................8
1.2.3 REFERENCES TO OTHER MATERIALS........................8
1.2.4 REFERENCES TO PERSONS................................9
1.2.5 REFERENCES TO MADE AVAILABLE.........................9
SECTION 2 - THE MERGER.........................................................9
2.1 THE MERGER.................................................9
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2.2 CLOSING OF THE MERGER......................................9
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2.3 EFFECTS OF THE MERGER......................................9
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2.4 ORGANIZATIONAL DOCUMENTS...................................9
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2.5 DIRECTORS..................................................9
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2.6 FURTHER ASSURANCES; POWER OF ATTORNEY.....................10
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2.6.1 FURTHER ACTIONS.....................................10
2.6.2 POWER OF ATTORNEY...................................10
SECTION 3 - CONVERSION OF SECURITIES..........................................10
3.1 CONVERSION OF SECURITIES..................................10
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3.1.1 SECURITIES OF MERGER SUB............................10
3.1.2 CANCELLATION OF SHARES OF TOTAL HELD
IN TREASURY AND XXXXXX-OWNED SHARES.................10
3.1.3 CONVERSION OF TOTAL COMMON STOCK....................11
3.1.4 ADJUSTMENTS TO EXCHANGE RATIO.......................11
3.2 FRACTIONAL SHARES OF XXXXXX COMMON STOCK..................11
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3.2.1 NO FRACTIONAL INTERESTS.............................11
3.2.2 CASH PAYMENT FOR FRACTIONAL INTERESTS...............11
3.3 STOCK OPTIONS.............................................11
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3.3.1 EXCHANGE OF OPTIONS.................................11
3.3.2 NOTICES.............................................12
3.3.3 XXXXXX ACTIONS......................................12
3.4 EXCHANGE AGENT............................................12
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3.5 EXCHANGE DEPOSIT..........................................12
----------------
3.5.1 DEPOSIT WITH EXCHANGE AGENT.........................12
3.5.2 TERMINATION OF EXCHANGE DEPOSIT.....................13
3.5.3 NO LIABILITY........................................13
3.5.4 INVESTMENT OF THE EXCHANGE DEPOSIT..................13
3.6 EXCHANGE PROCEDURES.......................................13
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3.7 SHARE OWNERSHIP RIGHTS AFTER EFFECTIVE TIME...............13
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3.7.1 STOCK TRANSFER BOOKS................................13
3.7.2 FULL SATISFACTION...................................14
3.7.3 PAYMENTS WITH RESPECT TO UNSURRENDERED
CERTIFICATES........................................14
3.7.4 RIGHTS OF HOLDERS AFTER TERMINATION OF DEPOSIT......14
3.8 LOST CERTIFICATES.........................................14
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3.9 WITHHOLDING RIGHTS........................................15
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3.10 AFFILIATES................................................15
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3.11 SECTION 16................................................15
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SECTION 4 - REPRESENTATIONS AND WARRANTIES OF TOTAL...........................15
4.1 CAPITALIZATION OF TOTAL AND ITS SUBSIDIARIES..............15
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4.1.1 CAPITALIZATION OF TOTAL.............................15
4.1.2 CAPITALIZATION OF SUBSIDIARIES......................16
4.1.3 NO LIENS ON INTERESTS IN SUBSIDIARIES...............16
4.2 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES..............16
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4.2.1 EXISTENCE, POWER, AND QUALIFICATION.................16
4.2.2 SUBSIDIARIES........................................17
4.2.3 COPIES OF DOCUMENTS.................................17
4.3 AUTHORITY RELATIVE TO THIS AGREEMENT......................17
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4.3.1 POWER...............................................17
4.3.2 CORPORATE PROCEEDINGS; ENFORCEABILITY...............17
4.3.3 ENFORCEABILITY......................................17
4.3.4 STOCKHOLDER ACTION..................................17
4.4 FILINGS WITH SEC; FINANCIAL STATEMENTS....................18
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4.4.1 SEC FILINGS.........................................18
4.4.2 TOTAL FINANCIAL STATEMENTS..........................18
4.5 NO UNDISCLOSED LIABILITIES................................18
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4.6 MATERIAL AGREEMENTS.......................................18
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4.7 ABSENCE OF CHANGES........................................19
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4.7.1 MATERIAL ADVERSE DEVELOPMENTS.......................19
4.7.2 DISTRIBUTIONS.......................................19
4.7.3 AMENDMENTS..........................................19
4.7.4 DEBT AND GUARANTEES.................................19
4.7.5 LIENS...............................................19
4.7.6 LOANS AND CONTRIBUTIONS.............................19
4.7.7 MATERIAL AGREEMENTS.................................20
4.7.8 ACCOUNTING CHANGES..................................20
4.7.9 EXECUTIVES..........................................20
4.8 INFORMATION SUPPLIED......................................20
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4.9 CONSENTS AND APPROVALS....................................21
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4.10 NO VIOLATION..............................................21
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4.10.1 VIOLATIONS RELATED TO TRANSACTION..................21
4.10.2 VIOLATIONS RELATED TO DOCUMENTS AND AGREEMENTS.....21
4.10.3 VIOLATIONS RELATED TO LAW..........................21
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4.10.4 COMPLIANCE WITH ENVIRONMENTAL LAWS.................22
4.10.5 FRANCHISES; PERMITS................................22
4.11 LITIGATION; CLAIMS........................................22
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4.12 EMPLOYEE BENEFIT PLANS; ERISA.............................22
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4.12.1 BENEFIT PLAN DOCUMENTS.............................22
4.12.2 NO CHANGE IN TOTAL BENEFIT PLANS...................23
4.12.3 TITLE IV OF ERISA..................................23
4.12.4 PROHIBITED TRANSACTIONS............................23
4.12.5 NO MULTI-EMPLOYER PLANS............................23
4.12.6 DETERMINATION LETTERS..............................23
4.12.7 ACTIONS RELATED TO BENEFIT PLANS...................24
4.12.8 APPLICABLE REPORTS.................................24
4.12.9 EFFECT OF TRANSACTIONS.............................24
4.13 KEY EMPLOYEES.............................................24
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4.14 TAXES.....................................................24
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4.14.1 RETURNS............................................25
4.14.2 PAYMENTS...........................................25
4.14.3 TAXES NOT YET DUE..................................25
4.14.4 WAIVERS OF STATUTES OF LIMITATION..................25
4.14.5 AUDITS.............................................25
4.14.6 SECTION 355........................................26
4.15 REAL PROPERTY INTERESTS...................................26
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4.16 INSURANCE.................................................26
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4.17 ABSENCE OF QUESTIONABLE PAYMENTS..........................26
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4.18 INTELLECTUAL PROPERTY.....................................26
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4.18.1 ADEQUATE RIGHTS....................................26
4.18.2 NO INFRINGEMENT; CLAIMS............................26
4.18.3 PROTECTION OF CONFIDENTIALITY; EMPLOYEES...........27
4.18.4 CERTAIN INTELLECTUAL PROPERTY......................27
4.19 INTERESTED PARTY TRANSACTIONs.............................27
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4.20 OPINION OF FINANCIAL ADVISOR..............................27
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4.21 BROKERS...................................................27
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4.22 TAX TREATMENT.............................................28
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4.23 TAKEOVER STATUTES.........................................28
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4.24 EUROPEAN SUBSIDIARIES.....................................28
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4.25 VOTING AGREEMENTS.........................................28
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SECTION 5 - REPRESENTATIONS AND WARRANTIES OF XXXXXX AND MERGER SUB...........28
5.1 CAPITALIZATION OF XXXXXX AND ITS SUBSIDIARIES.............28
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5.1.1 CAPITALIZATION OF XXXXXX............................28
5.1.2 CAPITALIZATION OF SUBSIDIARIES......................29
5.1.3 NO LIENS ON INTERESTS IN SUBSIDIARIES...............30
5.2 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES..............30
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5.2.1 EXISTENCE, POWER, AND QUALIFICATION.................30
5.2.2 SUBSIDIARIES........................................30
5.2.3 COPIES OF DOCUMENTS.................................30
5.3 AUTHORITY RELATIVE TO THIS AGREEMENT......................30
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5.3.1 POWER...............................................30
5.3.2 CORPORATE PROCEEDINGS; ENFORCEABILITY...............30
5.3.3 ENFORCEABILITY......................................31
5.3.4 STOCKHOLDER ACTION..................................31
5.4 FILINGS WITH SEC; FINANCIAL STATEMENTS....................31
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5.4.1 SEC FILINGS.........................................31
5.4.2 XXXXXX FINANCIAL STATEMENTS.........................31
5.5 NO UNDISCLOSED LIABILITIES................................32
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5.6 MATERIAL AGREEMENTS.......................................32
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5.7 ABSENCE OF CHANGES........................................32
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5.7.1 MATERIAL ADVERSE DEVELOPMENTS.......................32
5.7.2 DISTRIBUTIONS.......................................32
5.7.3 AMENDMENTS..........................................32
5.7.4 DEBT AND GUARANTEES.................................33
5.7.5 LIENS...............................................33
5.7.6 LOANS AND CONTRIBUTIONS.............................33
5.7.7 MATERIAL AGREEMENTS.................................33
5.7.8 ACCOUNTING CHANGES..................................33
5.7.9 EXECUTIVES..........................................33
5.8 INFORMATION SUPPLIED......................................34
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5.9 CONSENTS AND APPROVALS....................................34
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5.10 NO VIOLATION..............................................34
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5.10.1 VIOLATIONS RELATED TO TRANSACTION..................34
5.10.2 VIOLATIONS RELATED TO DOCUMENTS AND AGREEMENTS.....34
5.10.3 VIOLATIONS RELATED TO LAW..........................35
5.10.4 COMPLIANCE WITH ENVIRONMENTAL LAWS.................35
5.10.5 FRANCHISES; PERMITS................................35
5.11 LITIGATION; CLAIMS........................................35
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5.12 EMPLOYEE BENEFIT PLANS; ERISA.............................36
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5.12.1 BENEFIT PLAN DOCUMENTS.............................36
5.12.2 NO CHANGE IN XXXXXX BENEFIT PLANS..................36
5.12.3 TITLE IV OF ERISA..................................36
5.12.4 PROHIBITED TRANSACTIONS............................36
5.12.5 NO MULTI-EMPLOYER PLANS............................37
5.12.6 DETERMINATION LETTERS..............................37
5.12.7 ACTIONS RELATED TO BENEFIT PLANS...................37
5.12.8 APPLICABLE REPORTS.................................37
5.12.9 EFFECT OF TRANSACTIONS.............................37
5.13 KEY EMPLOYEES.............................................38
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5.14 TAXES.....................................................38
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5.14.1 RETURNS............................................38
5.14.2 PAYMENTS...........................................38
5.14.3 TAXES NOT YET DUE..................................38
5.14.4 WAIVERS OF STATUTES OF LIMITATION..................38
5.14.5 AUDITS.............................................39
5.14.6 SECTION 355........................................39
5.15 REAL PROPERTY INTERESTS...................................39
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5.16 INSURANCE.................................................39
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5.17 ABSENCE OF QUESTIONABLE PAYMENTS..........................39
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5.18 INTELLECTUAL PROPERTY.....................................39
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5.18.1 ADEQUATE RIGHTS....................................39
5.18.2 NO INFRINGEMENT; CLAIMS............................40
5.18.3 PROTECTION OF CONFIDENTIALITY; EMPLOYEES...........40
5.18.4 CERTAIN INTELLECTUAL PROPERTY......................40
5.19 INTERESTED PARTY TRANSACTIONS.............................41
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5.20 OPINION OF FINANCIAL ADVISOR..............................41
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5.21 BROKERS...................................................41
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5.22 TAX TREATMENT.............................................41
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5.23 TAKEOVER STATUTES.........................................41
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5.24 VOTING AGREEMENTS.........................................41
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5.25 EMPLOYMENT AGREEMENT......................................42
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SECTION 6 - COVENANTS OF TOTAL................................................42
6.1 CONDUCT OF BUSINESS OF TOTAL..............................42
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6.1.1 ORDINARY COURSE.....................................42
6.1.2 ORGANIZATIONAL DOCUMENTS............................42
6.1.3 SECURITIES..........................................42
6.1.4 DISTRIBUTIONS.......................................42
6.1.5 RELATIONSHIPS.......................................42
6.1.6 SEVERANCE; EMPLOYMENT AGREEMENTS....................43
6.1.7 COMPENSATION........................................43
6.1.8 INDEBTEDNESS; GUARANTEES; LIENS.....................43
6.1.9 DISCHARGE OF LIABILITIES............................43
6.1.10 DISPOSITION OF ASSETS..............................43
6.1.11 ACQUISITIONS; MATERIAL AGREEMENTS..................44
6.1.12 ACCOUNTING PRACTICES; REVALUATION OF ASSETS........44
6.1.13 LIQUIDATION........................................44
6.1.14 TAX LIABILITIES....................................44
6.1.15 WAIVERS OF RIGHTS; PREPAYMENTS.....................44
6.1.16 INSURANCE..........................................44
6.1.17 LABOR AGREEMENTS...................................44
6.1.18 SETTLEMENTS........................................44
6.1.19 HINDRANCE OF TAX FREE MERGER.......................45
6.1.20 NON-COMPETITION....................................45
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6.1.21 OTHER AGREEMENTS AND ACTIONS.......................45
6.2 ACCESS TO INFORMATION.....................................45
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6.3 FINANCIAL STATEMENTS......................................45
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6.4 NO SOLICITATION...........................................45
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6.5 CERTAIN CONSENTS..........................................48
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SECTION 7 - COVENANTS OF XXXXXX...............................................48
7.1 CONDUCT OF BUSINESS OF XXXXXX.............................48
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7.1.1 ORDINARY COURSE.....................................48
7.1.2 ORGANIZATIONAL DOCUMENTS............................48
7.1.3 SECURITIES..........................................48
7.1.4 DISTRIBUTIONS.......................................49
7.1.5 RELATIONSHIPS.......................................49
7.1.6 INDEBTEDNESS; GUARANTEES; LIENS.....................49
7.1.7 DISCHARGE OF LIABILITIES............................49
7.1.8 DISPOSITION OF ASSETS...............................49
7.1.9 ACQUISITIONS; MATERIAL AGREEMENTS...................49
7.1.10 ACCOUNTING PRACTICES; REVALUATION OF ASSETS........50
7.1.11 LIQUIDATION........................................50
7.1.12 TAX LIABILITIES....................................50
7.1.13 WAIVERS OF RIGHTS; PREPAYMENTS.....................50
7.1.14 INSURANCE..........................................50
7.1.15 LABOR AGREEMENTS...................................50
7.1.16 SETTLEMENTS........................................50
7.1.17 HINDRANCE OF TAX FREE MERGER.......................50
7.1.18 NON-COMPETITION....................................50
7.1.19 SEVERANCE; EMPLOYMENT AGREEMENTS...................51
7.1.20 COMPENSATION.......................................51
7.1.21 OTHER AGREEMENTS AND ACTIONS.......................51
7.2 ACCESS TO INFORMATION.....................................51
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7.3 FINANCIAL STATEMENTS......................................51
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7.4 LISTING OF STOCK..........................................51
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7.5 RULE 144 REPORTING........................................52
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7.6 AMENDMENT OF 401(K) PLAN..................................52
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SECTION 8 - ADDITIONAL AGREEMENTS.............................................52
8.1 SEC MATTERS...............................................52
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8.1.1 PREPARATION OF S-4 AND THE
JOINT PROXY STATEMENT/PROSPECTUS....................52
8.1.2 COMPLIANCE..........................................53
8.2 LETTER FROM ACCOUNTANTS...................................53
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8.3 MEETINGS OF STOCKHOLDERS..................................53
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8.3.1 TOTAL MEETING.......................................53
8.3.2 XXXXXX MEETING......................................53
8.4 REASONABLE BEST EFFORTS...................................54
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8.4.1 REASONABLE EFFORTS..................................54
8.4.2 LITIGATION..........................................54
8.4.3 FILINGS/CONSENTS....................................54
8.5 ANTITRUST MATTERS.........................................54
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8.5.1 COOPERATION.........................................54
8.5.2 PROCEEDINGS.........................................55
8.6 PUBLIC ANNOUNCEMENTS......................................55
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8.7 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE.......56
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8.7.1 ORGANIZATIONAL DOCUMENTS OF SURVIVING CORPORATION...56
8.7.2 INDEMNITY...........................................56
8.7.3 DIRECTOR'S AND OFFICER'S INSURANCE..................57
8.7.4 FINAL ORDERS........................................57
8.7.5 THIRD PARTY BENEFICIARIES...........................57
8.8 NOTIFICATION..............................................57
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8.9 AFFILIATES................................................58
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8.10 TAKEOVER STATUTES.........................................58
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8.11 TAX TREATMENT ............................................58
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8.12 INTEGRATION COMMITTEE.....................................58
----------------------
8.13 DIRECTOR RE-ELECTION......................................59
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8.14 EMPLOYEE BENEFITS.........................................59
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8.14.1 CONTINUATION OF BENEFITS...........................59
8.14.2 UNIFIED BENEFIT PROGRAM............................59
SECTION 9 - CONDITIONS TO CONSUMMATION OF THE MERGER..........................59
9.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO
EFFECT THE MERGER.........................................59
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9.1.1 CONSENTS OF STOCKHOLDERS............................59
9.1.2 NO RESTRAINT........................................59
9.1.3 CONSENTS............................................59
9.1.4 REGISTRATION........................................60
9.1.5 LISTING OF XXXXXX STOCK.............................60
9.2 CONDITIONS TO THE OBLIGATIONS OF XXXXXX...................60
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9.2.1 REPRESENTATIONS AND WARRANTIES......................60
9.2.2 PERFORMANCE.........................................60
9.2.3 OFFICER'S CERTIFICATE...............................61
9.2.4 CONSENTS............................................61
9.3 CONDITIONS TO THE OBLIGATIONS OF TOTAL....................61
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9.3.1 REPRESENTATIONS AND WARRANTIES......................61
9.3.2 PERFORMANCE.........................................61
9.3.3 OFFICER'S CERTIFICATE...............................61
9.3.4 CONSENTS............................................62
SECTION 10 - TERMINATION......................................................62
10.1 TERMINATION BY MUTUAL AGREEMENT...........................62
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10.2 TERMINATION BY EITHER XXXXXX OR TOTAL.....................62
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10.2.1 TERMINATION DATE...................................62
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10.2.2 REQUIRED TOTAL VOTE................................62
10.2.3 REQUIRED XXXXXX VOTE...............................62
10.2.4 LEGAL RESTRAINT....................................62
10.3 TERMINATION BY TOTAL......................................62
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10.3.1 XXXXXX BREACH......................................63
10.3.2 SUPERIOR TOTAL PROPOSAL............................63
10.3.3 WITHDRAWAL OF RECOMMENDATION.......................63
10.4 TERMINATION BY XXXXXX.....................................63
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10.4.1 TOTAL BREACH.......................................63
10.4.2 WITHDRAWAL OF RECOMMENDATION.......................63
10.5 EFFECT OF TERMINATION AND ABANDONMENT.....................63
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10.5.1 AGREEMENT TERMINATED...............................63
10.5.2 TERMINATION FEE....................................64
10.5.3 PAYMENT OF EXPENSES IN CONNECTION WITH
TOTAL BREACH.......................................64
10.5.4 PAYMENT OF EXPENSES IN CONNECTION WITH
XXXXXX BREACH......................................64
10.5.5 INTEGRAL PART OF AGREEMENT.........................64
10.5.6 CONFIDENTIALITY AGREEMENT. The Confidentiality
Agreement shall survive termination of this
Agreement in accordance with its terms.............65
SECTION 11 - MISCELLANEOUS....................................................65
11.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.............65
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11.2 CONFIDENTIALITY AGREEMENT.................................65
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11.3 ENTIRE AGREEMENT..........................................65
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11.4 EXPENSES..................................................65
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11.5 ASSIGNMENTS; SUCCESSORS; PARTIES IN INTEREST..............65
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11.6 AMENDMENT.................................................65
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11.6.1 WRITING REQUIRED...................................66
11.6.2 AMENDMENT AFTER STOCKHOLDER ACTION.................66
11.7 EXTENSION; WAIVER.........................................66
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11.8 NOTICES...................................................66
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11.9 GOVERNING LAW.............................................67
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11.10 DESCRIPTIVE HEADINGS......................................67
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11.11 SEVERABILITY..............................................67
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11.12 ENFORCEMENT; JURISDICTION.................................67
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11.13 JOINT WORK PRODUCT........................................67
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11.14 COUNTERPARTS..............................................68
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x
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of August 5, 2001 is by and
among XXXXXX INTERACTIVE INC., a Delaware corporation ("XXXXXX"), TOTAL MERGER
SUB INC., a Delaware corporation and a wholly-owned subsidiary of Xxxxxx
("MERGER SUB"), and TOTAL RESEARCH CORPORATION, a Delaware corporation
("TOTAL").
WHEREAS, the respective Boards of Directors of Xxxxxx, Merger Sub and
Total have each determined that this Agreement and the transactions contemplated
hereby, including the Merger, are advisable and fair to, and in the best
interests of, their respective stockholders;
WHEREAS, Xxxxxx, Merger Sub and Total intend, by approving resolutions
authorizing this Agreement, to adopt this Agreement as a plan of reorganization
within the meaning of Section 368(a) of the Code, and that the transactions
contemplated by this Agreement be undertaken pursuant to such plan;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, Xxxxxx, Merger Sub and Total hereby agree
as follows:
SECTION 1 - DEFINITIONS/INTERPRETATION
1.1 DEFINITIONS. The following terms shall have the following meanings
when used in this Agreement, and unless otherwise indicated therein, in any
certificate or other document delivered pursuant hereto.
1.1.1 "ANTITRUST LAW"means the Xxxxxxx Act, as amended, the
Xxxxxxx Act, as amended, Xxxx-Xxxxx, the Federal Trade Commission Act, as
amended, the EC Merger Regulation, and all others Laws that are designed or
intended to prohibit, restrict, or regulate actions having the purpose or effect
of monopolization or restraint of trade or lessening of competition through
merger or acquisition.
1.1.2 "APPROVALS"means filings, permits, authorizations,
consents and approvals as may be required under, and other applicable
requirements of, Nasdaq Marketplace Rules, the Securities Act, the Exchange Act,
state securities or "blue sky" Laws, applicable Antitrust Laws, and the filing
of the Certificate of Merger as required by the Corporation Law.
1.1.3 "ASSUMED STOCK OPTION" has the meaning given to it in
Section 3.3.
1.1.4 "BALANCE SHEET DATE" means the date of the latest
balance sheet included in a periodic report filed with the SEC by Total or
Xxxxxx, as the case may be, being for each of them March 31, 2001.
1.1.5 "BENEFICIAL " or "BENEFICIALLY," when used in the
context of ownership interests in any Person, shall have the meaning provided in
Section 13(d) of the Exchange Act.
1.1.6 "BENEFIT PLAN" means each employment, consulting,
severance pay, termination pay, retirement, deferred compensation, retention or
change in control plan, program,
1
arrangement, agreement or commitment, or an executive compensation, incentive
bonus or other bonus, pension, stock option, restricted stock or equity-based,
profit sharing, savings, life, health, disability, accident, medical, insurance,
vacation, or other employee benefit plan, program, arrangement, agreement, fund
or commitment, including any "employee benefit plan" as defined in Section 3(3)
of ERISA.
1.1.7 "BENEFITS CONTINUATION PROGRAM" has the meaning given to
it in Section 8.14.1.
1.1.8 "BOARD EXPANSION" has the meaning given to it in Section
2.5.
1.1.9 "CERTIFICATE OF MERGER" has the meaning given to it in
Section 2.2.
1.1.10 "CERTIFICATES" means a certificate or certificates
which immediately prior to the Effective Time represented outstanding Total
Shares.
1.1.11 "CLAIM" has the meaning given to it in Section 8.7.2.
1.1.12 "CLOSING" has the meaning given to it in Section 2.2.
1.1.13 "CLOSING DATE" has the meaning given to it in Section
2.2.
1.1.14 "CODE" means the Internal Revenue Code of 1986, as
amended.
1.1.15 "CONFIDENTIALITY AGREEMENT" means the non-disclosure
letter from Total addressed to Xxxxxx dated May 30, 2001, confirmed by Xxxxxx.
1.1.16 "CORPORATION LAW" means the Delaware General
Corporation Law.
1.1.17 "DOJ" means the Antitrust Division of the Department of
Justice.
1.1.18 "EFFECTIVE TIME" has the meaning given to it in Section
2.2.
1.1.19 "ENVIRONMENTAL CLAIM" means any notice, allegation,
accusation, complaint, inquiry, letter, notice of violation, claim, order,
decree, or demand under any Environmental Law.
1.1.20 "ENVIRONMENTAL LAWS" means all federal, state or local
law (including without limitation common law) statutes, regulations, rules,
judgments, orders or decrees relating to the environment, human health and
safety, and shall include without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act, the Hazardous Materials
Transportation Act, the Resource Conservation and Recovery Act, the Clean Water
Act, the Clean Air Act, the Toxic Substances Control Act, the Occupational
Safety and Health Act, and the regulations promulgated pursuant thereto, as all
such laws and regulations have been amended or supplemented, and all applicable
transfer statutes.
1.1.21 "ENVIRONMENTAL PERMIT" means all permits, licenses,
authorizations, variances, approvals and similar authorizations related to or
required by any Environmental Law.
2
1.1.22 "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
1.1.23 "ERISA AFFILIATE" means any trade or business, whether
or not incorporated, that together with any Person or any of the Person's
Subsidiaries would be deemed a "single employer" under Section 414 of the Code.
1.1.24 "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and regulations and rules issued pursuant to that Act.
1.1.25 "EXCHANGE AGENT" has the meaning given to it in Section
3.4.
1.1.26 "EXCHANGE DEPOSIT" has the meaning given to it in
Section 3.5.1.
1.1.27 "EXCHANGE RATIO" has the meaning given to it in Section
3.1.3.
1.1.28 "EXECUTIVE" means a director, officer, or any employee
who, as of the date of this Agreement, is within the top ten (10) most highly
compensated employees of a Person, in respect of such Person's last fiscal year,
taking into account all forms of such compensation including salary and bonus
payments.
1.1.29 "EXPANSION DIRECTORS" has the meaning given to it in
Section 2.5.
1.1.30 "EXPENSES" means all out-of-pocket expenses (including,
without limitation, all fees and expenses of counsel, accountants, investment
bankers, experts and consultants to a party hereto and its affiliates) incurred
by a party or on its behalf in connection with, or related to, the
authorization, preparation, negotiation, execution and performance of this
Agreement and the transactions contemplated hereby, including the preparation,
filing, printing and mailing of the Joint Proxy Statement/Prospectus and the S-4
and the solicitation of stockholder approvals and all other matters related to
the transactions contemplated hereby.
1.1.31 "FTC" means the Federal Trade Commission.
1.1.32 "GAAP" means United States generally accepted
accounting principles.
1.1.33 "GOVERNMENTAL ENTITY" means any supranational,
national, state, municipal or local court or tribunal or administrative,
governmental, quasi-governmental or regulatory body, agency or authority, or
similar body or entity.
1.1.34 "XXXXXX ACQUISITION AGREEMENT" has the meaning given to
it in Section 7.6(c).
1.1.35 "XXXXXX BENEFIT PLAN" means any Benefit Plan which
Xxxxxx or any of its Subsidiaries or ERISA Affiliates maintains or contributes
to, or has any obligation to contribute to, or with respect to which Xxxxxx or
any of its Subsidiaries has any liability, direct or indirect,
3
contingent or otherwise (including, without limitation, a liability arising out
of an indemnification, guarantee, hold harmless or similar agreement).
1.1.36 "XXXXXX BOARD" means the Board of Directors of Xxxxxx.
1.1.37 "XXXXXX DISCLOSURE SCHEDULE" means the Disclosure
Schedule delivered by Xxxxxx to Total prior to the execution of this Agreement,
cross-referenced to applicable sections of this Agreement.
1.1.38 "XXXXXX PERMITS" has the meaning given in Section
5.10.4.
1.1.39 "XXXXXX SEC DOCUMENTS" has the meaning given in Section
5.4.1.
1.1.40 "XXXXXX SHARE(S)" has the meaning given to it in
Section 3.1.3.
1.1.41 "XXXXXX STOCKHOLDERS MEETING" means the special meeting
of stockholders of Xxxxxx called for the purpose of approving the issuance of
the Xxxxxx common stock to the Total stockholders in the Merger.
1.1.42 "XXXXXX TERMINATION FEE" has the meaning given to it in
Section 10.5.3.
1.1.43 "XXXXXX TAKEOVER PROPOSAL" has the meaning given to it
in Section 7.6.
1.1.44 "XXXX-XXXXX" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
1.1.45 "INCENTIVE PLAN" means, collectively, the Harris Long
Term Incentive Plan and the Xxxxxx 1997 Stock Program.
1.1.46 "INDEMNIFIED PARTY" has the meaning given to it in
Section 8.7.2.
1.1.47 "INTEGRATION COMMITTEE" has the meaning given in
Section 8.12.
1.1.48 "INTELLECTUAL PROPERTY" means any and all United States
and foreign (i) patents and patent applications (including docketed patent
disclosures awaiting filing, reissues, divisions, continuations-in-part,
extensions, and improvements thereto), (ii) trademarks, service marks, trade
names, trade dress, brand names, logos, business and product names, slogans, and
registrations and applications for registration thereof, (iii) copyrights and
registrations thereof, (iv) technology, inventions, processes, methodologies,
designs, know-how, trade secrets, confidential and technical information,
specifications, software and databases, (v) licenses (whether the applicable
Person is licensor or licensee) of any Intellectual Property described in (i),
(ii), or (iii) which are Material Agreements, and (vi) any claims or causes of
action arising out of or relating to any infringement or misappropriation of any
of the foregoing.
1.1.49 "JOINT PROXY STATEMENT/PROSPECTUS" means the joint
proxy statement of Xxxxxx and Total and the prospectus of Xxxxxx, including any
amendments thereto, relating to (i) the Total Stockholders Meeting and the
Xxxxxx Stockholders Meeting to be held in connection
4
with the Merger and (ii) the issuance to the Total stockholders of the Xxxxxx
Shares included in the Merger Consideration.
1.1.50 "KNOW" or "KNOWLEDGE" means, with respect to any party,
the knowledge of such party's executive officers, including inquiry of other
officers or employees of such party having primary or substantial oversight
responsibility for the relevant matter.
1.1.51 "LAW" means any foreign or domestic law, order, writ,
injunction, decree, ordinance, award, stipulation, statute, judicial or
administrative doctrine, rule or regulation entered by a Governmental Entity.
1.1.52 "LIEN" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof), any sale with
recourse, any filing or agreement to file a financing statement as debtor under
the Uniform Commercial Code or any similar statute other than to reflect
ownership by a third party of property leased under a lease which is not in the
nature of a conditional sale or title retention agreement.
1.1.53 "MATERIAL ADVERSE EFFECT" means with respect to any
Person, any change, circumstance or effect that, individually or in the
aggregate with all other changes, circumstances and effects, is or is reasonably
likely to be materially adverse to (i) the assets, properties, condition
(financial or otherwise), goodwill, or results of operations of such Person and
its Subsidiaries taken as a whole, or (ii) the ability of such party to
consummate the transactions contemplated by this Agreement; provided, however,
that any changes, circumstances or effects resulting from or relating to (A) any
changes in economic, regulatory, or political conditions generally or in the
economic, legal or regulatory conditions that affect in general the businesses
in which such Person is engaged, (B) the United States securities markets, (C)
this Agreement or the transactions contemplated by this Agreement, or (D) the
effect of public announcement of the transactions contemplated hereby, including
any effect on employees, distributors or customers of such Person including, but
not limited to, the resignation of any of such Person's employees, distributors
or customers in response to the public announcement of the transactions
contemplated by this Agreement, shall not be taken into consideration in
determining whether a Material Adverse Effect has occurred or may occur with
respect to such Person.
1.1.54 "MATERIAL AGREEMENT" means any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which a Person or any of its Subsidiaries is a party or by which any of them
or any of their respective properties or assets may be bound (including all
amendments, modifications, waivers, supplements and side letters), in each case
the violation or breach of which, or defaults with respect to which, would or
would reasonably be expected to have, a Material Adverse Effect on such Person.
Material Agreements also include: (i) agreements that purport to limit, curtail
or restrict the ability of a Person to compete in any geographic area or line of
business, (ii) contracts or agreements with any Governmental Entity, (iii) loan
or credit agreements, mortgages, indentures or other agreements or instruments
evidencing indebtedness for borrowed money of at least $100,000 or any such
agreement pursuant to which such indebtedness for borrowed money may be
incurred, (iv) contracts, agreements, commitments or other understandings or
arrangements to which a Person or any of its Subsidiaries is a party or by which
any of them or any of their respective
5
properties or assets are bound or affected, which involve individual payments or
receipts by such Person or any of its Subsidiaries of at least $500,000 over the
terms of such contract, agreement, commitment, or other understanding or
arrangement, or if entered into in the ordinary and usual course of business
consistent with past practice, on an annual basis, (v) agreements or
arrangements, including but not limited to xxxxxx, options, swaps, caps and
collars, designed to protect such Person or any of its Subsidiaries against
fluctuations in interest rates, currency exchange rates, (vi) contracts or
agreements that would be required to be filed as an exhibit to a Form 10-K with
the SEC, and (vii) commitments and agreements to enter into any of the
foregoing.
1.1.55 "MERGER" has the meaning given to it in Section 2.1.
1.1.56 "MERGER CONSIDERATION" has the meaning given to it in
Section 3.1.3.
1.1.57 "MERGER SUB BOARD" means the Board of Directors of
Merger Sub.
1.1.58 "NASDAQ MARKETPLACE RULES" means the rules and
regulations applicable to companies listed on the National Markets System of
Nasdaq.
1.1.59 "NON-XXXXXX THIRD PARTY" has the meaning given to it in
Section 6.4.
1.1.60 "NON-TOTAL THIRD PARTY" has the meaning given to it in
Section 7.6.
1.1.61 "ORGANIZATIONAL DOCUMENTS" means (a) the articles or
certificate of incorporation and the bylaws of a corporation; (b) the
partnership agreement and any statement of partnership of a general partnership;
(c) the limited partnership agreement and the certificate of limited partnership
of a limited partnership; (d) the operating or limited liability company
agreement and the articles of organization of a limited liability company; (e)
any charter or similar document adopted or filed in connection with the
creation, formation, or organization of a Person; and (f) any amendment to any
of the foregoing.
1.1.62 "PERSON" means an individual, corporation, limited
liability company, partnership, association, trust, unincorporated organization,
other entity or group (as defined in the Exchange Act).
1.1.63 "REQUIRED XXXXXX VOTE" has the meaning given to it in
Section 5.3.4.
1.1.64 "REQUIRED XXXXXX VOTE TIME" has the meaning given to it
in Section 7.6.
1.1.65 "REQUIRED TOTAL VOTE" has the meaning given to it in
Section 4.3.4.
1.1.66 "REQUIRED TOTAL VOTE TIME" has the meaning given to it
in Section 6.4.
1.1.67 "S-4" means the registration statement on Form S-4 to
be filed with the SEC by Xxxxxx in connection with the issuance of Xxxxxx common
stock as required by the terms of this Agreement pursuant to the Merger.
1.1.68 "SEC" means the Securities and Exchange Commission.
6
1.1.69 "SECURITIES ACT" means the Securities Act of 1933, as
amended, and regulations and rules issued pursuant to that Act.
1.1.70 "STOCKHOLDER MEETINGS" has the meaning given to it in
Section 4.8.
1.1.71 "Stock Option" means (i) an option to purchase Total
common stock pursuant to the Stock Option Plan and (ii) the options set forth in
Section 1.1.71 of the Total Disclosure Schedule.
1.1.72 "Stock Option Plan" means the Total 1995 Stock
Incentive Plan.
1.1.73 "Subsidiary" means, when used with reference to any
Person, any corporation or other entity, whether incorporated or unincorporated,
(i) the outstanding voting securities or interests of which, 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 Person, is directly or
indirectly owned or controlled by such party or by any one or more of its
subsidiaries, or (ii) over which such Person or any other subsidiary of such
Person exercises management control, including without limitation by virtue of
being a general or managing partner.
1.1.74 "Superior Xxxxxx Proposal" has the meaning given to it
in Section 7.6.
1.1.75 "Superior Total Proposal" has the meaning given to it
in Section 6.4.
1.1.76 "Surviving Corporation", as provided in Section 2.1,
shall mean Total.
1.1.77 "Tax" or "Taxes" means any tax (including any income
tax, capital gains tax, value-added tax, sales tax, property tax, gift tax, or
estate tax), levy, assessment, tariff, duty (including any customs duty),
deficiency, or other fee, and any related charge or amount (including any fine,
penalty, interest, or addition to tax), imposed, assessed, or collected by or
under the authority of any Governmental Entity.
1.1.78 "Tax Returns" means any return (including any
information return), report, statement, schedule, notice, form, or other
document filed with or submitted to, or required to be filed with or submitted
to, any Governmental Entity in connection with the determination, assessment,
collection, or payment of any Tax or in connection with the administration,
implementation, or enforcement of or compliance with any Law relating to any
Tax.
1.1.79 "Termination Date" means January 31, 2002.
1.1.80 "Total Acquisition Agreement" has the meaning given to
it in Section 6.4(c).
1.1.81 "Total Alternative Transaction" has the meaning given
to it in Section 6.4.
1.1.82 "Total Benefit Plan" means any Benefit Plan which Total
or any of its Subsidiaries or ERISA Affiliates maintains or contributes to, or
has any obligation to contribute
7
to, or with respect to which Total or any of its Subsidiaries has any liability,
direct or indirect, contingent or otherwise (including, without limitation, a
liability arising out of an indemnification, guarantee, hold harmless or similar
agreement).
1.1.83 "Total Board" means the Board of Directors of Total.
1.1.84 "Total Disclosure Schedule" means the Disclosure
Schedule delivered by Total to Xxxxxx prior to the execution of this Agreement,
cross-referenced to applicable sections of this Agreement.
1.1.85 "Total Employee" has the meaning given to it in Section
8.14.1.
1.1.86 "Total Permits" has the meaning given in Section
4.10.5.
1.1.87 "Total SEC Documents" has the meaning given in Section
4.4.1.
1.1.88 "Total Share(s)" has the meaning given in Section
3.1.3.
1.1.89 "Total Stockholders Meeting" means the special meeting
of stockholders of Total called for the purpose of voting on the approval of the
Merger pursuant to Section 251 of the Corporation Law as described in Section
8.3.1 hereof.
1.1.90 "Total Takeover Proposal" has the meaning given to it
in Section 6.4.
1.1.91 "Total Termination Fee" has the meaning given in
Section 10.5.2.
1.2 INTERPRETATION.
1.2.1 USE OF CERTAIN WORDS. The words "hereof," "herein" and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
1.2.2 APPLICABILITY OF DEFINITIONS. The definitions contained
in this Agreement are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter genders of
such terms.
1.2.3 REFERENCES TO OTHER MATERIALS. Any agreement, instrument
or statute defined or referred to herein or in any agreement or instrument that
is referred to herein means such agreement, instrument or statute as from time
to time, amended, qualified or supplemented, including (in the case of
agreements and instruments) by waiver or consent and (in the case of statutes)
by succession of comparable successor statutes and all attachments thereto and
instruments incorporated therein.
8
1.2.4 REFERENCES TO PERSONS. References to a Person are also
to its permitted successors and assigns.
1.2.5 REFERENCES TO MADE AVAILABLE. The phrase "made
available" in this Agreement shall mean that the information referred to has
been actually delivered to the party to whom such information is to be made
available.
SECTION 2 - THE MERGER
2.1 THE MERGER. At the Effective Time, upon the terms and subject to
the conditions of this Agreement and in accordance with the Corporation Law,
Merger Sub shall be merged with and into Total (the "Merger"). Following the
Merger, Total shall continue as the surviving corporation (the "Surviving
Corporation") and the separate corporate existence of Merger Sub shall cease.
2.2 CLOSING OF THE MERGER. The closing of the Merger (the "Closing")
will take place at a time and on a date (the "Closing Date") mutually agreeable
to the parties, which shall be no later than the second business day after
satisfaction or waiver of the conditions set forth in Section 9 (other than
those conditions that by their nature are to be satisfied at the Closing, but
subject to the fulfillment or waiver of those conditions), at the offices of
Xxxxxx Beach LLP, 000 X. Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, unless another
time, date or place is agreed to in writing by the parties hereto.
Subject to the conditions of this Agreement, the parties shall cause
the Merger to be consummated by filing a certificate of merger complying with
the Corporation Law with the Secretary of State of the State of Delaware (the
"Certificate of Merger"), as soon as practicable on or after the Closing Date.
The Merger shall become effective upon such filing or at such time thereafter as
the parties shall agree and as shall be provided in the Certificate of Merger
(the "Effective Time").
2.3 EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in the Corporation Law including Section 259 thereof. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all the
rights, powers, privileges, immunities, properties and franchises of Total shall
remain vested in Total as the Surviving Corporation, and all liabilities,
obligations, debts, and duties of Merger Sub shall become the liabilities,
obligations, debts, and duties of the Surviving Corporation.
2.4 ORGANIZATIONAL DOCUMENTS. Subject to Section 8.7.1, the Certificate
of Incorporation and the By-laws of Merger Sub in effect immediately prior to
the Effective Time shall be the Organizational Documents of the Surviving
Corporation unless and until amended in accordance with such Organizational
Documents and the Corporation Law.
2.5 DIRECTORS. At the Effective Time, the Xxxxxx Board shall be
expanded by three members (the "Expansion Directors"), which positions will be
filled by Xxxxx Xxxxxxx, as a class I director, Xxxxxx X. Xxxxxxx as a class II
director, and Xxxxxx X. Xxxxxxxxx, as a class III director (the "Board
Expansion"). At the Effective Time, the directors of Merger Sub immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation. Immediately following the Effective Time, Xxxxxx shall take all
action necessary so
9
that the composition of the board of directors of the Surviving Corporation
shall be identical to the composition of the Xxxxxx Board, including the
Expansion Directors. Each director of Xxxxxx and the Surviving Corporation shall
hold office in accordance with the Organizational Documents of Xxxxxx and the
Surviving Corporation, respectively, until the director's respective death,
resignation, or removal or until the director's respective successor is duly
elected and qualified.
2.6 FURTHER ASSURANCES; POWER OF ATTORNEY.
2.6.1 FURTHER ACTIONS. If at any time the Surviving
Corporation shall consider or be advised that any further assignment or
assurances or any other documents are reasonably necessary or desirable to vest
in the Surviving Corporation, according to the terms of this Agreement, the
title of any property or rights of Total, at the direction of the Surviving
Corporation, the last acting officers and directors of Total (without any cost
or expense to them), or the corresponding officers and directors of the
Surviving Corporation, will execute and make all such proper assignments and
assurances and do all things necessary or proper and reasonably within their
power and authority to vest title in such property or rights in the Surviving
Corporation. No failure by any officer or director to comply with the provisions
of this Section 2.6 shall have any effect on the validity of the Merger.
2.6.2 POWER OF ATTORNEY. If at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any further
deeds, assignments or assurances in law or any other acts are necessary or
desirable to (i) 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 Total, or (ii) otherwise carry out the purposes
of this Agreement, Total and its officers and directors shall be deemed to have
granted to the Surviving Corporation an irrevocable power of attorney to execute
and deliver all such deeds, assignments or assurances in law or any other acts
as are necessary or proper to vest, perfect or confirm title to and possession
of such rights, properties or assets in the Surviving Corporation and otherwise
to carry out the purposes of this Agreement and the Merger, and the officers and
directors of the Surviving Corporation are authorized in the name of Total or
otherwise to take any and all such action.
SECTION 3 - CONVERSION OF SECURITIES
3.1 CONVERSION OF SECURITIES. At the Effective Time, by virtue of the
Merger and without any action on the part of any of the parties hereto or any
holder of any securities of Total or Merger Sub:
3.1.1 SECURITIES OF MERGER SUB. The issued and outstanding
securities of Merger Sub immediately prior to the Effective Time shall be
converted into and become one validly issued, fully paid and nonassessable share
of common stock, par value $.01 per share, of the Surviving Corporation.
3.1.2 CANCELLATION OF SHARES OF TOTAL HELD IN TREASURY AND
XXXXXX-OWNED SHARES. Each share of Total common stock issued and outstanding
immediately prior to the Effective Time that is owned by Total, Xxxxxx or Merger
Sub or any of their respective wholly owned Subsidiaries (other than shares in
trust accounts, managed accounts, custodial accounts
10
and the like that are beneficially owned by third parties) shall automatically
be cancelled and shall cease to exist, and no consideration shall be delivered
or deliverable in exchange therefor.
3.1.3 CONVERSION OF TOTAL COMMON STOCK. Each share of Total
common stock issued and outstanding immediately prior to the Effective Time,
excluding the shares to be cancelled in accordance with Section 3.1.2,
(individually, a "Total Share" and collectively, the "Total Shares") shall be
converted into and be exchangeable for the right to receive 1.222 (the "Exchange
Ratio") of fully paid and non-assessable shares of Xxxxxx common stock, par
value $.001 per share (individually, a "Xxxxxx Share" and collectively, the
"Xxxxxx Shares"). All Xxxxxx Shares issued pursuant to this Section 3.1.3,
together with any cash in lieu of fractional Xxxxxx Shares to be paid pursuant
to Section 3.2, are referred to herein as (the "Merger Consideration").
3.1.4 ADJUSTMENTS TO EXCHANGE RATIO. If between the date of
this Agreement and the Effective Time the outstanding Xxxxxx Shares shall have
been changed into a different number of shares or a different class by reason of
any stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares or any similar event, the amount of Xxxxxx
Shares constituting the Exchange Ratio shall be correspondingly adjusted to
reflect such stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares or such similar event.
3.2 FRACTIONAL SHARES OF XXXXXX COMMON STOCK.
3.2.1 NO FRACTIONAL INTERESTS. No certificates, scrip, book
entry credit, or other evidence of shares of Xxxxxx common stock representing
fractional shares shall be issued upon the surrender for exchange of
Certificates and such fractional share interests will not entitle the owner
thereof to vote or to have any rights of a holder of shares of Xxxxxx common
stock.
3.2.2 CASH PAYMENT FOR FRACTIONAL INTERESTS. Notwithstanding
any other provision of this Agreement, each holder of Total Shares exchanged
pursuant to the Merger who would otherwise have been entitled to receive a
fraction of a share of Xxxxxx common stock (after taking into account all
Certificates delivered by such holder) shall receive, in lieu thereof, cash
(without interest) in an amount equal to the product of (i) such fractional part
of a Xxxxxx Share multiplied by (ii) the closing price (as reported by Bloomberg
Financial Markets, or if not reported thereby, another nationally recognized
source acceptable to both Xxxxxx and Total) for a share of Xxxxxx common stock
on the date of the Effective Time. As promptly as practicable after the
determination of the aggregate amount of cash to be paid to holders of
fractional interests, the Exchange Agent (as defined below) shall notify Xxxxxx
and Xxxxxx shall deposit such amount with the Exchange Agent and shall cause the
Exchange Agent to forward payments to such holders of fractional interests
subject to and in accordance with the terms hereof.
3.3 STOCK OPTIONS.
3.3.1 EXCHANGE OF OPTIONS. As soon as practicable following
the date of this Agreement, Xxxxxx and Total (or, if appropriate, the Total
Board or any committee of the Total Board administering the Stock Option Plan)
shall take such action as may be required or desirable, and shall obtain all
applicable consents, to effect the following provisions of this Section 3.3. As
of the Effective Time, each Stock Option which is then outstanding shall be
11
fully vested, and each such outstanding Stock Option shall be converted into an
option (or a new substitute option shall be granted) (an "Assumed Stock Option")
to purchase the number of shares of Xxxxxx common stock (rounded up to the
nearest whole share) equal to (i) the number of shares of Total common stock
subject to such option multiplied by (ii) the Exchange Ratio, at an exercise
price per share of Xxxxxx common stock (rounded down to the nearest xxxxx) equal
to (A) the former exercise price per share of Total common stock under such
option immediately prior to the Effective Time divided by (B) the Exchange
Ratio; provided, however, that in the case of any Stock Option described in
Section 422 of the Code, the conversion formula shall be adjusted, if necessary,
to comply with Section 424(a) of the Code. Except as provided above or as may be
provided in the agreement evidencing the grant of a Stock Option (including any
amendments thereto), each Assumed Stock Option shall be subject to the same
terms and conditions (including expiration date and exercise provisions) as were
applicable to the corresponding Stock Option immediately prior to the Effective
Time; provided, that Total and Xxxxxx shall each take all necessary action so
that the Xxxxxx Board or a committee thereof shall succeed to the authority and
responsibility of the Total Board or any committee thereof.
3.3.2 NOTICES. As soon as practicable after the Effective
Time, Xxxxxx shall deliver to the holders of Stock Options appropriate notices
setting forth such holders' rights pursuant to the respective Stock Option Plan
and the agreements evidencing the grants of Stock Options and that such Stock
Options and agreements shall continue in effect on the same terms and conditions
(subject to the adjustments required by this Section 3.3). Xxxxxx shall comply
with the terms of the Stock Option Plan and the agreements evidencing the Stock
Options.
3.3.3 XXXXXX ACTIONS. Xxxxxx shall take such actions as are
reasonably necessary for the conversion of the Stock Options pursuant to this
Section 3.3, including the reservation, issuance and listing of Xxxxxx common
stock as is necessary to effectuate the transactions contemplated by this
Section 3.3. Xxxxxx shall prepare and file with the SEC a registration statement
on Form S-8 or other appropriate form, to become effective as of, or within
three business days following the Effective Time, with respect to shares of
Xxxxxx common stock subject to the Assumed Stock Options, and shall maintain the
effectiveness of such registration statement(s) covering such Assumed Stock
Options for so long as such Assumed Stock Options remain outstanding.
3.4 EXCHANGE AGENT. Prior to the Effective Time, Xxxxxx shall appoint a
commercial bank or trust company reasonably acceptable to Total to act as
exchange agent hereunder for the purpose of exchanging Total Shares for the
Merger Consideration (the "Exchange Agent").
3.5 EXCHANGE DEPOSIT.
3.5.1 DEPOSIT WITH EXCHANGE AGENT. At or prior to the
Effective Time, Xxxxxx shall deposit, or cause to be deposited, with the
Exchange Agent, in trust for the benefit of holders of Total Shares,
certificates representing the Xxxxxx Shares to be issued pursuant to Section
3.1.3 in exchange for outstanding Total Shares. Xxxxxx shall make such deposits
with the Exchange Agent as are sufficient from time to time to pay cash in lieu
of fractional shares pursuant to Section 3.2.2 and dividends and other
distributions, if any, pursuant to Section 3.7.3. Any cash and certificates of
Xxxxxx common stock deposited with the Exchange Agent pursuant to this Section
3.5.1 shall hereinafter be referred to as (the "Exchange Deposit").
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3.5.2 TERMINATION OF EXCHANGE DEPOSIT. One year after the
Effective Time, the Exchange Agent shall deliver to Xxxxxx, or otherwise on the
instruction of Xxxxxx, any portion of the Exchange Deposit, together with any
income or proceeds thereof or of any investments thereof, which remains
undistributed to the holders of Certificates.
3.5.3 NO LIABILITY. None of Xxxxxx, Total, Merger Sub, the
Surviving Corporation or the Exchange Agent shall be liable to any person in
respect of any Merger Consideration from the Exchange Deposit delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar Law.
3.5.4 INVESTMENT OF THE EXCHANGE DEPOSIT. The Exchange Agent
shall invest any cash included in the Exchange Deposit as directed by Xxxxxx on
a daily basis. Any interest and other income resulting from such investments
shall promptly be paid to Xxxxxx.
3.6 EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail
to each holder of a Certificate or Certificates instructions for effecting the
surrender of such Certificates in exchange for the applicable Merger
Consideration, including a customary form of letter of transmittal with such
other provisions as Xxxxxx may reasonably specify (including that delivery shall
be effective, and risk of loss and title to the Certificates shall pass, only
upon delivery of the Certificates to the Exchange Agent). Upon delivery of a
Certificate to the Exchange Agent together with such letter of transmittal, duly
executed and completed in accordance with the instructions thereto, and such
other documents as may reasonably be required by the Exchange Agent, the holder
of such Certificate shall be entitled to receive in exchange therefor with
respect to the Total Shares represented by the Certificate (i) Xxxxxx Shares
representing, in the aggregate, the whole number of shares that such holder has
the right to receive pursuant to Section 3.1.3 and (ii) a check in the amount
equal to the cash that such holder has the right to receive pursuant to Section
3.2.2 and Section 3.7.3. In the event of a transfer of ownership of any Total
Shares which are not registered in the transfer records of Total, Xxxxxx Shares
evidencing, in the aggregate, the proper number of shares of Xxxxxx common stock
deliverable under Section 3.1.3, and a check in the proper amount of cash
payable under Section 3.2.2 and Section 3.7.3, may be issued with respect to
such Total Shares to such a transferee if the Certificate representing such
Total Shares is presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer Taxes have been paid. Total Shares held at the
Effective Time in book-entry form shall be exchanged for Merger Consideration in
accordance with the customary procedures of the Depository Trust Company.
3.7 SHARE OWNERSHIP RIGHTS AFTER EFFECTIVE TIME.
3.7.1 STOCK TRANSFER BOOKS. The stock transfer books of Total
shall be closed immediately upon the Effective Time and there shall be no
further registration of transfers of Total Shares thereafter on the records of
Total. On or after the Effective Time, any Certificates presented to the
Exchange Agent or the Surviving Corporation for any reason, subject to the terms
and conditions of this Agreement, shall be converted into the Merger
Consideration with respect to the Total Shares formerly represented thereby, any
cash in lieu of fractional Xxxxxx
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Shares to which the holders thereof are entitled pursuant to Section 3.2.2, and
any dividends or other distributions to which the holders thereof are entitled
pursuant to Section 3.7.3.
3.7.2 FULL SATISFACTION. As of the Effective Time, holders of
the Total Shares shall have no further rights with respect thereto except for
rights to Xxxxxx common stock and cash as provided for in this Section 3, and
all Xxxxxx Shares issued and cash paid upon conversion of the Total Shares in
accordance with the terms of this Section 3 shall be deemed to have been issued
or paid in full satisfaction of all rights pertaining to the Total Shares.
3.7.3 PAYMENTS WITH RESPECT TO UNSURRENDERED CERTIFICATES.
Until the holder of any unsurrendered Certificate shall surrender such
Certificate in accordance with Section 3.6, such holder shall not be entitled to
be paid (i) dividends or other distributions, declared or made with respect to
Xxxxxx Shares with a record date after the Effective Time, that such holder
would be entitled to receive upon surrender of such Certificate, and (ii) any
cash payment in lieu of fractional Xxxxxx Shares that would be paid upon
surrender of the Certificate pursuant to Section 3.2.2. Subject to the effect of
applicable Laws, following surrender of any such Certificate there shall be paid
to such holder, without interest, (i) the amount of any cash payable in lieu of
fractional Xxxxxx Shares to which such holder is entitled pursuant to Section
3.2.2, and (ii) with respect to the whole number of Xxxxxx Shares delivered in
exchange for such surrendered Certificate, any dividends or other distributions
applicable to such shares with a record date after the Effective Time, the
amount of such dividends or other distributions to be paid promptly after the
later of the time of such surrender and the payment date for such dividends or
other distributions.
3.7.4 RIGHTS OF HOLDERS AFTER TERMINATION OF DEPOSIT. Upon
termination of the Exchange Deposit pursuant to Section 3.5.2, any holders of
the Certificates who have not theretofore complied with the exchange procedures
set forth in this Section 3 shall thereafter look only to the Surviving
Corporation (subject to abandoned property, escheat and similar laws) for the
Merger Consideration exchangeable for such Certificates to which such holders
are entitled, any cash in lieu of fractional Xxxxxx Shares to which such holders
are entitled pursuant to Section 3.2.2, and any dividends or distributions with
respect to Xxxxxx Shares to which such holders are entitled pursuant to Section
3.7.3. Such holders shall not be entitled to interest on any amounts to which
they may otherwise be entitled. Any Xxxxxx Shares, cash in lieu of fractional
shares, or dividends or distributions with respect to Xxxxxx Shares which any
holder of a Certificate would otherwise be entitled under Sections 3.1.3, 3.2.2,
and 3.7.3 respectively remaining unclaimed by holders of Total Shares on such
date as shall be immediately prior to such date as such securities or amounts
would otherwise escheat to or become property of any Governmental Entity shall,
to the extent permitted by Law, become the property of Xxxxxx, free and clear of
any claims or interest of any person previously entitled thereto.
3.8 LOST CERTIFICATES. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such person of an indemnity bond in
such reasonable amount as the Surviving Corporation may direct, the Exchange
Agent will deliver in exchange for such lost, stolen or destroyed Certificate
the applicable Merger Consideration with respect to the Total Shares formerly
represented thereby,
14
and any unpaid dividends and distributions on Xxxxxx Shares deliverable in
respect thereof, pursuant to this Agreement.
3.9 WITHHOLDING RIGHTS. The Surviving Corporation shall be
entitled to deduct and withhold from the Merger Consideration otherwise payable
pursuant to this Agreement to any holder of Total Shares such amounts as it is
required to deduct and withhold with respect to the making of such payment under
the Code and the rules and regulations promulgated thereunder, or any other Law.
To the extent that amounts are so withheld by the Surviving Corporation, such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the holder of the Total Shares in respect to which such deduction
and withholding was made by the Surviving Corporation.
3.10 AFFILIATES. Notwithstanding anything to the contrary
herein, no Xxxxxx Shares or cash shall be delivered to a person who may be
deemed an "affiliate" of Total in accordance with Section 8.9 hereof for
purposes of Rule 145 under the Securities Act and the applicable SEC rules and
regulations until such person has executed and delivered to Xxxxxx the written
agreement contemplated by Section 8.9.
3.11 SECTION 16. Prior to the Effective Time, the Xxxxxx Board
shall take all necessary action to cause the receipt of the Merger Consideration
and/or the Assumed Stock Options by any Person who, as of the Effective Time,
may be subject to Section 16 of the Exchange Act with respect to Xxxxxx, to be
exempt acquisitions for purposes of such Section 16.
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF TOTAL
Total hereby represents and warrants to Xxxxxx and Merger Sub as follows:
4.1 CAPITALIZATION OF TOTAL AND ITS SUBSIDIARIES.
4.1.1 CAPITALIZATION OF TOTAL. The authorized capital stock of
Total consists of 50,000,000 shares of common stock, of which 13,528,657 shares
were issued and outstanding as ofAugust 3, 2001, and 55,164 shares of such
common stock were issued and held in the treasury of Total. In addition,
2,280,100 shares of Total common stock were subject to outstanding options
issued pursuant to the Stock Option Plan, 200,000 shares of Total common stock
were subject to outstanding options that were not issued pursuant to the Stock
Option Plan, and options with respect to an additional 315,110 shares of Total
common stock were authorized but not yet issued under the Stock Option Plan. All
the outstanding Total Shares are, and the shares of Total to be issued upon the
exercise of outstanding options described in this Section 4.1.1 will be, when
issued in accordance with the terms thereof, duly authorized, validly issued,
fully paid and non-assessable. Except as set forth above, for changes therefrom
resulting from the exercise or termination of Stock Options, and for the
transactions contemplated by this Agreement, (i) there are no shares of capital
stock of Total authorized, issued or outstanding, (ii) there are no authorized
or outstanding options, warrants, calls, preemptive rights, subscriptions or
other rights, agreements, arrangements or commitments of any character (whether
or not conditional) relating to the issued or unissued capital stock of Total
obligating Total to issue, transfer or sell or cause to be issued, transferred
or sold any shares of capital stock or other equity interest in Total or
securities convertible into or exchangeable for such shares or equity interests,
or
15
obligating Total to grant, extend or enter into any such option, warrant, call,
subscription or other right, agreement, arrangement or commitment, and (iii)
there are no outstanding contractual obligations of Total to repurchase, redeem
or otherwise acquire any shares or other capital stock of Total, or to make any
payments based on the market price or value of shares or other capital stock of
Total, or to provide funds to make any investment (in the form of a loan,
capital contribution or otherwise) in any Subsidiary or any other entity other
than loans to Subsidiaries in the ordinary and usual course of business
consistent with past practice.
4.1.2 CAPITALIZATION OF SUBSIDIARIES. The authorized capital
stock of each Subsidiary of Total is disclosed in Section 4.1.2 of the Total
Disclosure Schedule, including (i) the types of authorized shares, (ii) number
of shares issued and outstanding as of August 3, 2001, (iii) number of shares
issued and held in the treasury of any such Subsidiary, and (iv) a listing of
the holders of all outstanding shares together with the number of shares owned
by each. There are no authorized or outstanding options, warrants, calls,
preemptive rights, subscriptions or other rights, agreements, arrangements or
commitments of any character (whether or not conditional) relating to the issued
or unissued capital stock of any Subsidiary of Total obligating Total or such
Subsidiary to issue, transfer or sell or cause to be issued, transferred or sold
any shares of capital stock or other equity interest in such Subsidiary or
securities convertible into or exchangeable for such shares or equity interests,
or obligating such Subsidiary or Total to grant, extend or enter into any such
option, warrant, call, subscription or other right, agreement, arrangement or
commitment. There are no outstanding contractual obligations of any Subsidiary
of Total or Total to repurchase, redeem or otherwise acquire any shares or other
capital stock of any Subsidiary of Total, or to make any payments based on the
market price or value of shares or other capital stock of any Subsidiary of
Total, or to provide funds to make any investment (in the form of a loan,
capital contribution or otherwise) in any Subsidiary or any other entity other
than loans to Subsidiaries in the ordinary and usual course of business
consistent with past practice. All of the outstanding shares of each Subsidiary
of Total are duly authorized, validly issued, fully paid and non-assessable.
4.1.3 NO LIENS ON INTERESTS IN SUBSIDIARIES. Except as set
forth in Section 4.1.3 of the Total Disclosure Schedule, all of the outstanding
capital stock of each Subsidiary of Total is owned by Total, directly or
indirectly, free and clear of any Lien or any other limitation or restriction
(including any restriction on the right to vote or sell the same, except as may
be provided as a matter of Law), and there are no irrevocable proxies with
respect to such capital stock.
4.2 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
4.2.1 EXISTENCE, POWER, AND QUALIFICATION. Each of Total and
its Subsidiaries (i) is a corporation or legal entity duly organized, validly
existing and in good standing (to the extent the concept of good standing exists
in the applicable jurisdiction) under the Laws of the jurisdiction of its
incorporation and (ii) has all requisite corporate or similar power and
authority to own, lease and operate its properties and to carry on its
businesses as now conducted and proposed by Total to be conducted, except when
the failure to be duly organized, validly existing and in good standing or to
have such power and authority has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on Total.
Each of Total and its Subsidiaries is duly qualified or licensed and in good
standing to do business in
16
each jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in
good standing has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Total.
4.2.2 SUBSIDIARIES. Section 4.2.2 of the Total Disclosure
Schedule sets forth a list of all Subsidiaries of Total, and except as set forth
therein Total does not own, directly or indirectly, beneficially or of record,
any shares of capital stock or other security of any other Person or any other
investment in any other Person.
4.2.3 COPIES OF DOCUMENTS. Total has heretofore made available
to Xxxxxx or representatives of Xxxxxx (i) accurate and complete copies of the
Organizational Documents, as currently in effect, of each of Total and its
Subsidiaries, and (ii) accurate and complete copies of all minutes of
proceedings of the Total Board and those of its Subsidiaries and of the other
committees of the Total Board and its Subsidiaries (except for the executive
committee of the Total Board). The executive committee of the Total Board has
not kept minutes of its proceedings.
4.3 AUTHORITY RELATIVE TO THIS AGREEMENT.
4.3.1 POWER. Total has all necessary corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and thereby.
4.3.2 CORPORATE PROCEEDINGS; ENFORCEABILITY. The Total Board,
by unanimous vote at a meeting duly called and held, has (i) duly and validly
authorized the execution, delivery and performance of this Agreement, (ii)
approved the consummation of the transactions contemplated hereby, including the
Merger (within the meaning of Section 251 of the Corporation Law) contained
within this Agreement, and (iii) taken all corporate actions required to be
taken by the Total Board for the consummation of the transactions contemplated
hereby. The Total Board has determined that such transactions are advisable and
fair to, and in the best interests of, Total and its stockholders. No other
corporate proceedings on the part of Total are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby other than as
described in Section 4.3.4.
4.3.3 ENFORCEABILITY. This Agreement has been duly and validly
executed and delivered by Total and, assuming the due authorization, execution
and delivery by Xxxxxx and Merger Sub, constitutes a valid, legal and binding
agreement of Total, enforceable against Total in accordance with its terms.
4.3.4 STOCKHOLDER ACTION. The Total Board has, as of the date
hereof, resolved to recommend that the stockholders of Total adopt this
Agreement and has directed that this Agreement of merger be submitted to the
stockholders of Total for their adoption at a meeting to be held for that
purpose. The affirmative vote of the holders of a majority of the outstanding
common stock of Total as of the record date for the Total Stockholders Meeting
(the "Required Total Vote") is the only vote of the holders of any class or
series of capital stock of Total
17
necessary to adopt this Agreement, and is the only vote of such holders required
by Law, the Organizational Documents of Total, or otherwise to consummate the
transactions contemplated hereby.
4.4 FILINGS WITH SEC; FINANCIAL STATEMENTS.
4.4.1 SEC FILINGS. Except as set forth in Section 4.4.1 of the
Total Disclosure Schedule, Total has filed all required reports, schedules,
forms, statements and other documents with the SEC since July 1, 1998 (such
documents, together with any documents filed during such period by Total with
the SEC on a voluntary basis, the "Total SEC Documents"). As of their respective
dates, the Total SEC Documents (i) complied in all material respects with the
applicable requirements of the Securities Act or the Exchange Act, as the case
may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such Total SEC Documents and (ii) did not at the time they were
filed (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.4.2 TOTAL FINANCIAL STATEMENTS. The financial statements of
Total included in the Total SEC Documents comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in accordance
with GAAP (except, in the case of unaudited statements, as permitted by Form
10-Q of the SEC) applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto) and fairly present the
consolidated financial position of Total and its consolidated Subsidiaries as of
the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments that do not reflect a Material Adverse
Effect).
4.5 NO UNDISCLOSED LIABILITIES. Except as included in the Total SEC
Documents filed prior to the date hereof, and except for such liabilities and
obligations that have not had, and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Total, neither
Total nor any of its Subsidiaries has any liabilities, whether or not accrued or
contingent, and whether or not required to be recorded or reflected on a balance
sheet under GAAP, and there is no condition, as of the date hereof, situation or
set of circumstances that could reasonably be expected to result in such a
liability or obligation.
4.6 MATERIAL AGREEMENTS. Section 4.6 of the Total Disclosure Schedule
sets forth each Material Agreement with a customer or supplier of Total and its
Subsidiaries which involve payments or receipts by such Person or any of its
Subsidiaries of at least $500,000 over the term of each such Material Agreement.
Each Material Agreement of Total constitutes a valid and legally binding
obligation of Total or its Subsidiaries, and to the knowledge of Total and its
Subsidiaries, a valid and legally binding obligation of each other party
thereto, enforceable in accordance with its terms (except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other Laws of general applicability relating to or
affecting creditors' rights or by general equity principles), and is in full
force and effect, in each case except for such failures that have not had, and
would not be
18
reasonably expected to have, a Material Adverse Effect on Total. There is no
default under any Material Agreement either by Total or its Subsidiaries or, to
Total or its Subsidiaries' knowledge, by any other party thereto, and no event
has occurred that with the lapse of time or the giving of notice or both would
constitute a default thereunder by Total or its Subsidiaries or, to Total or its
Subsidiaries' knowledge, any other party, in each case except as has not had,
and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on Total. No party to any such Material Agreement has
given notice to Total or its Subsidiaries of or made a claim against Total or
its Subsidiaries with respect to any breach or default thereunder, in each case
except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Total.
4.7 ABSENCE OF CHANGES. Except as and to the extent disclosed in the
Total SEC Documents filed prior to the date hereof and as set forth in Section
4.7 of the Total Disclosure Schedule, since the Balance Sheet Date, Total and
its Subsidiaries have conducted their business in the ordinary and usual course
consistent with past practice and there has not been:
4.7.1 MATERIAL ADVERSE DEVELOPMENTS. Any event, occurrence or
development (including, for the purpose of clarity, any audit adjustment
covering unaudited periods in fiscal 2001 prior to the Balance Sheet Date) which
has had, or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Total;
4.7.2 DISTRIBUTIONS. Any declaration, setting aside or payment
of any dividend or other distribution with respect to any shares of capital
stock of Total, or any repurchase, redemption or other acquisition by Total or
any Subsidiary of any securities of Total or of any of its Subsidiaries;
4.7.3 AMENDMENTS. Any amendment of (or agreement to amend) any
term of any outstanding equity securities of Total or any Subsidiary;
4.7.4 DEBT AND GUARANTEES. (i) Any incurrence or assumption
(or agreement to incur or assume) by Total or any Subsidiary of any indebtedness
for borrowed money other than in the ordinary and usual course of business
consistent with past practice or (ii) any guarantee, endorsement or other
incurrence or assumption of (or agreement to guarantee, endorse, incur or
assume) any material liability (whether directly, contingently or otherwise) by
Total or any Subsidiary for the obligations of any other Person (other than any
Subsidiary of Total), other than in the ordinary and usual course of business
consistent with past practice;
4.7.5 LIENS. Any creation or assumption by Total or any
Subsidiary of any Lien on any material asset of Total or any Subsidiary other
than in the ordinary and usual course of business consistent with past practice;
4.7.6 LOANS AND CONTRIBUTIONS. Any making of any loan, advance
or capital contribution to or investment in any Person by Total or any
Subsidiary other than (i) loans, advances or capital contributions to or
investments in wholly owned Subsidiaries of Total or (ii) loans or advances to
employees of Total or any Subsidiary made in the ordinary and usual course of
business consistent with past practice;
19
4.7.7 MATERIAL AGREEMENTS. (i) Any making of any Material
Agreement by Total or any Subsidiary except transactions, commitments, contracts
or agreements with clients and customers for the performance of services in the
ordinary and usual course of business consistent with past practice and those
contemplated by this Agreement, (ii) any modification, amendment, assignment,
termination or relinquishment by Total or any Subsidiary of any Material
Agreement or other right (including any insurance policy naming it as a
beneficiary or a loss payable payee) that has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
Total, (iii) any default under any Material Agreement by Total or any of its
Subsidiaries or, to Total's or any of its Subsidiaries' knowledge, by any other
party thereto, or event that with the lapse of time or the giving of notice or
both would constitute a default thereunder by Total or any of its Subsidiaries,
or, to Total's or any of its Subsidiaries' knowledge, any other party, in each
case except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Total, or (iv)
any notice given by or claim made by any party to any such Material Agreement of
Total or any of its Subsidiaries with respect to any breach or default
thereunder, in each case except as has not had, and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
Total;
4.7.8 ACCOUNTING CHANGES. Any material change in any method of
accounting or accounting principles or practice by Total or any Subsidiary,
except for any such change required by reason of a change in GAAP or applicable
Law; or
4.7.9 EXECUTIVES. Any (i) grant of any severance or
termination pay to any Executive of Total or its Subsidiaries, (ii) entering
into of any written employment, deferred compensation, consulting or other
similar agreement (or any amendment to any such existing agreement) with any
Executive of Total or its Subsidiaries, (iii) increase in benefits payable to
any Executive of Total or its Subsidiaries under any existing severance or
termination pay policies or employment agreements, or (iv) increase in
compensation, bonus or other benefits payable to any Executive of Total or any
of its Subsidiaries.
4.8 INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Total for inclusion or incorporation by reference in (i) the S-4 at
the time the S-4 is filed with the SEC, at the time it is amended or
supplemented, and at the time it becomes effective under the Securities Act,
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) the Joint Proxy Statement/Prospectus will, at the
date mailed to the stockholders of Total, at the date mailed to the stockholders
of Xxxxxx, at the time of the Total Stockholders Meeting, and at the time of the
Xxxxxx Stockholders Meeting (together with the Total Stockholders Meeting, the
"Stockholder Meetings") 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. If at any time prior to the votes at the Stockholder
Meetings, any event with respect to Total, its officers and directors or any of
its Subsidiaries should occur which is required to be described in an amendment
of, or a supplement to, the S-4 or the Joint Proxy Statement/Prospectus, Total
shall promptly so advise Xxxxxx and such event shall be so described, and such
amendment or supplement (which Xxxxxx shall have a reasonable opportunity to
review) shall be promptly filed with the SEC and, to the extent required by Law,
disseminated to the stockholders of Total. The Joint Proxy
20
Statement/Prospectus will comply as to form in all material respects with the
provisions of the Securities Act and the Exchange Act and the rules and
regulations thereunder. Notwithstanding the foregoing, no representation is made
in this Section 4.8 as to information provided by Xxxxxx for inclusion in the
S-4 or the Joint Proxy Statement/Prospectus.
4.9 CONSENTS AND APPROVALS. Except for the Approvals, no filing with or
notice to, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution and delivery by Total of this
Agreement or the consummation by Total of the transactions contemplated hereby
or thereby, except where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings or give such notice does not have,
and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on Total.
4.10 NO VIOLATION.
4.10.1 VIOLATIONS RELATED TO TRANSACTION. Neither the
execution, delivery and performance of this Agreement by Total nor the
consummation by Total of the transactions contemplated hereby will (i) conflict
with or result in any breach of any provision of the respective Organizational
Documents of Total, (ii) conflict with or result in any breach of any provision
of the Organizational Documents of Total's Subsidiaries or result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default under, or give rise to any right of termination, amendment,
cancellation or acceleration of any obligation or the loss of any material
benefit, or the creation of any Lien under, any of the terms, conditions or
provisions of any Material Agreement of Total or (iii) (assuming receipt of all
Approvals) violate any Law applicable to Total or any of its Subsidiaries or any
of their respective properties or assets, except, in the case of (ii), as set
forth in Section 4.10.1 of the Total Disclosure Schedule and except, in the case
of (ii) or (iii), for violations, breaches or defaults that have not had, and
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Total.
4.10.2 VIOLATIONS RELATED TO DOCUMENTS AND AGREEMENTS. Except
for violations that have not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Total, neither
Total nor any of its Subsidiaries is in violation in any material respect of any
term of (i) its Organizational Documents, or (ii) any Material Agreement to
which it is a party or by which it is bound.
4.10.3 VIOLATIONS RELATED TO LAW. The businesses of Total and
its Subsidiaries are not being conducted in violation of any Law applicable to
Total or its Subsidiaries, except for violations which do not have, and would
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Total. Except as set forth in Section 4.10.3 of the Total
Disclosure Schedule, to Total's knowledge, no investigation or review by any
Governmental Entity with respect to Total or its Subsidiaries is pending or
threatened, nor, to Total's knowledge, has any Governmental Entity indicated an
intention to conduct the same except for such investigations and reviews which
have not had and would not be reasonably expected to have individually or in the
aggregate, a Material Adverse Effect on Total.
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4.10.4 COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) Each of Total
and its Subsidiaries are, and at all times have been in material compliance with
all Environmental Laws; each of Total and it Subsidiaries have obtained, and
each of them is in material compliance with all Environmental Permits required
of the business of Total and each of its Subsidiaries, or required of any real
property owned, leased or operated by any of them, (ii) neither Total nor its
Subsidiaries is subject to any pending or threatened Environmental Claim which
would give rise to a Material Adverse Effect, (iii) there are no facts,
conditions or circumstances related to the business of Total or any of its
Subsidiaries, or to any real property currently or formerly owned, operated or
leased by any of them which could give rise to any material obligation under
Environmental Law to investigate, remediate or clean up, or to pay for the costs
of any investigation, remediation or cleanup of any hazardous substances, and
(iv) neither Total nor its Subsidiaries have transported, disposed of, or
arranged for the transportation or disposal of any hazardous substances at any
site which is subject to, or has been proposed for, an investigation or clean up
under applicable Environmental Laws.
4.10.5 FRANCHISES; PERMITS. Total and its Subsidiaries hold
all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary for the lawful conduct of their respective
businesses ("Total Permits"), except for failures to hold such permits,
licenses, variances, exemptions, orders and approvals which have not had, and
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Total. Total and its Subsidiaries are in compliance
with the terms of the Total Permits, except where the failure to so comply has
not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Total.
4.11 LITIGATION; CLAIMS. Except as and to the extent disclosed in the
Total SEC Documents filed prior to the date hereof, or as set forth in Section
4.11 of the Total Disclosure Schedule, there is no suit, claim, action,
proceeding or investigation pending or, to Total's knowledge, threatened,
against Total or any of its Subsidiaries or any of their respective properties
or assets which (i) involves a claim in excess of $100,000 which is not fully
covered by insurance, or (ii) has had, or if decided adversely to Total would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Total. Except as and to the extent disclosed in the Total SEC
Documents filed prior to the date hereof none of Total and its Subsidiaries is
subject to any outstanding order, writ, injunction or decree which has had, or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Total. There are no complaints, charges or claims
against Total or any of its Subsidiaries or, to the knowledge of Total,
threatened to be brought or filed with any Governmental Entity based on, arising
out of, in connection with or otherwise relating to the employment by Total or
any of its Subsidiaries of any individual, including any claim relating to
employment discrimination, equal pay, employee safety and health, wages and
hours or workers' compensation and neither Total nor any of its Subsidiaries has
violated any Law respecting such matter, in each case except as has not had, and
would not be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect on Total.
4.12 EMPLOYEE BENEFIT PLANS; ERISA.
4.12.1 BENEFIT PLAN DOCUMENTS. Section 4.12.1 of the Total
Disclosure Schedule sets forth a true and complete list of each Total Benefit
Plan. With respect to each of the Total
22
Benefit Plans, Total has made available to Xxxxxx true and complete copies of
each of the following documents: (i) the Total Benefit Plan and related
documents (including all amendments thereto), (ii) the most recent annual
reports and financial statements, if any, (iii) the most recent summary plan
description, together with each summary of material modifications, required
under ERISA, if any, and (iv) the most recent determination letter received from
the IRS with respect to each Total Benefit Plan that is intended to be qualified
under Section 401(a) of the Code.
4.12.2 NO CHANGE IN TOTAL BENEFIT PLANS. Except as set forth
in Section 4.12.2 of the Total Disclosure Schedule, since the Balance Sheet Date
(i) neither Total nor any of its Subsidiaries has made any plan or commitment,
whether legally binding or not, to create any additional Total Benefit Plan or
modify or change any existing Total Benefit Plan that would materially increase
the benefits provided to any employee or former employee, consultant or director
of Total or any Subsidiary thereof and (ii) there has been no material change,
amendment, modification to, or adoption of, any Total Benefit Plan.
4.12.3 TITLE IV OF ERISA. No Total Benefit Plan is subject to
Title IV of ERISA.
4.12.4 PROHIBITED TRANSACTIONS. Neither Total nor any of its
Subsidiaries has incurred, either directly or indirectly (including as a result
of an indemnification obligation), any liability under (i) any foreign law or
regulation relating to employee benefit plans, (ii) Section 406, 409, 502(i), or
502(1) of ERISA, or (iii) Section 4975 of the Code, or under any agreement,
instrument, statute, rule or legal requirement pursuant to or under which Total
or any of its Subsidiaries or any Total Benefit Plan has agreed to indemnify or
is required to indemnify any person against liability incurred under, or for a
violation or failure to satisfy the requirements of, any such legal requirement,
except for any such liability which has not had, and would not reasonably be
expected to have, a Material Adverse Effect on either Total or the Surviving
Corporation, as applicable, and to the knowledge of Total, no event, transaction
or condition has occurred, exists or is expected to occur which could result in
any such liability to Total, any of its Subsidiaries or to the Surviving
Corporation, except for any such liability which has not had, and would not
reasonably be expected to have, a Material Adverse Effect on either Total or the
Surviving Corporation, as applicable.
4.12.5 NO MULTI-EMPLOYER PLANS. None of the Total Benefit
Plans is a "multiemployer pension plan," as such term is defined in Section
3(37) of ERISA, a "multiple employer plan" (within the meaning of Section 413(c)
of the Code), a "multiple employer welfare arrangement," as such term is defined
in Section 3(40) of ERISA, or a single employer plan that has two or more
contributing sponsors, at least two of whom are not under common control, within
the meaning of Section 4063(a) of ERISA.
4.12.6 DETERMINATION LETTERS. (i) A favorable determination
letter has been issued by the Internal Revenue Service or the appropriate
foreign Governmental Entity, as applicable, with respect to the each of the
Total Benefit Plans that is intended to be "qualified" within the meaning of
Section 401(a) of the Code or under any law or regulation of any foreign
jurisdiction or regulatory agency, (ii) neither the consummation of the
transaction contemplated hereby nor any other event or circumstance since the
date of such letter has adversely affected or is reasonably expected to
adversely affect such qualification or exemption, (iii) each of the Total
23
Benefit Plans has been operated and administered in accordance with its terms
and applicable laws, including but not limited to ERISA and the Code, except for
such non-compliance which has not had, and would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on either
Total or the Surviving Corporation, as applicable, and (iv) to the knowledge of
Total, no circumstances exist for which it would be prudent for Total to
undertake remediation efforts with respect to any Total Benefit Plan pursuant to
the Internal Revenue Service Employee Plans Compliance Resolution System or any
similar program sponsored by the Internal Revenue Service or the Department of
Labor.
4.12.7 ACTIONS RELATED TO BENEFIT PLANS. There are no actions,
suits or claims pending, or, to the knowledge of Total, threatened or
anticipated (other than routine claims for benefits) against any Total Benefit
Plan, the assets of any Total Benefit Plan or against Total or any ERISA
Affiliate of Total with respect to any Total Benefit Plan. There is no judgment,
decree, injunction, rule or order of any Governmental Entity outstanding against
or in favor of any Total Benefit Plan or any fiduciary thereof (other than rules
of general applicability). There are no pending or, to the knowledge of Total,
threatened audits, examinations or investigations by any Governmental Entity
involving any Total Benefit Plan.
4.12.8 APPLICABLE REPORTS. There has been no violation of
ERISA with respect to the filing of applicable returns, reports, documents, and
notices regarding any of the Total Benefit Plans with the Secretary of Labor or
the Secretary of the Treasury or the furnishing of such notices or other
documents to the participants or beneficiaries of such Total Benefit Plans
which, in either case, could result in a liability that would reasonably be
expected to have a Material Adverse Effect on the Surviving Corporation.
4.12.9 EFFECT OF TRANSACTIONS. Except as disclosed in Section
4.12.9 of the Total Disclosure Schedule and except for any such event which
would not reasonably be expected to have a Material Adverse Effect on the
Surviving Corporation, the consummation of the transactions contemplated by this
Agreement will not (i) entitle any current or former employee, consultant, or
director of Total or any ERISA Affiliate of Total to severance pay, unemployment
compensation or any similar payment, (ii) accelerate the time of payment or
vesting, or increase the amount, of any compensation due to any such current or
former employee, consultant, or director, (iii) renew or extend the term of any
agreement regarding compensation for any such current or former employee,
consultant, or director, (iv) result in any "parachute payment" under Section
280G of the Code (whether or not such payment is considered to be reasonable
compensation for services rendered), (v) cause any compensation to fail to be
deductible under Section 162(m), or any other provision of the Code or any
similar foreign law or regulation, or (vi) result in a "change in control" or
the occurrence of any other event specified in the Total Benefit Plans which
would entitle any Person to any payment thereunder.
4.13 KEY EMPLOYEES. Except as set forth in Section 4.13 of the Total
Disclosure Schedule or disclosed in the Total SEC Documents filed prior to the
date hereof, Total is not aware that any Person has left employment since the
Balance Sheet Date, or intends to leave employment, with Total or any of its
Subsidiaries, whose departure would have or could reasonably be expected to have
a Material Adverse Effect on Total.
4.14 TAXES.
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4.14.1 RETURNS. All income Tax Returns and all material other
Tax Returns required to be filed by Total or its Subsidiaries on or prior to the
Effective Time have been or will be prepared in good faith and timely filed with
the appropriate Governmental Entity on or prior to the Effective Time or by the
due date thereof, including extensions, and all such Tax Returns are (or, as to
Tax Returns not filed on the date hereof, will be) complete and accurate, except
where the failure to so file or for such returns to be complete and accurate has
not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Total.
4.14.2 PAYMENTS. All material Taxes that are required to be
paid by Total or its Subsidiaries (including all Taxes in connection with
transactions related to the agreement by and among Total Research Acquisitions
Limited, GfK Marketing Services Limited and Total Research Corporation for the
Sale and Purchase of Romtec plc), either (i) have been fully paid or (ii) are
adequately reflected as a liability on Total's or its Subsidiaries' books and
records, except for where the failure to fully pay such taxes or reflect them as
a liability on Total's or its Subsidiaries' books has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Total. All Taxes required to be collected or withheld from
third parties by Total or its Subsidiaries have been collected or withheld and
paid over to the appropriate Governmental Entity, except where the failure to
collect or withhold such Taxes from third parties or to pay over such Taxes has
not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Total.
4.14.3 TAXES NOT YET DUE. With respect to any period for which
Tax Returns have not yet been filed, or for which Taxes are not yet due or
owing, Total and its Subsidiaries have made due and sufficient accruals for such
Taxes in their respective books and records and financial statements, except
where the failure to make such accruals has not had, and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
Total.
4.14.4 WAIVERS OF STATUTES OF LIMITATION. Except as set forth
on Section 4.14.4 of the Total Disclosure Schedule, neither Total nor any of its
Subsidiaries has waived any statute of limitations, or agreed to any extension
of time, (i) with respect to U.S. federal income Taxes or (ii) where the payment
of the relevant state or foreign Taxes has had, or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on Total
with respect to such state or foreign Taxes.
4.14.5 AUDITS. Except as set forth on Section 4.14.5 of the
Total Disclosure Schedule, as of this date, there are no pending or, to the
knowledge of Total, threatened audits, examinations, investigations or other
proceedings in respect of Taxes of Total or its Subsidiaries and there are not
any unresolved questions or claims concerning Total's or any of its
Subsidiaries' Tax liability that (i) were raised by any taxing authority in a
communication to Total or any Subsidiary and (ii) has had, or would reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on Total, after taking into account any reserves for Taxes set forth on the most
recent balance sheet contained in the Total SEC Documents filed prior to the
date hereof.
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4.14.6 SECTION 355. Neither Total nor any Subsidiary has
constituted either a "distributing corporation" or a "controlled corporation"
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of
stock qualifying for Tax-free treatment under Section 355 of the Code since the
effective date of Section 355(e) of the Code.
4.15 REAL PROPERTY INTERESTS. Section 4.15 of the Total Disclosure
Schedule contains a complete and accurate list of all real property, leaseholds,
or other interests therein owned by Total and its Subsidiaries. Each of Total
and its Subsidiaries respectively has good and marketable title to each of its
owned real properties free and clear of Liens except for Liens that have not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Total. All of the leases, subleases, and
similar agreements pursuant to which Total and its Subsidiaries have the right
to use and occupy any real property are in full force and effect, except for
such failures as have not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Total.
4.16 INSURANCE. The insurance policies of Total and its Subsidiaries
are of a scope and provide coverage consistent with prudent and customary
practice of comparable businesses.
4.17 ABSENCE OF QUESTIONABLE PAYMENTS. Since July 1, 1998, neither
Total or any of its Subsidiaries nor, to Total's knowledge, any director,
officer, agent, employee or other person acting on behalf of Total or any of its
Subsidiaries, has used any corporate or other funds for unlawful contributions,
payments, gifts, or entertainment, or made any unlawful expenditures relating to
political activity to government officials or others or established or
maintained any unlawful or unrecorded funds in violation of Section 30A of the
Exchange Act. Neither Total or any of its Subsidiaries nor, to Total's
knowledge, any director, officer, agent, employee or other Person acting on
behalf of Total or any of its Subsidiaries, has accepted or received any
unlawful contributions, payments, gifts or expenditures.
4.18 INTELLECTUAL PROPERTY.
4.18.1 ADEQUATE RIGHTS. Total and its Subsidiaries own or
possess, in all material respects, adequate licenses or other valid rights to
use (in each case, free and clear of any Liens), all Intellectual Property used
or held for use in connection with the business of Total and its Subsidiaries as
currently conducted or as contemplated to be conducted, in each case except for
such failures that have not had, and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Total.
4.18.2 NO INFRINGEMENT; CLAIMS. The use of any Intellectual
Property by Total and its Subsidiaries does not infringe on, or otherwise
violate the rights of any Person and is in accordance with each applicable
license pursuant to which Total or any of its Subsidiaries acquired the right to
use such Intellectual Property, in each case except as has not had, and would
not be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect on Total. Neither Total nor any of its Subsidiaries has received
any written notice of any assertion, challenge, or claim with respect to any
Intellectual Property used by Total or any of its Subsidiaries, in each case
except as has not had, and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Total.
26
Total and/or each of its Subsidiaries has made all necessary
filings and recordations to protect and maintain its interest in the patents,
patent applications, trademark and service xxxx registrations, trademark and
service xxxx applications, copyright registrations and copyright applications,
Internet domain names and licenses, except where failure to so protect or
maintain the same would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on Total.
4.18.3 PROTECTION OF CONFIDENTIALITY; EMPLOYEES Total and its
Subsidiaries have taken reasonable and practicable steps designed to safeguard
and maintain the secrecy and confidentiality of the Intellectual Property owned
or used by Total or any of its Subsidiaries. All officers, employees and
consultants of Total having access to or developing any Intellectual Property of
Total and any of its Subsidiaries have an agreement with Total or such
Subsidiary regarding the protection of proprietary information and the license
or assignment of any Intellectual Property to Total or such Subsidiary arising
from the services performed by such Persons, and such Intellectual Property is
licensed or assigned to Total or such Subsidiary, or are works made-for-hire,
and Total or such Subsidiary is the author and owner of all such rights under
the Copyright Act of 1976, as amended. No current or prior officers, employees,
or consultants of Total or any of its Subsidiaries claims or have a right to
claim an ownership interest in any Intellectual Property as a result of having
been involved in the development or licensing of any such property while
employed by or consulting to Total or any of its Subsidiaries.
4.18.4 CERTAIN INTELLECTUAL PROPERTY. Without limiting the
representations and warranties contained in this Section 4.18 regarding the
Intellectual Property owned or used by Total and its Subsidiaries, except as had
not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Total, Total additionally represents and
warrants with regard to certain Intellectual Property, that Total or any of its
Subsidiaries own all right, title, and interest in and to the name and xxxx
Total Research and as used in the business of Total or its Subsidiaries in
connection with the goods and services offered under such name and xxxx in the
United States, except as had not had, and would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on Total.
4.19 INTERESTED PARTY TRANSACTIONs. Except as set forth in Section 4.19
of the Total Disclosure Schedule or the Total SEC Documents filed prior to the
date hereof, or for events as to which the amounts involved do not, in the
aggregate, exceed $100,000, since Total's proxy statement dated November 7,
2000, no event has occurred that would be required to be reported as a Certain
Relationship or Related Transaction pursuant to Item 404 of Regulation S-K
promulgated by the SEC.
4.20 OPINION OF FINANCIAL ADVISOR. Xxxxxx, Xxxxxx and Company has
delivered to the Total Board its opinion that, as of the date hereof, the
Exchange Ratio is fair to the holders of Total Shares from a financial point of
view, a copy of which has been furnished to Xxxxxx.
4.21 BROKERS. No broker, finder or investment banker (other than
Xxxxxx, Xxxxxx and Company, a true, correct and complete copy of whose
engagement agreement has been
27
provided to Xxxxxx) is entitled to any brokerage, finder's or other fee or
commission or expense reimbursement in connection with the transactions
contemplated by this Agreement based upon arrangements made by and on behalf of
Total or any of its Subsidiaries or affiliates.
4.22 TAX TREATMENT. Neither Total nor any of its Subsidiaries or
affiliates has taken or agreed to take any action, or after consultation with
Ernst & Young, its independent auditors, is aware of any fact or circumstance
relating to Total or any of its Subsidiaries, that would prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code.
4.23 TAKEOVER STATUTES. Assuming the accuracy of Xxxxxx'
representations and warranties in Section 5.22, the provisions of Section 203 of
the Corporation Law will not apply to the Merger.
4.24 EUROPEAN SUBSIDIARIES. Section 4.24 of the Total Disclosure
Schedule sets forth each Material Agreement to which any Total Subsidiary is a
party. There is no default under any such Material Agreement by any Total
Subsidiary or, to such Subsidiary's knowledge, by any other party thereto, and
no event has occurred that with the lapse of time or the giving of notice or
both would constitute a default thereunder by any Total Subsidiary or, to any
Total Subsidiary's knowledge, any other party, in each case except as has not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Total. No party to any such Material
Agreement has given notice to any Total Subsidiary of or made a claim against
any Total Subsidiary with respect to any breach or default thereunder, in each
case except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Total.
4.25 VOTING AGREEMENTS. Total has delivered to Xxxxxx Voting Agreements
executed by the holders of approximately at least 20% of the outstanding Total
Shares with respect to the Merger in form and substance satisfactory to Xxxxxx.
SECTION 5 - REPRESENTATIONS AND WARRANTIES OF XXXXXX AND MERGER SUB
Xxxxxx hereby represents and warrants to Total as follows:
5.1 CAPITALIZATION OF XXXXXX AND ITS SUBSIDIARIES.
5.1.1 CAPITALIZATION OF XXXXXX. The authorized capital stock
of Xxxxxx consists of (i) 100,000,000 shares of common stock par value $.001 per
share, of which 34,439,003 common shares were issued and outstanding as of
August 3, 2001, and none of which common shares were issued and held in the
treasury of Xxxxxx, and (ii) 5,000,000 of preferred stock par value $.01 per
share, none of which preferred shares were issued and outstanding as of August
3, 2001, and none of which preferred shares were issued and held in the treasury
of Xxxxxx. In addition, 3,801,284 shares of Xxxxxx common stock were subject to
outstanding options issued pursuant to the Incentive Plan, options with respect
to an additional 1,433,250 shares of Xxxxxx common stock were authorized but not
yet issued under the Incentive Plan, 67,659 shares of Xxxxxx common stock were
subject to outstanding warrants, and an aggregate of 5,302,193 shares were
reserved for issuance upon exercise of such outstanding options and warrants and
such
28
authorized, but not yet issued, options. All the outstanding Xxxxxx Shares are,
and the shares issuable upon the exercise of outstanding options and warrants
described in this Section 5.1.1 will be, when issued in accordance with the
terms thereof, and all Xxxxxx Shares to be issued as part of the Merger
Consideration or upon exercise of any of the Assumed Stock Options will be, when
issued in accordance with the terms hereof, duly authorized, validly issued,
fully paid and non-assessable. Since August 3, 2001, there have been no
issuances of shares of the capital stock or other securities of Xxxxxx and of
options, warrants and rights with respect to shares of Xxxxxx common stock or
other securities of Xxxxxx. Except as set forth above, as set forth in Section
5.1.1 of the Xxxxxx Disclosure Schedule, and for the transactions contemplated
by this Agreement, (i) there are no shares of capital stock of Xxxxxx
authorized, issued or outstanding, (ii) there are no authorized or outstanding
options, warrants, calls, preemptive rights, subscriptions or other rights,
agreements, arrangements or commitments of any character (whether or not
conditional) relating to the issued or unissued capital stock of Xxxxxx
obligating Xxxxxx to issue, transfer or sell or cause to be issued, transferred
or sold any shares of capital stock or other equity interest in Xxxxxx or
securities convertible into or exchangeable for such shares or equity interests,
or obligating Xxxxxx to grant, extend or enter into any such option, warrant,
call, subscription or other right, agreement, arrangement or commitment, and
(iii) there are no outstanding contractual obligations of Xxxxxx to repurchase,
redeem or otherwise acquire any shares or other capital stock of Xxxxxx, or to
make any payments based on the market price or value of shares or other capital
stock of Xxxxxx, or to provide funds to make any investment (in the form of a
loan, capital contribution or otherwise) in any Subsidiary or any other entity
other than loans to Subsidiaries in the ordinary and usual course of business
consistent with past practice.
5.1.2 CAPITALIZATION OF SUBSIDIARIES. The authorized capital
stock of each Subsidiary of Xxxxxx, including Merger Sub, is disclosed in
Section 5.1.2 of the Xxxxxx Disclosure Schedule, including (i) the types of
authorized shares, (ii) number of shares issued and outstanding as of August 3,
2001, (iii) number of shares issued and held in the Treasury of any such
Subsidiary, and (iv) a listing of the holders of all outstanding shares together
with the number of shares owned by each. There are no authorized or outstanding
options, warrants, calls, preemptive rights, subscriptions or other rights,
agreements, arrangements or commitments of any character (whether or not
conditional) relating to the issued or unissued capital stock of any Subsidiary
of Xxxxxx obligating Xxxxxx or such Subsidiary to issue, transfer or sell or
cause to be issued, transferred or sold any shares of capital stock or other
equity interest in such Subsidiary or securities convertible into or
exchangeable for such shares or equity interests, or obligating such Subsidiary
or Xxxxxx to grant, extend or enter into any such option, warrant, call,
subscription or other right, agreement, arrangement or commitment. There are no
outstanding contractual obligations of any Subsidiary of Xxxxxx or Xxxxxx to
repurchase, redeem or otherwise acquire any shares or other capital stock of any
Subsidiary of Xxxxxx, or to make any payments based on the market price or value
of shares or other capital stock of any Subsidiary of Xxxxxx, or to provide
funds to make any investment (in the form of a loan, capital contribution or
otherwise) in any Subsidiary or any other entity other than loans to
Subsidiaries in the ordinary and usual course of business consistent with past
practice. All of the outstanding shares of each Subsidiary of Xxxxxx are duly
authorized, validly issued, fully paid and non-assessable. Since August 3, 2001,
there have been no issuances of shares of the capital stock or other securities
of any Subsidiary of Xxxxxx or of options, warrants and rights with respect to
shares or other securities of any Subsidiary of Xxxxxx.
29
5.1.3 NO LIENS ON INTERESTS IN SUBSIDIARIES. All of the
outstanding capital stock of each Subsidiary of Xxxxxx is owned by Xxxxxx,
directly or indirectly, free and clear of any Lien or any other limitation or
restriction (including any restriction on the right to vote or sell the same,
except as may be provided as a matter of Law), and there are no irrevocable
proxies with respect to such capital stock.
5.2 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES.
5.2.1 EXISTENCE, POWER, AND QUALIFICATION. Each of Xxxxxx and
its Subsidiaries (i) is a corporation or legal entity duly organized, validly
existing and in good standing (to the extent the concept of good standing exists
in the applicable jurisdiction) under the Laws of the jurisdiction of its
incorporation and (ii) has all requisite corporate or similar power and
authority to own, lease and operate its properties and to carry on its
businesses as now conducted and proposed by Xxxxxx to be conducted, except when
the failure to be duly organized, validly existing and in good standing or to
have such power and authority has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on Xxxxxx.
Each of Xxxxxx and its Subsidiaries is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the property owned, leased
or operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so duly
qualified or licensed and in good standing has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on Xxxxxx.
5.2.2 SUBSIDIARIES. Section 5.2.2 of the Xxxxxx Disclosure
Schedule sets forth a list of all Subsidiaries of Xxxxxx, and except as set
forth therein Xxxxxx does not own, directly or indirectly, beneficially or of
record, any shares of capital stock or other security of any other Person or any
other investment in any other Person.
5.2.3 COPIES OF DOCUMENTS. Xxxxxx has heretofore made
available to Total (i) accurate and complete copies of the Organizational
Documents, as currently in effect, of each of Xxxxxx and its Subsidiaries, and
(ii) accurate and complete copies of all minutes of proceedings of the Xxxxxx
Board and those of its Subsidiaries, and of the committees of the Xxxxxx Board
and its Subsidiaries.
5.3 AUTHORITY RELATIVE TO THIS AGREEMENT.
5.3.1 POWER. Each of Xxxxxx and Merger Sub has all necessary
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby and thereby.
5.3.2 CORPORATE PROCEEDINGS; ENFORCEABILITY. The Xxxxxx Board
and the Merger Sub Board, by votes at meetings duly called and held, have (i)
duly and validly authorized the execution, delivery and performance of this
Agreement, (ii) approved the consummation of the transactions contemplated
hereby, including the Merger (within the meaning of Section 251 of the
Corporation Law) contained within this Agreement, and (iii) taken all corporate
actions required to be taken by the Xxxxxx Board or the Merger Sub Board for the
consummation of the transactions contemplated hereby. In addition, the Xxxxxx
Board by vote at a meeting duly called
30
and held has approved the Board Expansion. The Xxxxxx Board and the Merger Sub
Board have determined that such transactions are advisable and fair to, and in
the best interests of, Xxxxxx, Merger Sub and their stockholders. No other
corporate proceedings on the part of Xxxxxx or Merger Sub are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby
other than as described in Section 5.3.4.
5.3.3 ENFORCEABILITY. This Agreement has been duly and validly
executed and delivered by Xxxxxx and Merger Sub and, assuming the due
authorization, execution and delivery by Total, constitutes a valid, legal and
binding agreement of Xxxxxx and Merger Sub, enforceable against them in
accordance with its terms.
5.3.4 STOCKHOLDER ACTION. Xxxxxx, as the sole stockholder of
Merger Sub, has approved and adopted this Agreement. The Xxxxxx Board has, as of
the date hereof, resolved to recommend that the stockholders of Xxxxxx adopt
this Agreement and has directed that this Agreement be submitted to the
stockholders of Xxxxxx for their adoption at a meeting to be held for that
purpose. The affirmative vote of the holders of a majority of the outstanding
common stock of Xxxxxx, as of the record date for the Xxxxxx Stockholders
Meeting (the "Required Xxxxxx Vote") is the only vote of the holders of any
class or series of capital stock of Xxxxxx necessary to adopt this Agreement and
is the only vote of such holders required by Law, the Organizational Documents
of Xxxxxx or otherwise to consummate the transactions contemplated hereby.
5.4 FILINGS WITH SEC; FINANCIAL STATEMENTS.
5.4.1 SEC FILINGS. Xxxxxx has filed all required reports,
schedules, forms, statements and other documents with the SEC since July 1, 1998
(such documents, together with any documents filed during such period by Xxxxxx
with the SEC on a voluntary basis the "Xxxxxx SEC Documents"). As of their
respective dates, the Xxxxxx SEC Documents (i) complied in all material respects
with the applicable requirements of the Securities Act or the Exchange Act, as
the case may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such Xxxxxx SEC Documents and (ii) did not at the time they were
filed (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
5.4.2 XXXXXX FINANCIAL STATEMENTS. The financial statements of
Xxxxxx included in the Xxxxxx SEC Documents comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in accordance
with GAAP (except, in the case of unaudited statements, as permitted by Form
10-Q of the SEC) applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto) and fairly present the
consolidated financial position of Xxxxxx and its consolidated Subsidiaries as
of the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments that do not reflect a Material Adverse
Effect).
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5.5 NO UNDISCLOSED LIABILITIES. Except as set forth in the Xxxxxx SEC
Documents filed prior to the date hereof, and except for such liabilities and
obligations that have not had, and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Xxxxxx, neither
Xxxxxx nor any of its Subsidiaries has any liabilities whether or not accrued,
contingent, and whether or not required to be recorded or reflected on a balance
sheet under GAAP, and there is no condition, as of the date hereof, situation or
set of circumstances that could reasonably be expected to result in such a
liability or obligation.
5.6 MATERIAL AGREEMENTS. Section 5.6 of the Xxxxxx Disclosure Schedule
sets forth each Material Agreement with a customer or supplier of Xxxxxx and its
Subsidiaries which involve payments or receipts by such Person or any of its
Subsidiaries of at least $500,000 over the term of each such Material Agreement.
Each Material Agreement of Xxxxxx constitutes a valid and legally binding
obligation of Xxxxxx or its Subsidiaries, and to the knowledge of Xxxxxx and its
Subsidiaries, a valid and legally binding obligation of each other party
thereto, enforceable in accordance with its terms (except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other Laws of general applicability relating to or
affecting creditors' rights or by general equity principles), and is in full
force and effect, in each case except for such failures that have not had, and
would not be reasonably expected to have, a Material Adverse Effect on Xxxxxx.
There is no default under any Material Agreement either by Xxxxxx or its
Subsidiaries or, to Xxxxxx or its Subsidiaries' knowledge, by any other party
thereto, and no event has occurred that with the lapse of time or the giving of
notice or both would constitute a default thereunder by Xxxxxx or its
Subsidiaries or, to Xxxxxx' or its Subsidiaries' knowledge, any other party, in
each case except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Xxxxxx. No party
to any such Material Agreement has given notice to Xxxxxx or its Subsidiaries of
or made a claim against Xxxxxx or its Subsidiaries with respect to any breach or
default thereunder, in each case except as has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on Xxxxxx.
5.7 ABSENCE OF CHANGES. Except as and to the extent disclosed in the
Xxxxxx SEC Documents filed prior to the date hereof and as set forth in Section
5.7 of the Xxxxxx Disclosure Schedule, since the Balance Sheet Date, Xxxxxx and
its Subsidiaries have conducted their business in the ordinary and usual course
consistent with past practice and there has not been:
5.7.1 MATERIAL ADVERSE DEVELOPMENTS. Any event, occurrence or
development (including, for the purpose of clarity, any audit adjustment
covering periods prior to the Balance Sheet Date) which has had, or would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx;
5.7.2 DISTRIBUTIONS. Any declaration, setting aside or payment
of any dividend or other distribution with respect to any shares of capital
stock of Xxxxxx, or any repurchase, redemption or other acquisition by Xxxxxx or
any Subsidiary of any securities of Xxxxxx or of any of its Subsidiaries;
5.7.3 AMENDMENTS. Any amendment of (or agreement to amend) any
term of any outstanding equity securities of Xxxxxx or any Subsidiary;
32
5.7.4 DEBT AND GUARANTEES. (i) Any incurrence or assumption
(or agreement to incur or assume) by Xxxxxx or any Subsidiary of any
indebtedness for borrowed money other than in the ordinary and usual course of
business consistent with past practice or (ii) any guarantee, endorsement or
other incurrence or assumption of (or agreement to guarantee, endorse, incur or
assume) any material liability (whether directly, contingently or otherwise) by
Xxxxxx or any Subsidiary for the obligations of any other Person (other than any
Subsidiary of Xxxxxx), other than in the ordinary and usual course of business
consistent with past practice;
5.7.5 LIENS. Any creation or assumption by Xxxxxx or any
Subsidiary of any Lien on any material asset of Xxxxxx or any Subsidiary other
than in the ordinary and usual course of business consistent with past practice;
5.7.6 LOANS AND CONTRIBUTIONS. Any making of any loan, advance
or capital contribution to or investment in any Person by Xxxxxx or any
Subsidiary other than (i) loans, advances or capital contributions to or
investments in wholly owned Subsidiaries of Xxxxxx or (ii) loans or advances to
employees of Xxxxxx or any Subsidiary made in the ordinary and usual course of
business consistent with past practice;
5.7.7 MATERIAL AGREEMENTS. (i) Any making of any Material
Agreement by Xxxxxx or any Subsidiary except transactions, commitments,
contracts or agreements with clients and customers for the performance of
services in the ordinary and usual course of business consistent with past
practice and those contemplated by this Agreement, (ii) any modification,
amendment, assignment, termination or relinquishment by Xxxxxx or any Subsidiary
of any Material Agreement or other right (including any insurance policy naming
it as a beneficiary or a loss payable payee) that has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
Xxxxxx, (iii) any default under any Material Agreement by Xxxxxx or any of its
Subsidiaries or, to Xxxxxx' or any of its Subsidiaries' knowledge, by any other
party thereto, or event that with the lapse of time or the giving of notice or
both would constitute a default thereunder by Xxxxxx or any of its Subsidiaries,
or, to Xxxxxx' or any of its Subsidiaries' knowledge, any other party, in each
case except as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Xxxxxx, or (iv)
any notice given by or claim made by any party to any such Material Agreement of
Xxxxxx or any of its Subsidiaries with respect to any breach or default
thereunder, in each case except as has not had, and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
Xxxxxx
5.7.8 ACCOUNTING CHANGES. Any material change in any method of
accounting or accounting principles or practice by Xxxxxx or any Subsidiary,
except for any such change required by reason of a change in GAAP or applicable
Law; or
5.7.9 EXECUTIVES. Any (i) grant of any severance or
termination pay to any Executive of Xxxxxx or its Subsidiaries, (ii) entering
into of any written employment, deferred compensation, consulting or other
similar agreement (or any amendment to any such existing agreement) with any
Executive of Xxxxxx or its Subsidiaries, (iii) increase in benefits payable to
any Executive of Xxxxxx or its Subsidiaries under any existing severance or
termination pay policies or employment agreements, or (iv) increase in
compensation, bonus or other benefits payable to any Executive of Xxxxxx or any
of its Subsidiaries.
33
5.8 INFORMATION SUPPLIED. None of the information supplied or to be
supplied by Xxxxxx for inclusion or incorporation by reference in (i) the S-4 at
the time the S-4 is filed with the SEC, at the time it is amended or
supplemented, and at the time it becomes effective under the Securities Act,
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) the Joint Proxy Statement/Prospectus will, at the
date mailed to the stockholders of Xxxxxx, at the date mailed to the
stockholders of Total, and at the time of each of the Stockholder Meetings
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. If at any time prior to the votes at the Stockholder Meetings, any
event with respect to Xxxxxx, its officers and directors or any of its
Subsidiaries should occur which is required to be described in an amendment of,
or a supplement to, the S-4 or the Joint Proxy Statement/Prospectus, Xxxxxx
shall promptly so advise Total and such event shall be so described, and such
amendment or supplement (which Total shall have a reasonable opportunity to
review) shall be promptly filed with the SEC and, to the extent required by Law,
disseminated to the stockholders of Xxxxxx. The Joint Proxy Statement/Prospectus
will comply as to form in all material respects with the provisions of the
Securities Act and the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, no representation is made in this Section 5.8 as
to information provided by Total for inclusion in the S-4 or the Joint Proxy
Statement/Prospectus.
5.9 CONSENTS AND APPROVALS. Except for the Approvals, no filing with or
notice to, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution and delivery by Xxxxxx of
this Agreement or the consummation by Xxxxxx of the transactions contemplated
hereby or thereby, except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings or give such
notice does not have, and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on Xxxxxx.
5.10 NO VIOLATION.
5.10.1 VIOLATIONS RELATED TO TRANSACTION. Neither the
execution, delivery and performance of this Agreement by Xxxxxx or Merger Sub
nor the consummation by Xxxxxx or Merger Sub of the transactions contemplated
hereby will (i) conflict with or result in any breach of any provision of the
respective Organizational Documents of Xxxxxx or any of its Subsidiaries, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default under, or give rise to any right of
termination, amendment, cancellation or acceleration of any obligation or the
loss of any material benefit, or the creation of any Lien under, any of the
terms, conditions or provisions of any Material Agreement of Xxxxxx or (iii)
(assuming receipt of all Approvals) violate any Law applicable to Xxxxxx or any
of its Subsidiaries or any of their respective properties or assets, except, in
the case of (ii) or (iii), for violations, breaches or defaults that have not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx.
5.10.2 VIOLATIONS RELATED TO DOCUMENTS AND AGREEMENTS. Except
for violations that have not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Xxxxxx, neither
Xxxxxx nor any of its Subsidiaries is in violation in
34
any material respect of any term of (i) its Organizational Documents, or (ii)
any Material Agreement to which it is a party or by which it is bound.
5.10.3 VIOLATIONS RELATED TO LAW. The businesses of Xxxxxx and
its Subsidiaries are not being conducted in violation of any Law applicable to
Xxxxxx or its Subsidiaries, except for violations which do not have, and would
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx. To Xxxxxx'x knowledge, no investigation or review by
any Governmental Entity with respect to Xxxxxx or its Subsidiaries is pending or
threatened, nor, to Xxxxxx'x knowledge, has any Governmental Entity indicated an
intention to conduct the same except for such investigations and reviews which
have not had and would not be reasonably expected to have individually or in the
aggregate, a Material Adverse Effect on Xxxxxx.
5.10.4 COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) Each of Xxxxxx
and its Subsidiaries are, and at all times have been in material compliance with
all Environmental Laws; each of Xxxxxx and it Subsidiaries have obtained, and
each of them is in material compliance with all Environmental Permits required
of the business of Xxxxxx and each of its Subsidiaries, or required of any real
property owned, leased or operated by any of them, (ii) neither Xxxxxx nor its
Subsidiaries is subject to any pending or threatened Environmental Claim which
would give rise to a Material Adverse Effect, (iii) there are no facts,
conditions or circumstances related to the business of Xxxxxx or any of its
Subsidiaries, or to any real property currently or formerly owned, operated or
leased by any of them which could give rise to any material obligation under
Environmental Law to investigate, remediate or clean up, or to pay for the costs
of any investigation, remediation or cleanup of any hazardous substances, and
(iv) neither Xxxxxx nor its Subsidiaries have transported, disposed of, or
arranged for the transportation or disposal of any hazardous substances at any
site which is subject to, or has been proposed for, an investigation or clean up
under applicable Environmental Laws.
5.10.5 FRANCHISES; PERMITS. Xxxxxx and its Subsidiaries hold
all permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary for the lawful conduct of their respective
businesses ("Xxxxxx Permits"), except for failures to hold such permits,
licenses, variances, exemptions, orders and approvals which have not had, and
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Xxxxxx. Xxxxxx and its Subsidiaries are in compliance
with the terms of Xxxxxx Permits, except where the failure to so comply has not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx.
5.11 LITIGATION; CLAIMS. Except as and to the extent disclosed in the
Xxxxxx SEC Documents filed prior to the date hereof, or as set forth in Section
5.11 of the Xxxxxx Disclosure Schedule, there is no suit, claim, action,
proceeding or investigation pending or, to Xxxxxx'x knowledge, threatened,
against Xxxxxx or any of its Subsidiaries or any of their respective properties
or assets which (i) involves a claim in excess of $100,000 which is not fully
covered by insurance, or (ii) has had, or if decided adversely to Xxxxxx would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse
35
Effect on Xxxxxx. Except as and to the extent disclosed in the Xxxxxx SEC
Documents filed prior to the date hereof, none of Xxxxxx and its Subsidiaries is
subject to any outstanding order, writ, injunction or decree which has had, or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Xxxxxx. There are no complaints, charges or claims
against Xxxxxx or any of its Subsidiaries or, to the knowledge of Xxxxxx,
threatened to be brought or filed with any Governmental Entity based on, arising
out of, in connection with or otherwise relating to the employment by Xxxxxx or
any of its Subsidiaries of any individual, including any claim relating to
employment discrimination, equal pay, employee safety and health, wages and
hours or workers' compensation and neither Xxxxxx nor any of its Subsidiaries
has violated any Law respecting such matter, in each case except as has not had,
and would not be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx.
5.12 EMPLOYEE BENEFIT PLANS; ERISA.
5.12.1 BENEFIT PLAN DOCUMENTS. Section 5.12.1 of the Xxxxxx
Disclosure Schedule sets forth a true and complete list of each Xxxxxx Benefit
Plan. With respect to each of the Xxxxxx Benefit Plans, Xxxxxx has made
available to Total true and complete copies of each of the following documents:
(i) the Xxxxxx Benefit Plan and related documents (including all amendments
thereto), (ii) the most recent annual reports and financial statements, if any,
(iii) the most recent summary plan description, together with each summary of
material modifications, required under ERISA, if any, and (iv) the most recent
determination letter received from the IRS with respect to each Xxxxxx Benefit
Plan that is intended to be qualified under Section 401(a) of the Code.
5.12.2 NO CHANGE IN XXXXXX BENEFIT PLANS. Except as have not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx, since the Balance Sheet Date (i)
neither Xxxxxx nor any of its Subsidiaries has made any plan or commitment,
whether legally binding or not, to create any additional Xxxxxx Benefit Plan or
modify or change any existing Xxxxxx Benefit Plan that would materially increase
the benefits provided to any employee or former employee, consultant or director
of Xxxxxx or any Subsidiary thereof and (ii) there has been no material change,
amendment, modification to, or adoption of, any Xxxxxx Benefit Plan.
5.12.3 TITLE IV OF ERISA. No Xxxxxx Benefit Plan is subject to
Title IV of ERISA.
5.12.4 PROHIBITED TRANSACTIONS. Neither Xxxxxx nor any of its
Subsidiaries has incurred either directly or indirectly (including as a result
of an indemnification obligation), any liability under (i) any foreign law or
regulation relating to employee benefit plans, (ii) Section 406, 409, 502(i), or
502(l) of ERISA, or (iii) Section 4975 of the Code, or under any agreement,
instrument, statute, rule or legal requirement pursuant to or under which Xxxxxx
or any of its Subsidiaries or any Xxxxxx Benefit Plan has agreed to indemnify or
is required to indemnify any person against liability incurred under, or for a
violation or failure to satisfy the requirements of, any such legal
requirement), except for any such liability which has not had, and would not
reasonably be expected to have, a Material Adverse Effect on Xxxxxx, and to the
knowledge of Xxxxxx, no event, transaction or condition has occurred, exists or
is expected to occur which could result in any such liability to Xxxxxx, any of
its Subsidiaries or to the Surviving Corporation, except for any such liability
which has not had, and would not reasonably be expected to have, a Material
Adverse Effect on Xxxxxx.
36
5.12.5 NO MULTI-EMPLOYER PLANS. None of the Xxxxxx Benefit
Plans is a "multiemployer pension plan," as such term is defined in Section
3(37) of ERISA, a "multiple employer plan" (within the meaning of Section 413(c)
of the Code), a "multiple employer welfare arrangement," as such term is defined
in Section 3(40) of ERISA, or a single employer plan that has two or more
contributing sponsors, at least two of whom are not under common control, within
the meaning of Section 4063(a) of ERISA.
5.12.6 DETERMINATION LETTERS. A favorable determination letter
has been issued by the Internal Revenue Service or the appropriate foreign
Governmental Entity, as applicable, with respect to the each of the Xxxxxx
Benefit Plans that is intended to be "qualified" within the meaning of Section
401(a) of the Code or under any law or regulation of any foreign jurisdiction or
regulatory agency, respectively, and neither the consummation of the transaction
contemplated hereby nor any other event or circumstance since the date of such
letter has adversely affected or is reasonably expected to adversely affect such
qualification or exemption. Each of the Xxxxxx Benefit Plans has been operated
and administered in accordance with its terms and applicable laws, including but
not limited to ERISA and the Code, except for such non-compliance which has not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx. To the knowledge of Xxxxxx, no
circumstances exist for which it would be prudent for Xxxxxx to undertake
remediation efforts with respect to any Xxxxxx Benefit Plan pursuant to the
Internal Revenue Service Employee Plans Compliance Resolution System or any
similar program sponsored by the Internal Revenue Service or the Department of
Labor.
5.12.7 ACTIONS RELATED TO BENEFIT PLANS. There are no actions,
suits or claims pending, or, to the knowledge of Xxxxxx, threatened or
anticipated (other than routine claims for benefits) against any Xxxxxx Benefit
Plan, the assets of any Xxxxxx Benefit Plan or against Xxxxxx or any ERISA
Affiliate of Xxxxxx with respect to any Xxxxxx Benefit Plan. There is no
judgment, decree, injunction, rule or order of any Governmental Entity
outstanding against or in favor of any Xxxxxx Benefit Plan or any fiduciary
thereof (other than rules of general applicability). There are no pending or, to
the knowledge of Xxxxxx, threatened audits, examinations or investigations by
any Governmental Entity involving any Xxxxxx Benefit Plan.
5.12.8 APPLICABLE REPORTS. There has been no violation of
ERISA with respect to the filing of applicable returns, reports, documents, and
notices regarding any of the Xxxxxx Benefit Plans with the Secretary of Labor or
the Secretary of the Treasury or the furnishing of such notices or other
documents to the participants or beneficiaries of such Xxxxxx Benefit Plans
which, in either case, could result in a liability that would reasonably be
expected to have a Material Adverse Effect on the Surviving Corporation.
5.12.9 EFFECT OF TRANSACTIONS. Except for any such event which
would not reasonably be expected to have a Material Adverse Effect on Xxxxxx,
the consummation of the transactions contemplated by this Agreement will not (i)
entitle any current or former employee, consultant, or director of Xxxxxx or any
ERISA Affiliate of Xxxxxx to xxxxxxxxx pay, unemployment compensation or any
similar payment, (ii) accelerate the time of payment or vesting, or increase the
amount, of any compensation due to any such current or former employee,
consultant, or director, (iii) renew or extend the term of any agreement
regarding compensation for any such current or former employee, consultant, or
director, (iv) result in any
37
"parachute payment" under Section 280G of the Code (whether or not such payment
is considered to be reasonable compensation for services rendered), (v) cause
any compensation to fail to be deductible under Section 162(m), or any other
provision of the Code or any similar foreign law or regulation, (vi) result in a
"change in control" or the occurrence of any other event specified in the Xxxxxx
Benefit Plans which would entitle any Person to any payment thereunder, or (vii)
result in any event described in Section 4062(e) of ERISA.
5.13 KEY EMPLOYEES. Except as set forth in Section 5.13 of the Xxxxxx
Disclosure Schedule or disclosed in the Xxxxxx SEC Documents filed prior to the
date hereof, Xxxxxx is not aware that any Person has left employment since the
Balance Sheet Date, or intends to leave employment, with Xxxxxx or any of its
Subsidiaries, whose departure would have or could reasonably be expected to have
a Material Adverse Effect on Xxxxxx.
5.14 TAXES.
5.14.1 RETURNS. All income Tax Returns and all material other
Tax Returns required to be filed by Xxxxxx or its Subsidiaries on or prior to
the Effective Time have been or will be prepared in good faith and timely filed
with the appropriate Governmental Entity on or prior to the Effective Time or by
the due date thereof including extensions and all such Tax Returns are (or, as
to Tax Returns not filed on the date hereof, will be) complete and accurate,
except where the failure to so file or for such returns to be complete and
accurate has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on Xxxxxx.
5.14.2 PAYMENTS. All material Taxes that are required to be
paid by Xxxxxx or its Subsidiaries, either (i) have been fully paid, or (ii) are
adequately reflected as a liability on Xxxxxx'x or its Subsidiaries' books and
records, except for where the failure to fully pay such taxes or reflect them as
a liability on Xxxxxx'x or its Subsidiaries' books has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx. All Taxes required to be collected or withheld from
third parties by Xxxxxx or its Subsidiaries have been collected or withheld and
paid over to the appropriate Government Entity, except where the failure to
collect or withhold such Taxes from third parties or to pay over such Taxes has
not had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx.
5.14.3 TAXES NOT YET DUE. With respect to any period for which
Tax Returns have not yet been filed, or for which Taxes are not yet due or
owing, Xxxxxx and its Subsidiaries have made due and sufficient accruals for
such Taxes in their respective books and records and financial statements,
except where the failure to make such accruals has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx.
5.14.4 WAIVERS OF STATUTES OF LIMITATION. Neither Xxxxxx nor
any of its Subsidiaries has waived any statute of limitations, or agreed to any
extension of time, (i) with respect to U.S. federal income Taxes, or (ii) where
the payment of the relevant state or foreign Taxes has had, or would reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
on Xxxxxx with respect to such state or foreign Taxes.
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5.14.5 XXXXXX.Xx of the date of this Agreement, there are no
pending or, to the knowledge of Xxxxxx, threatened audits, examinations,
investigations or other proceedings in respect of Taxes of Xxxxxx or its
Subsidiaries and there are not any unresolved questions or claims concerning
Xxxxxx'x or any of its Subsidiaries' Tax liability that (i) were raised by any
taxing authority in a communication to Xxxxxx or any Subsidiary, and (ii) has
had, or would reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx, after taking into account any reserves for
Taxes set forth on the most recent balance sheet contained in Xxxxxx SEC
Documents filed prior to the date hereof.
5.14.6 SECTION 355. Neither Xxxxxx nor any Subsidiary has
constituted either a "distributing corporation" or a "controlled corporation"
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of
stock qualifying for Tax-free treatment under Section 355 of the Code since the
effective date of Section 355(e) of the Code.
5.15 REAL PROPERTY INTERESTS. Section 5.15 of the Xxxxxx Disclosure
Schedule contains a complete and accurate list of all real property, leaseholds,
or other interests therein owned by Xxxxxx and its Subsidiaries. Each of Xxxxxx
and its Subsidiaries respectively has good and marketable title to each of its
owned real properties free and clear of Liens except for Liens that have not
had, and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx. All of the leases, subleases,
and similar agreements pursuant to which Xxxxxx and its Subsidiaries have the
right to use and occupy any real property are in full force and effect, except
for such failures as have not had, and would not reasonably be expected to have,
individually or in the aggregate a Material Adverse Effect on Xxxxxx.
5.16 INSURANCE. The insurance policies of Xxxxxx and its Subsidiaries
are of a scope and provide coverage consistent with prudent and customary
practice of comparable businesses.
5.17 ABSENCE OF QUESTIONABLE PAYMENTS. Since July 1, 1998, neither
Xxxxxx or any of its Subsidiaries nor, to Xxxxxx'x knowledge, any director,
officer, agent, employee or other person acting on behalf of Xxxxxx or any of
its Subsidiaries, has used any corporate or other funds for unlawful
contributions, payments, gifts, or entertainment, or made any unlawful
expenditures relating to political activity to government officials or others or
established or maintained any unlawful or unrecorded funds in violation of
Section 30A of the Exchange Act. Neither Xxxxxx or any of its Subsidiaries nor,
to Xxxxxx'x knowledge, any director, officer, agent, employee or other person
acting on behalf of Xxxxxx or any of its Subsidiaries, has accepted or received
any unlawful contributions, payments, gifts, or expenditures.
5.18 INTELLECTUAL PROPERTY.
5.18.1 ADEQUATE RIGHTS. Xxxxxx and its Subsidiaries own or
possess, in all material respects, adequate licenses or other valid rights to
use (in each case, free and clear of any Liens), all Intellectual Property used
or held for use in connection with the business of Xxxxxx and its Subsidiaries
as currently conducted, or except as set forth in Section 5.18.1 of the Xxxxxx
Disclosure Schedule, as contemplated to be conducted, in each case except for
such failures that have not had, and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on Xxxxxx.
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5.18.2 NO INFRINGEMENT; CLAIMS. The use of any Intellectual
Property by Xxxxxx and its Subsidiaries does not infringe on, or otherwise
violate the rights of any Person and is in accordance with each applicable
license pursuant to which Xxxxxx or any of its Subsidiaries acquired the right
to use such Intellectual Property, in each case except as has not had, and would
not be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx. Neither Xxxxxx nor any of its Subsidiaries has
received any notice (written or otherwise) of any assertion, challenge, or claim
with respect to any Intellectual Property used by Xxxxxx or any of its
Subsidiaries, in each case except as has not had, and would not be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect on
Xxxxxx.
Xxxxxx and/or each of its Subsidiaries has made all necessary
filings and recordations to protect and maintain its interest in the patents,
patent applications, trademark and service xxxx registrations, trademark and
service xxxx applications, copyright registrations and copyright applications,
Internet domain names and licenses, except where failure to so protect or
maintain the same would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on Xxxxxx.
5.18.3 PROTECTION OF CONFIDENTIALITY; EMPLOYEES. Xxxxxx and
its Subsidiaries have taken reasonable and practicable steps designed to
safeguard and maintain the secrecy and confidentiality of the Intellectual
Property owned or used by Xxxxxx or any of its Subsidiaries. All officers,
employees and consultants of Xxxxxx having access to or developing any
Intellectual Property of Xxxxxx and any of its Subsidiaries have an agreement
with Xxxxxx or such Subsidiary regarding the protection of proprietary
information and the license or assignment of any Intellectual Property to Xxxxxx
or such Subsidiary arising from the services performed by such Persons, and such
Intellectual Property is licensed or assigned to Xxxxxx or such Subsidiary, or
are works made-for-hire, and Xxxxxx or such Subsidiary is the author and owner
of all such rights under the Copyright Act of 1976, as amended. No current or
prior officers, employees, or consultants of Xxxxxx or any of its Subsidiaries
claims or have a right to claim an ownership interest in any Intellectual
Property as a result of having been involved in the development or licensing of
any such property while employed by or consulting to Xxxxxx or any of its
Subsidiaries.
5.18.4 CERTAIN INTELLECTUAL PROPERTY. Without limiting the
representations and warranties contained in this Section 5.18 regarding the
Intellectual Property owned or used by Xxxxxx and its Subsidiaries, Xxxxxx makes
the following additional representations and warranties with regard to certain
Intellectual Property except in each case as had not had, and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx:
(a) Neither Xxxxxx nor any of its Subsidiaries use or license,
or have used or licensed, or plan to use or license, the method and system for
conducting surveys over the Internet claimed by U.S. Patent No. 6,070,145 owned
by NPD Group, Inc., and no Intellectual Property owned or used by Xxxxxx or any
of its Subsidiaries now or in the past infringes upon such Patent.
(b) Xxxxxx or any of its Subsidiaries own all right, title,
and interest in and to the name and marks Harris Poll, Xxxxxx Online, Xxxxxx
Poll Online, Xxxxxx Interactive, and Xxxxxx
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Poll Interactive as used in the business of Xxxxxx or its Subsidiaries in
connection with the goods and services offered under such names and marks in the
locations of such offering, except for those countries identified in the
Schedule to the Trade Xxxx License Agreement between Xxxxxx and Xxxxxx Xxxxxx
Sofres plc, dated February 1, 2000.
(c) The Trade Xxxx License Agreement between Xxxxxx and Xxxxxx
Xxxxxx Sofres plc, dated February 1, 2000, is in full force and effect and
neither Xxxxxx nor any of its Subsidiaries has received any notice or claim that
the TNS License has been breached or is subject to termination. To the knowledge
of Xxxxxx there are no sublicenses or affiliate agreements, or comparable
agreements, granted by Xxxxxx or any of its Subsidiaries, that would support
such a notice or claim.
5.19 INTERESTED PARTY TRANSACTIONS. Except as set forth in the Xxxxxx
SEC Documents filed prior to the date hereof, or for events as to which the
amounts involved do not, in the aggregate, exceed $100,000, since Xxxxxx' proxy
statement dated September 28, 2000, no event has occurred that would be required
to be reported as a Certain Relationship or Related Transaction pursuant to Item
404 of Regulation S-K promulgated by the SEC.
5.20 OPINION OF FINANCIAL ADVISOR. U.S. Bancorp Xxxxx Xxxxxxx, Inc. has
delivered to the Xxxxxx Board its opinion that, as of the date hereof, the
Exchange Ratio is fair to the holders of Xxxxxx common stock from a financial
point of view, a copy of which has been furnished to Total.
5.21 BROKERS. No broker, finder or investment banker (other than U.S.
Bancorp Xxxxx Xxxxxxx, Inc., a true, correct and complete copy of whose
engagement agreement has been provided to Total) is entitled to any brokerage,
finder's or other fee or commission or expense reimbursement in connection with
the transactions contemplated by this Agreement based upon arrangements made by
and on behalf of Xxxxxx or any of its Subsidiaries or affiliates.
5.22 TAX TREATMENT. Neither Xxxxxx nor any of its Subsidiaries or
affiliates has taken or agreed to take any action, or after consultation with
PricewaterhouseCoopers LLP, its independent auditors, is aware of any fact or
circumstance relating to Xxxxxx or any of its Subsidiaries, that would prevent
the Merger from qualifying as a reorganization within the meaning of Section
368(a) of the Code.
5.23 TAKEOVER STATUTES. The Xxxxxx Board has approved, for purposes of
Section 203 of the Corporation Law, the Merger. Other than by reason of this
Agreement or the transactions contemplated hereby, neither Xxxxxx nor any of its
affiliates is, or has been, during the past three years an "interested
stockholder" of Total, as that term is defined in Section 203 of the Corporation
Law. Xxxxxx has taken all action required to be taken by it in order to exempt
this Agreement and the transactions contemplated hereby from the requirements of
any applicable "moratorium", "control share", "fair price", "affiliate
transaction", "business combination" or other antitakeover Laws and regulations
of any state.
5.24 VOTING AGREEMENTS. Xxxxxx has delivered to Total Voting Agreements
executed by the holders of at least 53% of the outstanding Xxxxxx Shares with
respect to the Merger in form and substance satisfactory to Total.
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5.25 EMPLOYMENT AGREEMENT. Contemporaneously herewith, Xxxxxx has
entered into an employment agreement with Xxxxxx Xxxxxxxxx, the effectiveness of
which agreement is conditioned upon the Merger becoming effective.
SECTION 6 - COVENANTS OF TOTAL
6.1 CONDUCT OF BUSINESS OF TOTAL.During the period from the date of
this Agreement through and including the Effective Time, except as specifically
contemplated by this Agreement or as set forth in Section 6.1 of the Total
Disclosure Schedule, (i) Total shall consult with the Integration Committee
regarding any matter covered by subsections 6.1.6 through 6.1.10 (inclusive),
6.1.11(ii) and (iii), 6.1.12, 6.1.14 through 6.1.17 (inclusive), 6.1.20, and
6.1.21(i) to the extent that it relates to another subsection enumerated in this
subclause (i), and shall comply with such subsections unless otherwise consented
to or approved in writing by Xxxxxx (which consent or approval shall not be
unreasonably withheld), and (ii) Total shall comply with subsections 6.1.1
through 6.1.5 (inclusive), 6.1.11(i), 6.1.13, 6.1.18, 6.1.19, 6.1.21(i) to the
extent that it relates to another subsection enumerated in this subclause (ii),
and 6.1.21(ii) unless otherwise consented to or approved in writing by Xxxxxx:
6.1.1 ORDINARY COURSE. The business of Total and each of its
Subsidiaries shall be conducted only in, and Total and each of its Subsidiaries
shall not take any action except in, the ordinary and usual course of business
consistent with past practice.
6.1.2 ORGANIZATIONAL DOCUMENTS. Neither Total nor any of its
Subsidiaries shall make or propose any change or amendment in its Organizational
Documents.
6.1.3 SECURITIES. Neither Total nor any of its Subsidiaries
shall (i) issue or sell, or authorize the issuance or sale of, any shares of its
capital stock or any of its other securities or issue any securities convertible
into or exchangeable for, or options, warrants to purchase, scrip, rights to
subscribe for, calls or commitments of any character whatsoever relating to, or
enter into any contract, understanding or arrangement with respect to the
issuance of, any shares of its capital stock or any of its other securities, or
enter into any arrangement involving stock appreciation rights or the like, or
enter into any arrangement or contract with respect to the purchase or voting of
shares of its capital stock or adjust, split, combine or reclassify any of its
securities, or make any other changes in its capital structure; provided,
however, that Total may issue shares of its common stock pursuant to the terms
of vested and exercisable Stock Options or (ii) except as contemplated by
Sections 3.3 and 6.1.7, amend, waive or otherwise modify any of the terms of the
Stock Option Plan or any Stock Option.
6.1.4 DISTRIBUTIONS. Total shall not declare, pay or make any
dividend or other distribution or payment with respect to, or purchase, redeem
or otherwise acquire, any shares of its capital stock (except to the extent
necessary to meet minimum tax withholding obligations in connection with the
exercise of any Stock Options) or otherwise make any payments to stockholders in
their capacity as stockholders.
6.1.5 RELATIONSHIPS. Total shall, and shall cause each of its
Subsidiaries to, use all reasonable commercial efforts to preserve intact the
business organization of Total and each of its Subsidiaries, to keep available
the services of its and their present officers and key
42
employees, and to preserve the relationships and good will of customers,
suppliers, and others having business relationships with it and its Subsidiaries
such that there shall be no impairment in their ongoing businesses that has a
Material Adverse Effect.
6.1.6 SEVERANCE; EMPLOYMENT AGREEMENTS. Except as set forth in
Section 6.1.6 of the Total Disclosure Schedule, and except as may be required by
applicable Law, neither Total nor any of its Subsidiaries shall take any action
with respect to (i) the grant of any severance or termination pay (otherwise
than pursuant to written plans or agreements of Total or any of its Subsidiaries
in effect on the date hereof and made available to Xxxxxx prior to the date
hereof, or past severance practices set forth in Section 6.1.6 of the Total
Disclosure Schedule), (ii) any increase of benefits payable under such written
plans and agreements providing for severance or termination pay in effect on the
date hereof, or (iii) the creation of any employment or consulting agreement or
the like, except for new hire employees or consultants in the ordinary and usual
course of business consistent with past practice whose annual salary does not
exceed $100,000 and whose severance does not exceed six (6) months' base salary.
6.1.7 COMPENSATION. Neither Total nor any of its Subsidiaries
shall (except for salary increases or other employee benefit arrangements in the
ordinary and usual course of business consistent with past practice that do not
result in a material increase in benefits or compensation expense to Total or
any Subsidiary) (i) adopt or amend any bonus, profit sharing, compensation,
stock option, pension, retirement, deferred compensation, employment or other
employee benefit plan, agreement, trust, plan, fund or other arrangement for the
benefit or welfare of any employee, (ii) increase in any manner the compensation
or fringe benefits of any employee, or (iii) pay or grant any benefit not
required by any existing plan or arrangement.
6.1.8 INDEBTEDNESS; GUARANTEES; LIENS. Except with respect to
transactions between and among Total and any of its Subsidiaries or the
endorsement of negotiable instruments in the ordinary and usual course of its
business consistent with past practice, neither Total nor any of its
Subsidiaries (i) shall incur, assume, or guarantee any indebtedness for money
borrowed, (ii) pledge any of the capital stock of any Subsidiary, or (iii)
create or allow to be created or suffer to exist any material Lien upon any of
their material assets, whether tangible or intangible other than Liens
outstanding on the date hereof or pursuant to an agreement in effect on the date
hereof.
6.1.9 DISCHARGE OF LIABILITIES. Except as set forth in Section
6.1.9 of the Total Disclosure Schedule, Total shall not and shall not permit any
Subsidiary to pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted, unasserted, contingent or otherwise),
other than payment, discharge or satisfaction in the ordinary and usual course
of business consistent with past practice, pursuant to contractual arrangements
existing as of the date hereof or as required by Law.
6.1.10 DISPOSITION OF ASSETS. Except in the ordinary and usual
course of business consistent with past practice or in the case of obsolete or
redundant assets, or those requiring replacement, Total shall not and shall not
permit any Subsidiary to sell, lease or otherwise dispose of any of its material
assets.
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6.1.11 ACQUISITIONS; MATERIAL AGREEMENTS. Except as permitted
by this Agreement, neither Total nor any of its Subsidiaries shall (i) acquire
(by merger, consolidation, or acquisition of stock or assets or otherwise) any
Person or any equity interest therein, (ii) enter into any contract or
agreement, other than in the ordinary and usual course of business consistent
with past practice or amend in any material respect any of the Material
Agreements, or (iii) authorize any new capital expenditure or expenditures
which, individually or in the aggregate, are, or would reasonably be expected to
be material to Total.
6.1.12 ACCOUNTING PRACTICES; REVALUATION OF ASSETS. Except as
may be required as a result of a change in Law or in GAAP, neither Total nor any
of its Subsidiaries shall change any of the accounting principles or practices
used by it, or revalue in any material respect any of its assets, including,
without limitation, writing down revenues or accounts receivable other than in
the ordinary and usual course of business consistent with past practice or as
required by GAAP.
6.1.13 LIQUIDATION. Total shall not and shall not permit any
of its Subsidiaries to authorize, recommend, propose or announce an intention to
adopt a plan of complete or partial liquidation or dissolution of Total or any
of its Subsidiaries.
6.1.14 TAX LIABILITIES. Total shall not and shall not permit
any of its Subsidiaries to make any material tax elections or settle or
compromise any material income tax liability.
6.1.15 WAIVERS OF RIGHTS; PREPAYMENTS. Other than in the
ordinary and usual course of business consistent with past practice, Total shall
not and shall not permit any of its Subsidiaries to waive any material rights or
make any payment, direct or indirect, of any material liability of Total or any
of the Subsidiaries before the same comes due in accordance with its terms.
6.1.16 INSURANCE. Total shall not and shall not permit any of
its Subsidiaries to fail to maintain its existing material insurance coverage in
effect or, in the event any such coverage shall be terminated or lapse, to the
extent available at reasonable cost, procure substantially similar substitute
insurance policies that, in all material respects, are in at least such amounts
and against such risks as are currently covered by such policies.
6.1.17 LABOR AGREEMENTS. Total shall not and shall not permit
any of its Subsidiaries to enter into any new collective bargaining agreement or
any successor collective bargaining agreement.
6.1.18 SETTLEMENTS. Except as set forth in Section 6.1.18 of
the Total Disclosure Schedule, neither Total nor any of its Subsidiaries shall
settle or compromise any pending or threatened suit, action or claim relating to
the transactions contemplated hereby, or settle or compromise any other pending
or threatened suit, action or claim in any manner that has a Material Adverse
Effect.
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6.1.19 HINDRANCE OF TAX FREE MERGER. Neither Total nor any of
its Subsidiaries shall take any action (including any action otherwise permitted
by this Section 6.1) that would prevent or impede the Merger from qualifying as
a reorganization under Section 368(a) of the Code.
6.1.20 NON-COMPETITION. Neither Total nor any of its
Subsidiaries shall enter into any agreement or arrangement that limits or
otherwise restricts Total or any of its Subsidiaries or any successor thereto or
that would, after the Effective Time, limit or restrict the Surviving
Corporation and its affiliates or any successor thereto, from engaging or
competing in any line of business or in any geographic area.
6.1.21 OTHER AGREEMENTS AND ACTIONS. Except as provided in
this Section 6.1, neither Total nor any of its Subsidiaries shall take, propose
to take, or agree in writing or otherwise to take, (i) any of the actions
described in Sections 6.1.1 through 6.1.20 or, (ii) subject to the terms hereof,
any action which would be reasonably likely to result in any of the conditions
to the Merger set forth in Section 9 hereof not being satisfied.
6.2 ACCESS TO INFORMATION. Between the date hereof and the Effective
Time, Total will give Xxxxxx and its authorized representatives (including
counsel, financial advisors and auditors) reasonable access during normal
business hours to all employees, offices, and other facilities and to all books
and records of Total and its Subsidiaries, and will cause Total's officers and
those of its Subsidiaries to furnish Xxxxxx with such financial and operating
data and other information with respect to the business, properties and
personnel of Total and its Subsidiaries as Xxxxxx may from time to time
reasonably request, provided that no investigation pursuant to this Section 6.2
shall affect or be deemed to modify any of the representations or warranties
made by Total in this Agreement.
6.3 FINANCIAL STATEMENTS. Between the date hereof and the Effective
Time, Total shall furnish to Xxxxxx, (i) concurrently with the delivery thereof
to management, such monthly financial statements and data as Xxxxxx may
reasonably request and (ii) at the earliest time they are available, such
quarterly and annual financial statements as are prepared for Total's SEC
filings, which (in the case of this clause (ii)) shall be in accordance with the
books and records of Total.
6.4 NO SOLICITATION.
(a) Total shall not, nor will Total permit any of its Subsidiaries to,
nor will Total authorize or permit any officer, director, employee, or any
investment banker, attorney, accountant or other advisor or representative of
Total or any of its Subsidiaries to, directly or indirectly, solicit or
encourage the initiation of (including by way of furnishing information) any
inquiries or proposals regarding any merger, sale of assets, sale of shares of
capital stock (including without limitation by way of a tender offer) or similar
transactions involving Total or any of its Subsidiaries that if consummated
would constitute a Total Alternative Transaction (as defined below) (any of the
foregoing inquiries or proposals being referred to herein as a "Total Takeover
Proposal"). Nothing contained in this Agreement shall prevent the Total Board at
any time prior to the time at which the Required Total Vote shall have been
obtained at the Total Stockholders Meeting (or at any adjournment or
postponement thereof) (the "Required Total
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Vote Time") from (i) furnishing information to a Non-Xxxxxx Third Party (as
defined below) which has made a bona fide Total Takeover Proposal that is a
Superior Total Proposal (as defined below) not solicited in violation of this
Agreement, provided that such Non-Xxxxxx Third Party has executed an agreement
with confidentiality provisions substantially similar to those then in effect
between Total and Xxxxxx or (ii) subject to compliance with the other terms of
this Section 6.4, considering and negotiating a bona fide Total Takeover
Proposal that is a Superior Total Proposal not solicited in violation of this
Agreement; provided that, as to each of clauses (i) and (ii), the Total Board
reasonably determines in good faith (after due consultation with independent
counsel, which may be Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP) that it is or is
reasonably likely to be required to do so in order to discharge properly its
fiduciary duties. For purposes of this Agreement, a "Superior Total Proposal"
means any proposal made by a Non-Xxxxxx Third Party to acquire, directly or
indirectly, for consideration consisting of cash and/or securities, all of the
equity securities of Total entitled to vote generally in the election of
directors or all or substantially all the assets of Total, on terms which the
Total Board reasonably believes (after consultation with its financial advisor)
to be more favorable from a financial point of view to its stockholders than the
Merger, taking into account at the time of determination all factors relating to
such proposed transaction deemed relevant by the Total Board, including, without
limitation, the financing thereof, the proposed timing thereof and all other
conditions thereto and any changes to the financial terms of this Agreement
proposed by Xxxxxx and Merger Sub; provided, however, that a Superior Total
Proposal may be subject to a due diligence review of confidential information
and to other customary conditions. "Total Alternative Transaction" means any of
(i) a transaction pursuant to which any Person (or group of Persons) other than
Xxxxxx or its affiliates (a "Non-Xxxxxx Third Party") acquires or would acquire
more than 25% of the outstanding shares of any class of equity securities of
Total, whether from Total or pursuant to a tender offer or exchange offer or
otherwise, (ii) a merger or other business combination involving Total pursuant
to which any Non-Xxxxxx Third Party acquires more than 25% of the outstanding
equity securities of Total or the entity surviving such merger or business
combination, (iii) any transaction pursuant to which any Non-Xxxxxx Third Party
acquires or would acquire control of assets (including for this purpose the
outstanding equity securities of Total's Subsidiaries and securities of the
entity surviving any merger or business combination, including any of Total's
Subsidiaries) of Total or any of its Subsidiaries having a fair market value (as
determined by the Total Board in good faith) equal to more than 25% of the fair
market value of all the assets of Total and its Subsidiaries, taken as a whole,
immediately prior to such transaction, or (iv) any other consolidation, business
combination, recapitalization or similar transaction involving Total or any
"Significant Subsidiary" (as defined in Rule 1-02 under Regulation S-X) other
than the transactions contemplated by this Agreement; PROVIDED, HOWEVER, that
the term Total Alternative Transaction shall not include any acquisition of
securities in connection with arbitrage activities. Notwithstanding anything to
the contrary contained in this Section 6.4 or elsewhere in this Agreement, prior
to the Effective Time, the Total Board may, in connection with a possible Total
Takeover Proposal, refer any Non-Xxxxxx Third Party to this Section 6.4 and
Section 9.1 and make a copy of this Section 6.4 and Section 9.1 available to a
Non-Xxxxxx Third Party.
(b) Total shall notify Xxxxxx and Merger Sub as promptly as practicable
(but in no case later than 24 hours) after receipt of any Total Takeover
Proposal, or any modification of or amendment to any Total Takeover Proposal, or
any request for nonpublic information relating to Total or any of its
Subsidiaries in connection with a Total Takeover Proposal or for access to the
46
properties, books or records of Total or any of its Subsidiaries by any Person
that informs the Total Board that it is considering making, or has made, a Total
Takeover Proposal. Such notice to Xxxxxx and Merger Sub shall be made orally and
in writing, and shall indicate the identity of the Person making the Total
Takeover Proposal or intending to make the Total Takeover Proposal or requesting
non-public information or access to the books and records of Total, the terms of
any such Total Takeover Proposal or modification or amendment to a Total
Takeover Proposal, and whether Total is providing or intends to provide the
Person making the Total Takeover Proposal with access to information concerning
Total as provided in Section 6.4(a). Total shall also promptly notify Xxxxxx and
Merger Sub, orally and in writing, if it enters into negotiations concerning any
Total Takeover Proposal.
(c) Except as set forth in this Section 6.4, neither the Total Board
nor any committee thereof shall (i) withdraw or modify, or indicate publicly its
intention to withdraw or modify, in a manner adverse to Xxxxxx, the approval or
recommendation by the Total Board or such committee of the Merger, (ii) approve
or recommend, or indicate publicly its intention to approve or recommend, any
Total Takeover Proposal, or (iii) cause Total to enter into any letter of
intent, agreement in principle, acquisition agreement or other similar agreement
(each, a "Total Acquisition Agreement") related to any Total Takeover Proposal.
Notwithstanding the foregoing, in the event that prior to the Required Total
Vote Time the Total Board determines in good faith, with the advice of outside
counsel, that the failure to do so could reasonably be determined to be a breach
of its fiduciary duties to Total's stockholders under applicable law, the Total
Board may (subject to this and the following sentences) approve or recommend a
Superior Total Proposal and, in connection therewith, withdraw or modify its
approval or recommendation of the Merger and/or terminate this Agreement (and
concurrently with or after such termination, if it so chooses, cause Total to
enter into any Total Acquisition Agreement with respect to any Superior Total
Proposal), but only at a time that is after the third business day following
Xxxxxx' receipt of written notice advising Xxxxxx that the Total Board has
received a Superior Total Proposal and, in the case of any previously received
Superior Total Proposal that has been materially modified or amended, such
modification or amendment, and specifying the material terms and conditions of
such Superior Total Proposal, modification or amendment.
(d) Nothing contained in this Section 6.4 shall prohibit Total from
taking and disclosing to its stockholders a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act or from making any disclosure to
Total's stockholders if, in the good faith judgment of the Total Board, with the
advice of outside counsel, failure to so disclose could reasonably be determined
to be a breach of its fiduciary duties to Total's stockholders under applicable
law; PROVIDED, HOWEVER, that neither Total nor the Total Board nor any committee
thereof shall, except as permitted by Section 6.4(c), withdraw or modify, or
indicate publicly its intention to withdraw or modify, its position with respect
to this Agreement or the Merger or approve or recommend, or indicate publicly
its intention to approve or recommend, a Total Takeover Proposal.
(e) Total shall immediately cease and cause to be terminated any
existing discussions or negotiations with any Persons (other than Xxxxxx)
conducted heretofore with respect to any of the foregoing. Total agrees not to
release any Non-Xxxxxx Third Party (i) from the confidentiality provisions of,
or, (ii) except with respect to a party to whom the Total Board is permitted to
furnish information or with whom the Total Board is permitted to negotiate
pursuant to Section
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6.4(a), from the standstill provisions of, any agreement to which Total is a
party. Total shall advise its officers and directors and any investment banker
or attorney retained by Total in connection with the transactions contemplated
by this Agreement of the restrictions set forth in this Section 6.4.
6.5 CERTAIN CONSENTS. Total shall make all commercially reasonable and
diligent efforts to obtain prior to the Closing Date such agreements, consents,
waivers, or other actions as may be necessary to allow the Surviving Corporation
to continue to receive the benefits of the agreements set forth in Section 9.2.4
of the Total Disclosure Schedules after the Closing Date; provided, however,
that the actual receipt of such agreements, consents, waivers or other actions
shall not be a condition to closing.
SECTION 7 - COVENANTS OF XXXXXX
7.1 CONDUCT OF BUSINESS OF XXXXXX. During the period from the date of
this Agreement through and including the Effective Time, except as specifically
contemplated by this Agreement or as set forth in Section 7.1 of the Xxxxxx
Disclosure Schedule, (i) Xxxxxx shall consult with the Integration Committee
regarding any matter covered by subsections 7.1.1 through 7.1.10 (inclusive),
7.1.11(ii), 71.12 through 7.1.16 (inclusive), and 7.1.21(i) to the extent that
it relates to another subsection enumerated in this subclause (i), and shall
comply with such subsections unless otherwise consented to or approved in
writing by Total (which consent or approval shall not be unreasonably withheld),
(ii) Xxxxxx shall consult with the Integration Committee regarding any matter
covered by subsections 7.1.18, 7.1.19, and 7.1.20, and (iii) Xxxxxx shall comply
with subsections 7.1.11(i), 7.1.17, 7.1.21(i) to the extent that it relates to
another subsection enumerated in this subclause (ii), and 7.1.21(ii) unless
otherwise consented to or approved in writing by Total:
7.1.1 ORDINARY COURSE. The business of Xxxxxx and each of its
Subsidiaries shall be conducted only in, and Xxxxxx and each of its Subsidiaries
shall not take any action except in, the ordinary and usual course of business,
consistent with past practice.
7.1.2 ORGANIZATIONAL DOCUMENTS. Neither Xxxxxx nor any of its
Subsidiaries shall make or propose any change or amendment in its Organizational
Documents except in connection with an acquisition (by merger, consolidation, or
acquisition of stock or assets or otherwise) of any Person or any equity
interest therein permitted by Section 7.1.9.
7.1.3 SECURITIES. Neither Xxxxxx nor any of its Subsidiaries
shall issue or sell, or authorize the issuance or sale of, any shares of its
capital stock or any of its other securities or issue any securities convertible
into or exchangeable for, or options, warrants to purchase, scrip, rights to
subscribe for, calls or commitments of any character whatsoever relating to, or
enter into any contract, understanding or arrangement with respect to the
issuance of, any shares of its capital stock or any of its other securities, or
enter into any arrangement involving stock appreciation rights or the like, or
enter into any arrangement or contract with respect to the purchase or voting of
shares of its capital stock or adjust, split, combine or reclassify any of its
securities, or make any other changes in its capital structure; provided,
however, that (i) Xxxxxx may issue shares of its common stock pursuant to the
terms of vested and currently exercisable stock options, (ii) Xxxxxx may xxxxx
options in the ordinary course under the Incentive Plan, and
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(iii) Xxxxxx may issue not more than 1,000,000 shares of its common stock in
connection with acquisitions of going concern businesses.
7.1.4 DISTRIBUTIONS. Xxxxxx shall not declare, pay or make any
dividend or other distribution or payment with respect to, or purchase, redeem
or otherwise acquire, any shares of its capital stock (except to the extent
necessary to meet minimum tax withholding obligations in connection with the
exercise of stock options) or otherwise make any payments to stockholders in
their capacity as stockholders.
7.1.5 RELATIONSHIPS. Xxxxxx shall, and shall cause each of its
Subsidiaries to, use all reasonable commercial efforts to preserve intact the
business organization of Xxxxxx and each of its Subsidiaries, to keep available
the services of its and their present officers and key employees, and to
preserve the relationships and good will of customers, suppliers, and others
having business relationships with it and its Subsidiaries such that there shall
be no impairment in their ongoing businesses that has a Material Adverse Effect.
7.1.6 INDEBTEDNESS; GUARANTEES; LIENS. Except with respect to
transactions between and among Xxxxxx and any of its Subsidiaries, the
endorsement of negotiable instruments in the ordinary and usual course of its
business consistent with past practice, or in connection with an acquisition (by
merger, consolidation, or acquisition of stock or assets or otherwise) of any
Person or any equity interest therein, neither Xxxxxx nor any of its
Subsidiaries (i) shall incur, assume, or guarantee any material indebtedness for
money borrowed, (ii) pledge any of the capital stock of any Subsidiary, or (iii)
create or allow to be created or suffer to exist any material Lien upon any of
their material assets, whether tangible or intangible other than Liens
outstanding on the date hereof or pursuant to an agreement in effect on the date
hereof.
7.1.7 DISCHARGE OF LIABILITIES. Xxxxxx shall not and shall not
permit any Subsidiary to pay, discharge or satisfy any material claims,
liabilities or obligations (absolute, accrued, asserted, unasserted, contingent
or otherwise), other than payment, discharge or satisfaction in the ordinary and
usual course of business consistent with past practice, pursuant to contractual
arrangements existing as of the date hereof or as required by Law.
7.1.8 DISPOSITION OF ASSETS. Except in the ordinary and usual
course of business consistent with past practice or in the case of obsolete or
redundant assets, or those requiring replacement, Xxxxxx shall not and shall not
permit any Subsidiary to sell, lease or otherwise dispose of any of its material
assets.
7.1.9 ACQUISITIONS; MATERIAL AGREEMENTS. Except as permitted
by this Agreement or as set forth in Section 7.1.9 of the Xxxxxx Disclosure
Schedules, neither Xxxxxx nor any of its Subsidiaries shall (i) acquire (by
merger, consolidation, or acquisition of stock or assets or otherwise) any
Person or any equity interest therein, (ii) enter into any contract or
agreement, other than in the ordinary and usual course of business consistent
with past practice or amend in any material respect any of the Material
Agreements, or (iii) authorize any new capital expenditure or expenditures
which, individually or in the aggregate, are, or would reasonably be expected to
be material to Xxxxxx.
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7.1.10 ACCOUNTING PRACTICES; REVALUATION OF ASSETS. Except as
may be required as a result of a change in Law or in GAAP, neither Xxxxxx nor
any of its Subsidiaries shall change any of the accounting principles or
practices used by it, or revalue in any material respect any of its assets,
including, without limitation, writing down revenues or accounts receivable
other than in the ordinary and usual course of business consistent with past
practice or as required by GAAP.
7.1.11 LIQUIDATION. Xxxxxx shall not (i) authorize, recommend,
propose or announce an intention to adopt a plan of complete or partial
liquidation or dissolution of Xxxxxx, and (ii) permit any of its Subsidiaries to
authorize, recommend, propose or announce an intention to adopt a plan of
complete or partial liquidation or dissolution of any of such Subsidiaries.
7.1.12 TAX LIABILITIES. Xxxxxx shall not and shall not permit
any of its Subsidiaries to make any material tax elections or settle or
compromise any material income tax liability.
7.1.13 WAIVERS OF RIGHTS; PREPAYMENTS. Other than in the
ordinary and usual course of business consistent with past practice, Xxxxxx
shall not and shall not permit any of its Subsidiaries to waive any material
rights or make any payment, direct or indirect, of any material liability of
Xxxxxx or any of the Subsidiaries before the same comes due in accordance with
its terms.
7.1.14 INSURANCE. Xxxxxx shall not and shall not permit any of
its Subsidiaries to fail to maintain its existing material insurance coverage in
effect or, in the event any such coverage shall be terminated or lapse, to the
extent available at reasonable cost, procure substantially similar substitute
insurance policies that, in all material respects, are in at least such amounts
and against such risks as are currently covered by such policies.
7.1.15 LABOR AGREEMENTS. Xxxxxx shall not and shall not permit
any of its Subsidiaries to enter into any new collective bargaining agreement or
any successor collective bargaining agreement.
7.1.16 SETTLEMENTS. Neither Xxxxxx nor any of its Subsidiaries
shall settle or compromise any pending or threatened suit, action or claim
relating to the transactions contemplated hereby, or settle or compromise any
other pending or threatened suit, action or claim in any manner that has a
Material Adverse Effect.
7.1.17 HINDRANCE OF TAX FREE MERGER. Neither Xxxxxx nor any of
its Subsidiaries shall take any action (including any action otherwise permitted
by this Section 7.1) that would prevent or impede the Merger from qualifying as
a reorganization under Section 368(a) of the Code.
7.1.18 NON-COMPETITION. Neither Xxxxxx nor any of its
Subsidiaries shall enter into any agreement or arrangement that limits or
otherwise restricts Xxxxxx or any of its Subsidiaries or any successor thereto
or that would, after the Effective Time, limit or restrict the Surviving
Corporation and its affiliates or any successor thereto, from engaging or
competing in any line of business or in any geographic area.
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7.1.19 SEVERANCE; EMPLOYMENT AGREEMENTS. Except with prior
approval of the Integration Committee, and except as may be required by
applicable Law, neither Xxxxxx nor any of its Subsidiaries shall take any action
with respect to (i) the grant of any severance or termination pay (otherwise
than pursuant to written plans or agreements of Xxxxxx or any of its
Subsidiaries in effect on the date hereof and made available to Total prior to
the date hereof, (ii) any increase of benefits payable under such written plans
and agreements providing for severance or termination pay in effect on the date
hereof, or (iii) the creation of any employment or consulting agreement or the
like, except for new hire employees or consultants in the ordinary and usual
course of business consistent with past practice whose annual salary does not
exceed $100,000 and whose severance does not exceed six (6) months' base salary.
7.1.20 COMPENSATION. Except with prior approval of the
Integration Committee, neither Xxxxxx nor any of its Subsidiaries shall (except
for salary increases or other employee benefit arrangements in the ordinary and
usual course of business consistent with past practice that do not result in a
material increase in benefits or compensation expense to Xxxxxx or any
Subsidiary) (i) adopt or amend any bonus, profit sharing, compensation, stock
option, pension, retirement, deferred compensation, employment or other employee
benefit plan, agreement, trust, plan, fund or other arrangement for the benefit
or welfare of any employee, (ii) increase in any manner the compensation or
fringe benefits of any employee, or (iii) pay or grant any benefit not required
by any existing plan or arrangement.
7.1.21 OTHER AGREEMENTS AND ACTIONS. Except as provided in
this Section 7.1, neither Xxxxxx nor any of its Subsidiaries shall (i) take,
propose to take, or agree in writing or otherwise to take, any of the actions
described in Sections 7.1.1 through 7.1.20 inclusive, or, (ii) subject to the
terms hereof, any action which would be reasonably likely to result in any of
the conditions to the Merger set forth in Section 9 hereof not being satisfied.
7.2 ACCESS TO INFORMATION. Between the date hereof and the Effective
Time, Xxxxxx will give Total and its authorized representatives (including
counsel, financial advisors and auditors) reasonable access during normal
business hours to all employees, offices, and other facilities and to all books
and records of Xxxxxx and its Subsidiaries, and will cause Xxxxxx' officers and
those of its Subsidiaries to furnish Total with such financial and operating
data and other information with respect to the business, properties and
personnel of Xxxxxx and its Subsidiaries as Total may from time to time
reasonably request, provided that no investigation pursuant to this Section 7.2
shall affect or be deemed to modify any of the representations or warranties
made by Xxxxxx in this Agreement.
7.3 FINANCIAL STATEMENTS. Between the date hereof and the Effective
Time, Xxxxxx shall furnish to Total, (i) concurrently with the delivery thereof
to management, such monthly financial statements and data as Total may
reasonably request and (ii) at the earliest time they are available, such
quarterly and annual financial statements as are prepared for Xxxxxx' SEC
filings, which (in the case of this clause (ii)) shall be in accordance with the
books and records of Xxxxxx.
7.4 LISTING OF STOCK. Xxxxxx shall use its reasonable best efforts to
cause the Xxxxxx Shares to be issued as Merger Consideration and upon the
exercise of the Assumed Stock Options to be approved for listing on the Nasdaq
National Market System on or prior to the Closing Date, subject to official
notice of issuance.
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7.5 RULE 144 REPORTING. From and after the Effective Time, unless and
until each "affiliate" of Total (as such term is defined for purposes of
paragraphs (c) and (d) of Rule 145 under the Securities Act) has disposed of all
the Xxxxxx Shares received by it as Merger Consideration, or such shares are
permitted to be resold pursuant to Rule 145(d)(3) under the Securities Act,
Xxxxxx shall use all reasonable best efforts to make and keep "available
adequate current public information" (as those terms are understood and defined
in Rule 144 under the Securities Act) with respect to Xxxxxx and, upon any
reasonable request by such an affiliate, provide a statement as to such
availability.
7.6 AMENDMENT OF 401(K) PLAN. Xxxxxx shall amend the Xxxxxx Interactive
Inc. 401(k) Plan, effective as of the Effective Time, to be a non-standardized
form of prototype plan and shall exclude Total employees from participation
under such plan. Notwithstanding the foregoing, Xxxxxx may, after the Effective
Time, amend the Xxxxxx Interactive Inc. 401(k) Plan to permit participation by
Total employees, whether as part of the unified program of employee benefits
pursuant to Section 8.14.2 hereof, or otherwise.
SECTION 8 - ADDITIONAL AGREEMENTS
8.1 SEC MATTERS.
8.1.1 PREPARATION OF S-4 AND THE JOINT PROXY
STATEMENT/PROSPECTUS. Xxxxxx and Total will, as promptly as practicable, jointly
prepare and file with the SEC preliminary proxy materials which shall constitute
the Joint Proxy Statement/Prospectus in connection with the respective votes of
the stockholders of Total and Xxxxxx with respect to the Merger, and if the
parties so agree at the time, the S-4. Xxxxxx and Total will, and will cause
their accountants and lawyers to, use all reasonable best efforts to have or
cause the S-4 declared effective as promptly as practicable after filing with
the SEC, including, without limitation, causing their accountants to deliver
necessary or required instruments such as opinions, consents and certificates.
Xxxxxx shall also take any action (other than qualifying to do business in any
jurisdiction in which it is not now so qualified or filing a general consent to
service of process) required to be taken under any applicable state securities
laws in connection with the issuance of Xxxxxx Shares in the Merger, and Total
shall furnish all information concerning Total and the holders of Total Shares
as may be reasonably requested by Xxxxxx in connection with any such action and
the preparation, filing and distribution of the Joint Proxy
Statement/Prospectus. No filing of, or amendment or supplement to, the S-4 will
be made by Xxxxxx, and no filing of, or amendment or supplement to the Joint
Proxy Statement/Prospectus will be made by Total, in each case without providing
the other party a reasonable opportunity to review and comment thereon. If at
any time prior to the Stockholder Meetings any information relating to Total or
Xxxxxx, or any of their respective affiliates, directors or officers, should be
discovered by Total or Xxxxxx which should be set forth in an amendment or
supplement to either the S-4 or the Joint Proxy Statement/Prospectus, so that
either such document would not include any misstatement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, the party
which discovers such information shall promptly notify the other party hereto
and an appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law, disseminated to
the stockholders of Total and Xxxxxx, respectively. The parties shall notify
each other promptly of the receipt of any comments from the SEC or the staff of
the
52
SEC and of any request by the SEC or the staff of the SEC for amendments or
supplements to the Joint Proxy Statement/Prospectus or the S-4 or for additional
information and shall supply each other with copies of (i) all correspondence
between it or any of its representatives, on the one hand, and the SEC or the
staff of the SEC, on the other hand, with respect to the Joint Proxy
Statement/Prospectus, the S-4 or the Merger and (ii) all orders of the SEC
relating to the S-4, and will take any other action required or necessary to be
taken under federal or state securities Laws or otherwise in connection with the
registration process. Total and Xxxxxx each will use its reasonable best efforts
to cause the Joint Proxy Statement/Prospectus to be mailed to its respective
stockholders at the earliest practicable date.
8.1.2 COMPLIANCE. Xxxxxx and Total each shall comply in all
material respects with the Securities Act and the Exchange Act in all matters
related to this Agreement and the Merger, including the requirement that all
public written communications with security holders and the markets related to
the Merger be filed with the SEC no later than the date of first use and include
all required legends and information enumerated in Rule 165 of the Securities
Act and Rule 14a-12 under the Exchange Act.
8.2 LETTER FROM ACCOUNTANTS. If the parties so request, within 30
days prior to the Effective Time, each of Total and Xxxxxx shall use all
reasonable best efforts to cause to be delivered to the other a letter of
their respective independent auditors, dated a date within two business days
before the date on which the S-4 shall become effective and addressed to the
other, in form and substance reasonably satisfactory to the other and
customary in scope and substance for letters delivered by independent public
accountants in connection with registration statements similar to the S-4.
8.3 MEETINGS OF STOCKHOLDERS.
8.3.1 TOTAL MEETING.
(a) Total shall take all lawful action to (i) cause a special meeting
of its stockholders to be duly called and held as soon as practicable after the
date of this Agreement for the purpose of voting on the adoption of this
Agreement, and (ii) solicit proxies from its stockholders to obtain the Required
Total Vote with respect to such adoption.
(b) The Total Board shall recommend adoption of this Agreement by
Total's stockholders and, except as permitted by Section 6.4, the Total Board
shall not withdraw, amend or modify in a manner adverse to Xxxxxx such
recommendation (or announce publicly its intention to do so) notwithstanding (i)
the making of any Total Alternative Transaction, or (ii) any determination by
the Total Board, at any time subsequent to the adoption of this Agreement and of
the Merger by Total stockholders, that this Agreement or the Merger is no longer
advisable.
8.3.2 XXXXXX MEETING. Xxxxxx shall take all lawful action to
(i) cause a special meeting of its stockholders to be duly called and held as
soon as practicable after the date of this Agreement for the purpose of voting
on the adoption of the Merger pursuant to the agreement of merger (within the
meaning of Section 251 of the Corporation Law) contained in this Agreement, and
(ii) solicit proxies from its stockholders to obtain the Required Xxxxxx Vote
with respect to such adoption. The Xxxxxx Board shall recommend approving the
issuance of the
53
Xxxxxx Shares to the Total stockholders in the Merger and the Xxxxxx Board shall
not withdraw, amend or modify in a manner adverse to Total such recommendation
(or announce publicly its intention to do so) notwithstanding any determination
by the Xxxxxx Board, at any time subsequent to adoption of the Agreement and of
the Merger, that this Agreement or the Merger is no longer advisable.
8.4 REASONABLE BEST EFFORTS.
8.4.1 REASONABLE EFFORTS. Subject to the terms and conditions
of this Agreement, each party will use its reasonable best efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable Laws to consummate the
transactions contemplated by this Agreement. Subject to the terms and conditions
of this Agreement, if at any time prior to the Effective Time, any further
action is necessary or desirable to consummate more effectively the actions
contemplated by this Agreement, at the request of the other party hereto and at
the expense of the party so requesting, Xxxxxx, on the one hand, and Total, on
the other hand, shall execute and deliver to such requesting party such
documents and take such other action as such requesting party may reasonably
request.
8.4.2 LITIGATION. In the event any action, suit, claim,
investigation or other proceeding relating to this Agreement, the Merger or the
other transactions contemplated hereby shall be commenced, each of the parties
hereto agrees (subject to the fiduciary obligations of the respective Xxxxxx
Board and Total Board under applicable law as advised by independent legal
counsel) to cooperate with each other party hereto and to use its commercially
reasonable best efforts to respond to and to defend vigorously against such
proceeding.
8.4.3 FILINGS/CONSENTS. Total and Xxxxxx shall cooperate with
one another (i) in connection with the preparation of disclosure and offering
documents, (ii) in determining whether any other action by or in respect of, or
filing with, any Governmental Entity or any actions, consents, approvals or
waivers are required to be obtained from parties to any material contracts in
connection with the consummation of the transactions contemplated by this
Agreement, and (iii) in seeking any such actions, consents, approvals or waivers
or making any such filings, furnishing information required in connection
therewith, and seeking timely to obtain any such actions, consents, approvals or
waivers (including as may be required under Section 8.5).
8.5 ANTITRUST MATTERS. Each of Xxxxxx and Total shall make all
reasonable best efforts to obtain all requisite approvals and authorizations for
the transactions contemplated by this Agreement under any Antitrust Law
including without limitation Xxxx-Xxxxx.
8.5.1 COOPERATION. Each of Xxxxxx and Total shall, in
connection with the efforts to obtain all requisite approvals and authorizations
for the transactions contemplated by this Agreement under any Antitrust Law, use
its reasonable best efforts to (i) cooperate in all respects with each other in
connection with any filing or submission and in connection with any
investigation or other inquiry, including any proceeding initiated by a private
party, and (ii) keep the other party informed in all material respects of any
material communication received by such party from, or given by such party to,
any Governmental Entity (including the FTC and the DOJ)
54
and of any material communication received or given in connection with any
proceeding by a private party, in each case regarding any of the transactions
contemplated hereby, and (iii) permit the other party to review any material
communication given by it to, and consult with each other in advance of any
meeting or conference with, the FTC, the DOJ or any such other Governmental
Entity or, in connection with any proceeding by a private party, with any other
person, and to the extent permitted by the FTC, the DOJ or such other applicable
Governmental Entity or other person, give the other party the opportunity to
attend and participate in such meetings and conferences.
8.5.2 PROCEEDINGS. In furtherance and not in limitation of the
covenants of the parties contained in this Section 8.5, each of Xxxxxx and Total
shall use its reasonable best efforts to resolve such objections if any, as may
be asserted by a Governmental Entity or other person with respect to the
transactions contemplated hereby under any Antitrust Law. In connection with the
foregoing, if any administrative or judicial action or proceeding, including any
proceeding by a private party, is instituted (or threatened to be instituted)
challenging any transaction contemplated by this Agreement as violative of any
Antitrust Law, each of Xxxxxx and Total shall cooperate in all respects with
each other and use its respective reasonable best efforts to contest and resist
any such action or proceeding and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the transactions contemplated by this Agreement.
Notwithstanding the foregoing or any other provision of this Agreement, nothing
in this Section 8.5 shall (i) limit a party's right to terminate this Agreement
pursuant to Section 10 so long as such party has theretofore complied in all
material respects with its obligations under this Section 8.5, or (ii) require
Xxxxxx to (x) enter into any "hold-separate" agreement or other agreement with
respect to the disposition of any assets or businesses of Xxxxxx or any of its
Subsidiaries or Total or any of its Subsidiaries in order to obtain clearance
from the FTC or DOJ or any other Governmental Entity in order to proceed with
the consummation of the transactions contemplated hereby, where such disposition
would reasonably be expected to have a Material Adverse Effect on Xxxxxx or the
Surviving Corporation or (y) consummate the transactions contemplated hereby in
the event that any consent, approval or authorization of any Governmental Entity
obtained or sought to be obtained in connection with this Agreement is
conditioned upon the imposition of any other significant restrictions upon, or
the making of any material accommodation (financial or otherwise) in respect of
the transactions contemplated hereby or the conduct of the business of the
Surviving Corporation (including any agreement not to compete in any geographic
area or line of business) or results, or would result in, the abrogation or
diminishment of any authority or license granted by any Governmental Entity,
where such restrictions, accommodation, abrogation or diminishment would
reasonably be expected to have a Material Adverse Effect on Xxxxxx or the
Surviving Corporation.
8.6 PUBLIC ANNOUNCEMENTS. Neither Xxxxxx nor Total will issue any press
release or otherwise make any public statements with respect to the transactions
contemplated by this Agreement, including the Merger, without the prior consent
of the other; provided, however, that either party may issue a press release or
make public statements with respect to the transactions contemplated by this
Agreement as may be required by applicable Law or Nasdaq Marketplace Rules, as
determined in good faith by Xxxxxx or Total, as the case may be provided that,
if and to
55
the extent reasonably practical, such party consults with the other before
issuing such press release or otherwise making such public statement.
8.7 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE.
8.7.1 ORGANIZATIONAL DOCUMENTS OF SURVIVING CORPORATION. The
provisions with respect to indemnification contained in the Organizational
Documents of the Surviving Corporation shall contain provisions with respect to
indemnification no less favorable than those set forth in the Organizational
Documents of Total on the date of this Agreement, which provisions shall not be
amended, repealed or otherwise modified for a period of six years after the
Effective Time in any manner that would adversely affect the rights thereunder
of individuals who at any time prior to the Effective Time were directors or
officers of Total in respect of actions or omissions occurring at or prior to
the Effective Time (including, without limitation, the transactions contemplated
by this Agreement), unless such modification is required by Law.
8.7.2 INDEMNITY. From and after the Effective Time, Xxxxxx and
the Surviving Corporation shall indemnify, defend and hold harmless the present
and former officers and directors of Total (collectively, the "Indemnified
Parties") against all losses, expenses, claims, damages, liabilities or amounts
that are paid in settlement of, with the approval of the Surviving Corporation
(which approval shall not unreasonably be withheld), or otherwise incurred in
connection with any claim, action, suit, proceeding or investigation (a
"Claim"), based in whole or in part by reason of the fact that such person is or
was a director or officer of Total and arising out of actions, events or
omissions occurring at or prior to the Effective Time (including the
transactions contemplated by this Agreement), in each case to the full extent
permitted under Law or in any applicable contract or agreement (and shall pay
expenses in advance of the final disposition of any such action or proceeding to
each Indemnified Party to the fullest extent permitted under Law, upon receipt
from the Indemnified Party to whom expenses are advanced of the undertaking to
repay such advances contemplated by Section 145(e) of the Corporation Law),
which rights pursuant to such provisions shall survive the Merger and continue
in full force and effect after the Effective Time.
Without limiting the foregoing, in the event any Claim is
brought against any Indemnified Party (whether arising before or after the
Effective Time) after the Effective Time (i) the Indemnified Parties may retain
independent legal counsel satisfactory to them, provided that such other counsel
shall be reasonably acceptable to the Surviving Corporation, (ii) the Surviving
Corporation shall pay all reasonable fees and expenses of such counsel for the
Indemnified Parties promptly as statements therefor are received and (iii) the
Surviving Corporation will use its reasonable best efforts to assist in the
vigorous defense of any such matter, provided that the Surviving Corporation
shall not be liable for any settlement of any Claim effected without its written
consent, which consent shall not be unreasonably withheld. Any Indemnified Party
wishing to claim indemnification under this Section 8.7 upon learning of any
such Claim shall promptly notify the Surviving Corporation (although the failure
so to notify the Surviving Corporation shall not relieve the Surviving
Corporation from any liability that the Surviving Corporation may have under
this Section 8.7, except to the extent such failure materially prejudices the
Surviving Corporation's position with respect to such Claim), and shall deliver
to the Surviving Corporation the undertaking contemplated by Section 145(e) of
the Corporation Law. The Indemnified Parties as a group may retain no more than
one law firm (in
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addition to local counsel) to represent them with respect to each such matter
unless there is, under applicable standards of professional conduct (as
determined by counsel to the Indemnified Parties), an actual conflict between
the interests of any two or more Indemnified Parties, in which event such
additional counsel as may be required may be retained by the Indemnified
Parties.
8.7.3 DIRECTOR'S AND OFFICER'S INSURANCE. For a period of six
years after the Effective Time, Xxxxxx and the Surviving Corporation shall cause
to be maintained in effect the liability insurance policies for directors and
officers that are currently maintained by Total with respect to Claims arising
from facts or events that occurred before the Effective Time (provided that
Xxxxxx may substitute therefor policies of at least the same coverage and
amounts containing terms and conditions that are no less advantageous in any
material respect to the Indemnified Parties). Notwithstanding the foregoing,
Xxxxxx shall not be required to pay an annual premium for such insurance in
excess of 200% of the last annual premium paid by Total prior to the date
hereof, but in such case shall purchase as much coverage as possible for such
amount.
8.7.4 FINAL ORDERS. Total and Xxxxxx shall have no obligation
under this Section 8.7 to any Indemnified Party when and if a court of competent
jurisdiction shall ultimately determine, and such determination shall have
become final and non-appealable, that indemnification of such Indemnified Party
in the manner contemplated hereby is prohibited by applicable Law. In the event
that it shall be determined in a final and non-appealable judicial proceeding
that a person who has received advance payments of expenses or putative
indemnification sums pursuant to this Section 8.7 shall not be entitled to
indemnification hereunder such person shall repay to Xxxxxx or Total, as the
case may be, all such expenses and sums promptly following such determination.
8.7.5 THIRD PARTY BENEFICIARIES. Each Indemnified Party shall
have rights as a third party beneficiary under this Section 8.7 as separate
contractual rights for his or her benefit and such right shall be enforceable by
such Indemnified Party, its heirs and personal representatives and shall be
binding on Xxxxxx and the Surviving Corporation and its successors and assigns.
8.8 NOTIFICATION. Each of Total and Xxxxxx shall, upon obtaining
knowledge of any of the following, give prompt notice to the other, of (i) the
occurrence or non-occurrence of any event the occurrence or non-occurrence of
which would be likely to cause any condition to the obligations of any party to
effect the transactions contemplated hereby not to be satisfied, (ii) any notice
of, or other communication relating to, a default or event which, with notice or
lapse of time or both, would become a default, received by it or any of its
Subsidiaries subsequent to the date of this Agreement and prior to the Effective
Time, under any Material Agreement that would reasonably be expected to have a
Material Adverse Effect on the applicable party, (iii) any notice or other
communication from any Governmental Entity in connection with the Merger, (iv)
any actions, suits, claims, investigations or other proceedings (or
communications indicating that the same may be contemplated) commenced or
threatened against the applicable party or any of its Subsidiaries which, if
pending on the date of this Agreement, would have been required to have been
disclosed pursuant to Sections 4.5, 4.11, 5.5, and 5.11 respectively, or which
relate to the consummation of the Merger, (v) any notice or other communication
from any third party alleging that the consent of such third party is or may be
required in connection with the
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transactions contemplated by this Agreement, or (vi) any event or occurrence
that is, or would reasonably be likely to be, a Material Adverse Effect with
respect to such party; provided, however, that the delivery of any notice
pursuant to this Section 8.8 shall not cure such breach or non-compliance or
limit or otherwise affect the remedies available hereunder to the party
receiving such notice; and PROVIDED FURTHER that failure to give such notice
shall not be treated as a breach of the Agreement for the purposes of Sections
9.2.2, 9.3.2, 10.3.1 or 10.4.1 unless the failure to give such notice results in
material prejudice to the other party.
8.9 AFFILIATES. Section 8.9 of the Total Disclosure Schedule sets forth
a list of all persons who are, and all persons who to Total's knowledge will be
at the Total Stockholders Meeting, "affiliates" of Total for purposes of Rule
145 under the Securities Act and applicable SEC rules. Total will cause such
lists to be updated promptly through the Total Stockholders Meeting. Total shall
use its reasonable best efforts to cause each of its "affiliates" to deliver to
Xxxxxx at or prior to the Total Stockholders Agreement either a Voting Agreement
as described in Section 4.25 or a written agreement substantially in the form
attached as EXHIBIT A.
8.10 TAKEOVER STATUTES. If any "moratorium", "control share", "fair
price", "affiliate transaction", "business combination" or other antitakeover
Law is or may become applicable to the Merger, each of Xxxxxx and Total shall
take such actions as are necessary so that the transactions contemplated by this
Agreement may be consummated as promptly as practicable on the terms
contemplated hereby and otherwise act to eliminate or minimize the effects of
such Law on the Merger.
8.11 TAX TREATMENT. Each of Xxxxxx, Merger Sub and Total shall use its
best efforts to cause the Merger to qualify, and will not take or fail to take
any actions which could reasonably be expected to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code.
To the extent required by the Code or the regulations thereunder, Xxxxxx shall,
and shall cause the Surviving Corporation to report the Merger for income tax
purposes as a reorganization within the meaning of Section 368(a) of the Code.
Xxxxxx shall include as an exhibit to the S-4 tax opinions of Xxxxxx
Beach LLP and Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, in form and substance
reasonably satisfactory to Xxxxxx and to Total, on the basis of customary
representations, warranties and covenants of Xxxxxx, Total and their respective
affiliates and assumptions set forth in such opinions, to the effect that the
Merger will constitute a reorganization within the meaning of Section 368(a) of
the Code, and that each of Xxxxxx, Merger Sub and Total will be a party to the
reorganization within the meaning of Section 368(b) of the Code.
Each of Xxxxxx and Total shall make, and shall cause their affiliates
to make, such representations, warranties and covenants as shall be requested
reasonably in the circumstances by Xxxxxx Beach LLP and Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP in order for such firms to render their opinions referred to above
and in Section 9.1.6.
8.12 INTEGRATION COMMITTEE. Upon the execution of this Agreement, the
parties agree that they will establish an integration committee (the
"Integration Committee") comprised of Xxxxxx X. Xxxxxx, Xxxxxx X. Black,
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Xxxxx Xxxxxxx, Xxxxx X. Xxxxxxx, and Xxxxxx X. Xxxxxxx whose purpose and power
shall be overseeing the integration of Xxxxxx and Total and addressing the
matters described in Sections 6.1 and 7.1 of this Agreement.
8.13 DIRECTOR RE-ELECTION. Subject to the applicable fiduciary
obligations of the Xxxxxx Board and in the case of Xxxxxx Xxxxxxxxx, subject to
his continued employment by Xxxxxx at the time of re-nomination, Xxxxxx shall
use its best efforts to have the Expansion Directors nominated for re-election
at the next upcoming Xxxxxx annual stockholders meeting at which such
individual's class is up for re-election.
8.14 EMPLOYEE BENEFITS.
8.14.1 CONTINUATION OF BENEFITS. From the Effective Time
through the time that the unified program of employee benefits is implemented as
contemplated by Section 8.14.2, (the "Benefits Continuation Period"), the
Surviving Corporation shall provide each person who, as of the Effective Time,
is an employee of Total or a Subsidiary of Total (a "Total Employee") with
salary, bonus opportunity and other employee benefits that are no less favorable
than those provided to such Total Employee immediately prior to the Effective
Time; provided, however, that subject to the foregoing, the Surviving
Corporation shall have the right to amend any Total Benefit Plans in effect as
of the Effective Time.
8.14.2 UNIFIED BENEFIT PROGRAM. During the six-month period
following the Effective Time, the Xxxxxx Board shall develop and implement a
unified program of employee benefits that will provide equivalent employee
benefits to all similarly situated employees of Xxxxxx and its Subsidiaries,
including the Surviving Corporation.
SECTION 9 - CONDITIONS TO CONSUMMATION OF THE MERGER
9.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS TO EFFECT THE MERGER. The
respective obligations of each party to consummate the transactions contemplated
by this Agreement are subject to the fulfillment at or prior to the Effective
Time of each of the following conditions, any or all of which may be waived in
whole or in part by the party being benefited thereby, to the extent permitted
by applicable Law:
9.1.1 CONSENTS OF STOCKHOLDERS. The agreement of merger
(within the meaning of Section 251 of the Corporation Law) contained within this
Agreement shall have been approved and adopted by the Required Total Vote and
the Required Xxxxxx Vote.
9.1.2 NO RESTRAINT. No Governmental Entity shall have enacted,
issued, or enforced any Law (including any decree, injunction, or order) that
materially restricts or prohibits the consummation of the Merger, and no
Governmental Entity shall have instituted any judicial or administrative
proceeding which continues to be pending seeking to materially restrict or
prohibit consummation of the Merger.
9.1.3 CONSENTS. All authorizations, consents, orders, or
approvals of, and all expirations of any waiting periods imposed by any
Governmental Entity that are necessary for
59
consummation of the Merger, other than immaterial consents the failure to obtain
which would not have a Material Adverse Effect on the Surviving Corporation,
shall have been obtained and shall be in full force and effect at the Effective
Time.
9.1.4 REGISTRATION. The S-4 shall have been declared effective
by the SEC and shall be effective under the Securities Act at the Effective
Time, and no stop order suspending effectiveness shall have been issued, no
action, suit, proceeding or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be continuing, and all
necessary approvals under state securities Laws relating to the issuance of the
Xxxxxx common stock which constitutes the Merger Consideration shall have been
received.
9.1.5 LISTING OF XXXXXX STOCK. The Xxxxxx common stock
required to be issued as Merger Consideration hereunder and upon the exercise of
the Assumed Stock Options shall have been approved for listing on the Nasdaq
National Markets System, subject only to official notice of issuance.
9.1.6 TAX OPINIONS. Total shall have received a written
opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, and Xxxxxx shall have received a
written opinion of Xxxxxx Beach LLP, in form and substance reasonably
satisfactory to Xxxxxx and Total, delivered as of the date of the Effective Time
and on the basis of customary representations, warranties and covenants of
Xxxxxx, Total and their affiliates and assumptions set forth in such opinions,
to the effect that the Merger will constitute a reorganization within the
meaning of Section 368(a) of the Code, and that each of Xxxxxx, Merger Sub and
Total will be a party to the reorganization within the meaning of Section 368(b)
of the Code.
9.2 CONDITIONS TO THE OBLIGATIONS OF XXXXXX. The obligations of Xxxxxx
to consummate the transactions contemplated by this Agreement are subject to the
fulfillment at or prior to the Effective Time of each of the following
additional conditions, any or all of which may be waived in whole or part by
Xxxxxx to the extent permitted by applicable Law:
9.2.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Total contained herein that are qualified by Material Adverse
Effect, shall have been true and, the representations and warranties that are
not so not qualified, shall have been true, except where the failure to be true
does not have, and is not reasonably expected to have, a Material Adverse Effect
on Total, in each case when made and on and as of the Effective Time as though
made on and as of the Effective Time (except for (i) changes contemplated by
this Agreement, including Section 6.1, and (ii) representations and warranties
made as of a specified date, which need be true, or true as qualified above, as
the case may be, only as of the specified date).
9.2.2 PERFORMANCE. Total shall have performed or complied in
all material respects with all agreements and conditions contained herein
required to be performed or complied with by it prior to or at the time of the
Effective Time; provided, however, that unless Total knowingly breaches Section
6.1.21, Total shall be deemed to have complied with Section 6.1.21 unless the
failure to comply with such section also results in the failure of the condition
set forth in Section 9.2.1.
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9.2.3 OFFICER'S CERTIFICATE. Total shall have delivered to
Xxxxxx a certificate of Total, dated the date of the Closing, signed by the
Chief Executive Officer or President of Total, certifying as to the fulfillment
of the conditions specified in Sections 9.2.1 and 9.2.2.
9.2.4 CONSENTS. All material authorizations, consents or
approvals of a Governmental Entity (other than those specified in Section 9.1.3
hereof) required to be obtained by Total for the lawful execution and delivery
of this Agreement and the performance of Total's obligations hereunder, shall
have been made or obtained (without any limitation, restriction or condition
that has or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Surviving Corporation), except for
such authorizations, consents or approvals, the failure of which to have been
made or obtained does not, and would not reasonably be expected to, have
individually or in the aggregate, a Material Adverse Effect on the Surviving
Corporation. Except as set forth in Section 9.2.4 of the Total Disclosure
Schedule, all material authorizations, consents or approvals of any other Person
with respect to any Material Agreement of Total required such that the execution
and delivery of this Agreement and the performance of the obligations hereunder
do not and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Surviving Corporation, shall have
been made or obtained (without any limitation, restriction or condition that has
or would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on the Surviving Corporation).
9.3 CONDITIONS TO THE OBLIGATIONS OF TOTAL. The obligations of Total to
consummate the transactions contemplated by this Agreement are subject to the
fulfillment at or prior to the Effective Time of each of the following
conditions, any or all of which may be waived in whole or in part by Total to
the extent permitted by applicable Law:
9.3.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Xxxxxx contained herein that are qualified by Material Adverse
Effect, shall have been true and, the representations and warranties that are
not so not qualified, shall have been true, except where the failure to be true
does not have, and is not reasonably expected to have, a Material Adverse Effect
on Xxxxxx, in each case when made and on and as of the Effective Time as though
made on and as of the Effective Time (except for (i) changes contemplated by
this Agreement, including Section 7.1, and (ii) representations and warranties
made as of a specified date, which need be true, or true as qualified above, as
the case may be, only as of the specified date).
9.3.2 PERFORMANCE. Xxxxxx shall have performed or complied in
all material respects with all agreements and conditions contained herein
required to be performed or complied with by it prior to or at the time of the
Effective Time; provided, however, that unless Xxxxxx knowingly breaches Section
7.1.16, Xxxxxx shall be deemed to have complied with Section 7.1.16 unless the
failure to comply with such section also results in the failure of the condition
set forth in Section 9.3.1.
9.3.3 OFFICER'S CERTIFICATE. Xxxxxx shall have delivered to
Total a certificate of Xxxxxx, dated the date of the Closing, signed by the
Chief Executive Officer or President of Xxxxxx, certifying as to the fulfillment
of the conditions specified in Sections 9.3.1 and 9.3.2.
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9.3.4 CONSENTS. All material authorizations, consents or
approvals of a Governmental Entity (other than those specified in Section 9.1.3
hereof) required to be obtained by Xxxxxx for the lawful execution and delivery
of this Agreement and the performance of Xxxxxx' obligations hereunder, shall
have been made or obtained (without any limitation, restriction or condition
that has or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Surviving Corporation), except for
such authorizations, consents or approvals, the failure of which to have been
made or obtained does not and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on the Surviving
Corporation. All material authorizations, consents or approvals of any other
Person with respect to any Material Agreement of Xxxxxx required such that the
execution and delivery of this Agreement and the performance of the obligations
hereunder do not and would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect on the Surviving Corporation, shall
have been made or obtained (without any limitation, restriction or condition
that has or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Surviving Corporation).
SECTION 10 - TERMINATION
10.1 TERMINATION BY MUTUAL AGREEMENT. This Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time, whether
before or after the approval of the Merger by the Required Total Vote and the
Required Xxxxxx Vote, by mutual written consent of Total and Xxxxxx by action of
their respective Boards of Directors.
10.2 TERMINATION BY EITHER XXXXXX OR TOTAL. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time, whether before or after the approval of the Merger by the Required Total
Vote and the Required Xxxxxx Vote, by action of the Board of Directors of either
Xxxxxx or Total under any of the following circumstances:
10.2.1 TERMINATION DATE. The Merger shall not have been
consummated by the Termination Date; provided, however, that the right to
terminate this Agreement under this Section 10.2.1 shall not be available to any
party whose action or failure to act has been a principal cause of or resulted
in the failure of the Merger to be consummated on or before such date.
10.2.2 REQUIRED TOTAL VOTE. The Required Total Vote shall not
have been obtained at the Total Stockholders Meeting or at any adjournment or
postponement thereof.
10.2.3 REQUIRED XXXXXX VOTE. The Required Xxxxxx Vote shall
not have been obtained at the Xxxxxx Stockholders Meeting or at any adjournment
or postponement thereof.
10.2.4 LEGAL RESTRAINT. Any Law (including any decree,
injunction, or order) permanently restraining, enjoining or otherwise
prohibiting consummation of the Merger shall become final and non-appealable;
provided, however, that the right to terminate this Agreement pursuant to this
Section 10.2.4 shall not be available to any party that has breached in any
material respect its obligations under this Agreement in any manner that shall
have proximately contributed to the failure of the Merger to be consummated.
10.3 TERMINATION BY TOTAL.
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10.3.1 XXXXXX BREACH. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time by action of the
Total Board if there is a breach by Xxxxxx of any representation, warranty,
covenant or agreement contained in this Agreement that would give rise to a
failure of a condition set forth in Section 9.3.1 or 9.3.2, which has not been
cured (or is not capable of being cured) within ten business days following
receipt by Xxxxxx of written notice of such breach, provided that Total may not
terminate this Agreement pursuant to this Section 10.3.1 if Total is in material
breach of this Agreement.
10.3.2 SUPERIOR TOTAL PROPOSAL. This Agreement may be
terminated by Total and the Merger may be abandoned by Total at any time prior
to the Required Total Vote Time in accordance with Section 6.4(c) hereof;
provided, however, that the right to terminate this Agreement pursuant to this
Section 10.3.2 shall not be available if Total has breached in any material
respect Section 6.4 hereof.
10.3.3 WITHDRAWAL OF RECOMMENDATION. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time by action of the Total Board if the Xxxxxx Board, whether or not permitted
to do so by this Agreement, shall have withdrawn or adversely modified its
approval, or recommendation of this Agreement or the Merger, or shall have
failed to call the Xxxxxx Stockholders Meeting or to solicit proxies from its
stockholders in connection therewith.
10.4 TERMINATION BY XXXXXX.
10.4.1 TOTAL BREACH. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time by action of the
Xxxxxx Board if there is a breach by Total of any representation, warranty,
covenant or agreement contained in this Agreement that would give rise to a
failure of a condition set forth in Section 9.2.1 or 9.2.2, which has not been
cured (or is not capable of being cured) within ten business days following
receipt by Total of written notice of such breach, provided that Xxxxxx may not
terminate this Agreement pursuant to this Section 10.4.1 if Xxxxxx is in
material breach of this Agreement.
10.4.2 WITHDRAWAL OF RECOMMENDATION. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time by action of the Xxxxxx Board if the Total Board, whether or not permitted
to do so by this Agreement, shall have withdrawn or adversely modified its
approval, or recommendation of this Agreement or the Merger, or shall have
failed to call the Total Stockholders Meeting or to solicit proxies from its
stockholders in connection therewith.
10.5 EFFECT OF TERMINATION AND ABANDONMENT.
10.5.1 AGREEMENT TERMINATED. In the event of termination of
this Agreement and the abandonment of the Merger pursuant to this Section 10 by
Total, on the one hand, or Xxxxxx, on the other hand, written notice thereof
shall forthwith be given to the other party specifying the provision hereof
pursuant to which such termination is made, and this Agreement (other than this
Section 10.5 and 11) shall become void, and of no effect with no liability on
the part of any party hereto (or of any of its directors, officers, employees,
agents, legal and financial advisors or other representatives); provided,
however, no such termination shall relieve any party hereto of any
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liability or damages resulting from any willful breach of any representation,
warranty, covenant or agreement contained in this Agreement. If this Agreement
is terminated as provided herein, each party shall use all commercially
reasonable efforts to redeliver all documents, work papers and other material
(including any copies, summaries or analyses thereof) of any other party
relating to the transactions contemplated hereby, whether obtained before or
after the execution hereof, to the party furnishing the same.
10.5.2 TERMINATION FEE. In the event that (i) this Agreement
is terminated by Total pursuant to Section 10.3.2, or (ii) this Agreement is
terminated by Xxxxxx pursuant to Section 10.4.2, or (iii)(A) a Total Takeover
Proposal shall have been made to Total or shall have been made directly to the
stockholders of Total generally or shall have otherwise become publicly known or
any Person shall have publicly announced an intention (whether or not
conditional) to make a Total Takeover Proposal, (B) this Agreement is terminated
by either Xxxxxx or Total pursuant to Section 10.2.1 or Section 10.2.2, and (C)
within nine months after such termination, Total enters into a definitive
agreement to consummate, or consummates, the transactions contemplated by any
Total Takeover Proposal, then Total shall (i) pay Xxxxxx a fee equal to
$1,250,000 (the "Total Termination Fee") and (ii) reimburse Xxxxxx in
immediately available funds for the out-of-pocket expenses of Xxxxxx (including,
without limitation, fees and expenses of counsel and accountants and
out-of-pocket expenses (but not fees) of financial advisors) in an aggregate
amount not to exceed $500,000 in connection with this Agreement or the
transactions contemplated hereby, in each case by wire transfer of same-day
funds, on the date of the first to occur of the events referred to in clause
(i), (ii), or (iii)(C).
10.5.3 PAYMENT OF EXPENSES IN CONNECTION WITH TOTAL BREACH.
Without limiting any other right or remedy of Xxxxxx, Total agrees that if this
Agreement is terminated pursuant to Section 10.4.1 hereof, Total will pay to
Xxxxxx, as promptly as practicable but in no event later than two business days
following termination of this Agreement, the amount of all documented and
reasonable costs and expenses, up to a maximum amount of $625,000, incurred by
Xxxxxx and Merger Sub (including but not limited to fees and expenses of
counsel, accountants, and financial advisors) in connection with this Agreement
or the transactions contemplated hereby.
10.5.4 PAYMENT OF EXPENSES IN CONNECTION WITH XXXXXX BREACH.
Without limiting any other right or remedy of Total, Xxxxxx agrees that if this
Agreement is terminated pursuant to Section 10.3.1 hereof, Xxxxxx will pay to
Total, as promptly as practicable but in no event later than two business days
following termination of this Agreement, the amount of all documented and
reasonable costs and expenses, up to a maximum amount of $625,000, incurred by
Total (including but not limited to fees and expenses of counsel, accountants,
and financial advisors) in connection with this Agreement or the transactions
contemplated hereby.
10.5.5 INTEGRAL PART OF AGREEMENT. Each of Xxxxxx and Total
acknowledge that the agreements contained in this Section 10.5 are an integral
part of the transactions contemplated by this Agreement, and that without these
agreements neither party would have entered into this Agreement. Each party
respectively agrees to pay any costs and expenses of the other, including fees,
disbursements and charges of counsel to the other, of enforcing its rights under
this Section 10.5 in the event of any failure by the other to honor its
obligations hereunder.
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10.5.6 CONFIDENTIALITY AGREEMENT. The Confidentiality
Agreement shall survive termination of this Agreement in accordance with its
terms.
SECTION 11 - MISCELLANEOUS
11.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) None of the representations, warranties, covenants and agreements
in this Agreement or in any exhibit, schedule or instrument delivered pursuant
to this Agreement shall survive beyond the Effective Time; provided, however,
that this Section 11.1 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time.
(b) Any disclosure made with reference to one or more Sections of the
Total Disclosure Schedule or the Xxxxxx Disclosure Schedule shall not be deemed
disclosed with respect to any other section therein, provided that either party
may incorporate disclosures by cross reference to other sections of the
schedule. Disclosure of any matter in the Total Disclosure Schedule or the
Xxxxxx Disclosure Schedule shall not be deemed an admission that such matter is
material.
11.2 CONFIDENTIALITY AGREEMENT. The Confidentiality Agreement is
incorporated into this Agreement by reference and the terms thereof shall be
deemed to be part hereof.
11.3 ENTIRE AGREEMENT. This Agreement (including the schedules)
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.
11.4 EXPENSES. Except as provided in Section 10.5, all Expenses
incurred in connection with this Agreement, the Merger, and the other
transactions contemplated by this Agreement shall be paid by the party incurring
such Expenses, whether or not the Merger is consummated, except that, if the
Merger is not consummated, each of Xxxxxx and Total shall bear and pay one-half
of (i) the Expenses incurred in connection with filing, printing, and mailing
the S-4 and Joint Proxy Statement/Prospectus, and (ii) the filing fees for the
premerger notification and report forms under Xxxx-Xxxxx and any similar foreign
antitrust laws.
11.5 ASSIGNMENTS; SUCCESSORS; PARTIES IN INTEREST. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by operation of Law (including, but not limited to, by merger or
consolidation) or otherwise. Any assignment in violation of the preceding
sentence shall be void. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
11.6 AMENDMENT.
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11.6.1 WRITING REQUIRED. This Agreement may not be amended
except by an instrument in writing signed on behalf of the parties hereto.
11.6.2 AMENDMENT AFTER STOCKHOLDER ACTION. This Agreement may
be amended by action taken by Total and Xxxxxx at any time before or after
approval of the Merger by the Required Total Vote and Required Xxxxxx Vote, but,
after any such approval, no amendment shall be made which requires the approval
of such stockholders under applicable Law without such approval.
11.7 EXTENSION; WAIVER. At any time prior to the Effective Time, each
party hereto may (i) extend the time for the performance of any of the
obligations or other acts of the other party, (ii) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by the other party with any of the agreements or conditions contained
herein. Any agreement on the part of either party hereto to any such extension
or waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of either party hereto to assert any of its
rights hereunder shall not constitute a waiver of such rights, and no single or
partial exercise of any right, remedy, power or privilege shall preclude any
other or further exercise thereof by either party.
11.8 NOTICES. All notices, requests, instructions or other documents to
be given under this Agreement shall be in writing and shall be deemed given, (i)
five business days following sending by registered or certified mail, postage
prepaid, (ii) when sent if sent by facsimile, provided that the fax is promptly
confirmed by telephone confirmation thereof, (iii) when delivered, if delivered
personally to the intended recipient and (iv) one business day following sending
by overnight delivery via a national courier service, and in each case,
addressed to a party at the following address for such party:
If to Xxxxxx: Xxxxxx Interactive Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: 000-000-0000
With a copy to: Xxxxxx Beach LLP
000 X. Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Xxxxxxx, Esq.
Facsimile: 000-000-0000
If to Total: Total Research Corporation
0 Xxxxxxxxxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
Facsimile: 000-000-0000
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With a copy to: Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York (except to the
extent that provisions of the Corporation Law are mandatorily applicable),
without giving effect to the choice of Law principles thereof.
11.10 DESCRIPTIVE HEADINGS. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
11.11 SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
11.12 ENFORCEMENT; JURISDICTION. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any court of
the United States located in the State of New York or in New York state court,
this being in addition to any other remedy to which they are entitled at Law or
in equity. In addition, each of the parties hereto (a) consents to submit itself
to the personal jurisdiction of any federal court located in the State of New
York or any New York state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (c) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated hereby
in any court other than a federal or state court sitting in the State of New
York.
11.13 JOINT WORK PRODUCT. The parties have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and no presumption
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or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provisions of this Agreement.
11.14 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties. Signed facsimile copies
of this Agreement will legally bind the parties to the same extent as original
documents.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed on its behalf as of the day and year first above written.
XXXXXX INTERACTIVE INC.
By: /s/ Xxxxxx X. Black
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Its: Chairman and Chief Executive Officer
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TOTAL RESEARCH CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its: President and Chief Executive Officer
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TOTAL MERGER SUB INC.
By: /s/ Xxxxxx X. Black
------------------------------------
Its: Chairman and Chief Executive Officer
------------------------------------
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