Exhibit 1
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AGREEMENT AND PLAN OF MERGER
by and among
SUNSHINE ACQUISITION CORPORATION,
SUNSHINE MERGER CORPORATION
and
SS&C TECHNOLOGIES, INC.
Dated as of July 28, 2005
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TABLE OF CONTENTS
ARTICLE I. THE MERGER.......................................................1
SECTION 1.01 The Merger.............................................1
SECTION 1.02 Closing................................................1
SECTION 1.03 Effective Time.........................................2
SECTION 1.04 Effect of the Merger...................................2
SECTION 1.05 Certificate of Incorporation; Bylaws...................2
SECTION 1.06 Directors and Officers.................................2
ARTICLE II. CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES..............2
SECTION 2.01 Conversion of Securities...............................2
SECTION 2.02 Exchange of Certificates...............................3
SECTION 2.03 Stock Transfer Books...................................5
SECTION 2.04 Options and Warrants...................................5
SECTION 2.05 Dissenting Shares......................................6
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................6
SECTION 3.01 Organization and Qualification.........................7
SECTION 3.02 Certificate of Incorporation and Bylaws................7
SECTION 3.03 Capitalization.........................................7
SECTION 3.04 Authority Relative to This Agreement...................9
SECTION 3.05 No Conflict; Required Filings and Consents.............9
SECTION 3.06 Permits; Compliance...................................10
SECTION 3.07 SEC Filings; Financial Statements; Undisclosed
Liabilities...........................................11
SECTION 3.08 Affiliate Transactions................................12
SECTION 3.09 Absence of Certain Changes or Events..................12
SECTION 3.10 Absence of Litigation.................................13
SECTION 3.11 Employee Benefit Plans................................13
SECTION 3.12 Labor and Employment Matters..........................15
SECTION 3.13 Real Property.........................................15
SECTION 3.14 Intellectual Property.................................16
SECTION 3.15 Taxes.................................................18
SECTION 3.16 Environmental Matters.................................19
SECTION 3.17 Specified Contracts...................................19
SECTION 3.18 Insurance.............................................22
SECTION 3.19 Board Approval; Vote Required.........................22
SECTION 3.20 Opinions of Financial Advisors........................23
SECTION 3.21 Brokers...............................................23
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER CO.........23
SECTION 4.01 Corporate Organization................................23
SECTION 4.02 Certificate of Incorporation and Bylaws...............23
SECTION 4.03 Authority Relative to This Agreement..................23
SECTION 4.04 No Conflict; Required Filings and Consents............24
SECTION 4.05 Absence of Litigation.................................24
SECTION 4.06 Operations of Merger Co...............................25
SECTION 4.07 Financing.............................................25
SECTION 4.08 Guarantee.............................................25
SECTION 4.09 Brokers...............................................25
SECTION 4.10 Ownership of Company Common Stock.....................25
ARTICLE V. CONDUCT OF BUSINESS PENDING THE MERGER..........................26
SECTION 5.01 Conduct of Business by the Company Pending the
Merger................................................26
ARTICLE VI. ADDITIONAL AGREEMENTS..........................................29
SECTION 6.01 Proxy Statement; Other Filings........................29
SECTION 6.02 Company Stockholders' Meeting.........................30
SECTION 6.03 Access to Information; Confidentiality................31
SECTION 6.04 Acquisition Proposals.................................31
SECTION 6.05 Directors' and Officers' Indemnification and
Insurance.............................................34
SECTION 6.06 Employee Benefits Matters.............................35
SECTION 6.07 Notification of Certain Matters.......................36
SECTION 6.08 Financing.............................................36
SECTION 6.09 Further Action; Reasonable Best Efforts...............38
SECTION 6.10 Public Announcements..................................38
SECTION 6.11 Resignations..........................................38
ARTICLE VII. CONDITIONS TO THE MERGER......................................39
SECTION 7.01 Conditions to the Obligations of Each Party...........39
SECTION 7.02 Conditions to the Obligations of Parent and
Merger Co.............................................39
SECTION 7.03 Conditions to the Obligations of the Company..........40
ARTICLE VIII. TERMINATION, AMENDMENT AND WAIVER............................41
SECTION 8.01 Termination...........................................41
SECTION 8.02 Effect of Termination.................................42
SECTION 8.03 Fees and Expenses.....................................42
SECTION 8.04 Amendment.............................................44
SECTION 8.05 Waiver................................................44
ARTICLE IX. GENERAL PROVISIONS.............................................44
SECTION 9.01 Non-Survival of Representations, Warranties and
Agreements............................................44
SECTION 9.02 Notices...............................................44
SECTION 9.03 Certain Definitions...................................45
SECTION 9.04 Severability..........................................50
SECTION 9.05 Entire Agreement; Assignment..........................50
SECTION 9.06 Parties in Interest...................................50
SECTION 9.07 Governing Law.........................................51
SECTION 9.08 Specific Performance; Submission to Jurisdiction......51
SECTION 9.09 Waiver of Jury Trial..................................51
SECTION 9.10 Headings..............................................52
SECTION 9.11 Counterparts..........................................52
AGREEMENT AND PLAN OF MERGER, dated as of July 28, 2005 (this
"Agreement"), between SUNSHINE ACQUISITION CORPORATION, a Delaware corporation
("Parent"), SUNSHINE MERGER CORPORATION, a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Co"), and SS&C Technologies, Inc., a
Delaware corporation (the "Company").
WHEREAS, the respective Boards of Directors of each of the Company, Parent
and Merger Co deem it in the best interests of their respective stockholders to
consummate the merger (the "Merger"), on the terms and subject to the conditions
set forth in this Agreement, of Merger Co with and into the Company, and such
Boards of Directors have approved this Agreement and declared its advisability
(and, in the case of the Board of Directors of the Company (the "Company
Board"), recommended that this Agreement be adopted by the Company's
stockholders);
WHEREAS, concurrently with the execution and delivery of this Agreement
and as a condition to Parent's and Merger Co's willingness to enter into this
Agreement, Xxxxxxx X. Xxxxx (the "Principal Stockholder"), the Company, Parent
and Merger Co will enter into a voting agreement (the "Voting Agreement"),
pursuant to which, among other things, the Principal Stockholder will agree to
vote his Shares (as defined herein) in favor of approval and adoption of this
Agreement and the transactions contemplated hereby (including the Merger), upon
the terms and subject to the conditions set forth in the Voting Agreement; and
WHEREAS, concurrently with the execution and delivery of this Agreement
and as a condition to the willingness of Parent and Merger Co to enter into this
Agreement, the Principal Stockholder is entering into a Contribution and
Subscription Agreement with Parent (the "Contribution Agreement"), pursuant to
which the Principal Stockholder will exchange a portion of his Shares for shares
of capital stock of Parent immediately prior to the Effective Time (as defined
herein).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Parent, Merger Co and the Company hereby agree as follows:
ARTICLE I.
THE MERGER
SECTION 1.01 The Merger. Upon the terms and subject to the conditions set
forth in Article VII, and in accordance with the General Corporation Law of the
State of Delaware (the "DGCL"), at the Effective Time, Merger Co shall be merged
with and into the Company. At the Effective Time, the separate corporate
existence of Merger Co shall cease and the Company shall continue as the
surviving corporation of the Merger (the "Surviving Corporation").
SECTION 1.02 Closing. Unless this Agreement shall have been terminated in
accordance with Section 8.01, and subject to the satisfaction or waiver of the
conditions set forth in Article VII, the closing of the Merger (the "Closing")
will take place at 11:00 a.m., New York time, on a date no later than the last
day of the first period of ten consecutive business days
following the Stockholder Approval, which date shall be specified by Parent on
no less than three business days' notice to the Company, at the offices of
Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX, 00000-0000,
unless another time, date and/or place is agreed to in writing by Parent and the
Company (the date on which the Closing occurs, the "Closing Date").
SECTION 1.03 Effective Time. Upon the terms and subject to the conditions
set forth in this Agreement, on the Closing Date, the parties hereto shall file
a certificate of merger (the "Certificate of Merger") in such form as is
required by, and executed and acknowledged in accordance with, the relevant
provisions of the DGCL. The Merger shall become effective at such date and time
as the Certificate of Merger is duly filed with the Secretary of State of the
State of Delaware or at such subsequent date and time as Merger Co and the
Company shall agree and specify in the Certificate of Merger. The date and time
at which the Merger becomes effective is referred to in this Agreement as the
"Effective Time".
SECTION 1.04 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in Section 259 of the DGCL.
SECTION 1.05 Certificate of Incorporation; Bylaws. (a) At the
Effective Time, the Certificate of Incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be amended as of the Effective
Time to read in its entirety as set forth in Exhibit A attached hereto and, as
so amended, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended in accordance with the provisions thereof
and as provided by Law.
(b) At the Effective Time, the Bylaws of Merger Co, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended as provided by Law, the Certificate of
Incorporation of the Surviving Corporation and such Bylaws.
SECTION 1.06 Directors and Officers. The directors of Merger Co
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and Bylaws of the Surviving Corporation, in each
case until their respective successors are duly elected or appointed and
qualified or until the earlier of their death, resignation or removal.
ARTICLE II.
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01 Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Parent, Merger Co, the Company
or the holders of any of the following securities:
(a) Conversion of Company Common Stock. Each share of common stock,
par value $.01 per share, of the Company (the "Company Common Stock"; all issued
and
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outstanding shares of Company Common Stock being hereinafter collectively
referred to as the "Shares") issued and outstanding immediately prior to the
Effective Time (other than any Shares to be cancelled pursuant to Section
2.01(b) and any Dissenting Shares) shall be cancelled and shall be converted
automatically into the right to receive $37.25 in cash, without interest (the
"Merger Consideration"), payable upon surrender in the manner provided in
Section 2.02 of the certificate that formerly evidenced such Share.
(b) Cancellation of Treasury Stock and Parent and Merger Co-Owned
Stock. Each share of Company Common Stock held in the treasury of the Company
and each share of Company Common Stock owned by Parent, Merger Co or any direct
or indirect wholly owned subsidiary of Parent or Merger Co or any direct or
indirect wholly owned Subsidiary of the Company immediately prior to the
Effective Time shall automatically be cancelled without any conversion thereof
and no payment or distribution shall be made with respect thereto.
(c) Capital Stock of Merger Co. Each share of common stock, par
value $.01 per share, of Merger Co issued and outstanding 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. Following the Effective Time, each certificate evidencing
ownership of shares of Merger Co common stock shall evidence ownership of such
shares of the Surviving Corporation.
(d) Adjustments. If, between the date of this Agreement and the
Effective Time, there is a reclassification, recapitalization, stock split,
stock dividend, subdivision, combination or exchange of shares with respect to,
or rights issued in respect of, the Shares, the Merger Consideration shall be
adjusted accordingly, without duplication, to provide the holders of Shares the
same economic effect as contemplated by this Agreement prior to such event.
SECTION 2.02 Exchange of Certificates.
(a) Paying Agent. Prior to the Effective Time, Parent shall (i)
appoint a bank or trust company reasonably acceptable to the Company (the
"Paying Agent"), and (ii) enter into a paying agent agreement, in form and
substance reasonably acceptable to the Company, with such Paying Agent for the
payment of the Merger Consideration in accordance with this Article II.
Simultaneously with the Effective Time, the Surviving Corporation shall deposit
with the Paying Agent, for the benefit of the holders of Shares, cash in an
amount sufficient to pay the aggregate Merger Consideration required to be paid
pursuant to Section 2.01(a) (such cash being hereinafter referred to as the
"Exchange Fund"). The Exchange Fund shall not be used for any other purpose. The
Exchange Fund shall be invested by the Paying Agent as directed by the Surviving
Corporation; provided, however, that such investments shall be in obligations of
or guaranteed by the United States of America or any agency or instrumentality
thereof and backed by the full faith and credit of the United States of America,
in commercial paper obligations rated A-1 or P-1 or better by Xxxxx'x Investors
Service, Inc. or Standard & Poor's Corporation, respectively, or in certificates
of deposit, bank repurchase agreements or banker's acceptances of commercial
banks with capital exceeding $1 billion (based on the most recent financial
statements of such bank which are then publicly available). Any net profit
resulting from, or interest or income produced by, such investments shall be
payable to the Surviving Corporation.
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(b) Exchange Procedures. As promptly as practicable after the
Effective Time, but in any event within four business days following the
Effective Time, the Company shall cause the Paying Agent to mail to each Person
who was, immediately prior to the Effective Time, a holder of record of Shares
entitled to receive the Merger Consideration pursuant to Section 2.01(a): (i) a
letter of transmittal (which shall be in customary form and shall specify that
delivery shall be effected, and risk of loss and title to the certificates
evidencing such Shares (the "Certificates") shall pass, only upon proper
delivery of the Certificates to the Paying Agent) and (ii) instructions for use
in effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender to the Paying Agent of a Certificate for
cancellation, together with such letter of transmittal, duly completed and
validly executed in accordance with the instructions thereto, and such other
documents as may be required pursuant to such instructions, the holder of such
Certificate shall be entitled to receive in exchange therefore the amount of
cash that such holder has the right to receive in respect of the Shares formerly
represented by such Certificate pursuant to Section 2.01(a), and the Certificate
so surrendered shall forthwith be cancelled. In the event of a transfer of
ownership of Shares that is not registered in the transfer records of the
Company, payment of the Merger Consideration may be made to a Person other than
the Person in whose name the Certificate so surrendered is registered if the
Certificate representing such Shares shall be properly endorsed or otherwise be
in proper form for transfer and the Person requesting such payment shall pay any
transfer or other taxes required by reason of the payment of the Merger
Consideration to a Person other than the registered holder of such Certificate
or establish to the reasonable satisfaction of the Surviving Corporation that
such tax has been paid or is not applicable. Until surrendered as contemplated
by this Section 2.02, each Certificate shall be deemed at all times after the
Effective Time to represent only the right to receive upon such surrender the
Merger Consideration to which the holder of such Certificate is entitled
pursuant to this Article II. No interest shall be paid or will accrue on any
cash payable to holders of Certificates pursuant to the provisions of this
Article II.
(c) No Further Rights. From and after the Effective Time, holders of
Certificates shall cease to have any rights as stockholders of the Company,
other than the right to receive any dividend or distribution with respect to the
Shares evidenced by such certificates with a record date prior to the Effective
Time, and except as otherwise provided herein or by Law.
(d) Exchange Fund for Dissenting Shares. Any portion of the Exchange
Fund deposited with the Paying Agent pursuant to Section 2.02(a) to pay for
Shares that become Dissenting Shares shall be delivered to the Surviving
Corporation upon demand following the filing of a petition for appraisal of the
Shares with the Delaware Court of Chancery; provided, however, that Parent and
the Surviving Corporation shall remain liable for payment of the Merger
Consideration for such Shares held by any stockholder who shall have failed to
perfect or who otherwise shall have withdrawn or lost such stockholder's rights
to appraisal of such Shares under Section 262 of the DGCL ("Section 262").
(e) Termination of Exchange Fund. Any portion of the Exchange Fund
that remains undistributed to the holders of Shares for one year after the
Effective Time shall be delivered to the Surviving Corporation, upon demand, and
any holders of Shares who have not theretofore complied with this Article II
shall thereafter look only to the Surviving Corporation for, and the Surviving
Corporation shall remain liable for, payment of their claim for the Merger
Consideration.
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(f) No Liability. None of the Paying Agent, Parent, Merger Co or the
Surviving Corporation shall be liable to any holder of Shares for any such
Shares (or dividends or distributions with respect thereto), or cash properly
delivered to a public official pursuant to any abandoned property, escheat or
similar Law.
(g) Withholding Rights. Each of the Paying Agent, the Surviving
Corporation and Merger Co shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
Shares such amounts as it is required to deduct and withhold with respect to
such payment under all applicable Tax laws and pay such withholding amount over
to the appropriate taxing authority. To the extent that amounts are so properly
withheld by the Paying Agent, the Surviving Corporation or Merger Co, as the
case may be, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the Shares in respect of which
such deduction and withholding was made by the Paying Agent, the Surviving
Corporation or Merger Co, as the case may be.
(h) 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 a bond, in such
reasonable amount as the Surviving Corporation may direct, as indemnity against
any claim that may be made against it with respect to such Certificate, the
Paying Agent shall pay in respect of such lost, stolen or destroyed Certificate
the Merger Consideration to which the holder thereof is entitled pursuant to
Section 2.01(a).
SECTION 2.03 Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed and there shall be no further
registration of transfers of Shares thereafter on the records of the Company.
From and after the Effective Time, the holders of Certificates representing
Shares outstanding immediately prior to the Effective Time shall cease to have
any rights with respect to such Shares, except as otherwise provided in this
Agreement or by Law. On or after the Effective Time, any Certificates presented
to the Paying Agent or Merger Co for any reason shall be cancelled against
delivery of the Merger Consideration to which the holders thereof are entitled
pursuant to Section 2.01(a).
SECTION 2.04 Options and Warrants. (a) Except as otherwise agreed by
Parent and the Company prior to the Effective Time, immediately prior to the
Effective Time, all options to purchase shares of Company Common Stock (the
"Company Stock Options") granted under any plan, arrangement or agreement (the
"Company Stock Option Plans") set forth in Section 3.03(a)(i) of the disclosure
schedule delivered by the Company to Parent and Merger Co concurrently with the
execution and delivery of this Agreement (the "Company Disclosure Schedule"),
whether or not then exercisable, shall be cancelled by the Company and shall no
longer be outstanding thereafter. In consideration for such cancellation, the
holder thereof shall thereupon be entitled to receive, as soon as reasonably
practicable after the Effective Time (but in no event later than five business
days following the Closing Date), a cash payment from the Company in respect of
such cancellation in an amount (if any) equal to (i) the product of (x) the
number of shares of Company Common Stock subject to such Company Stock Option,
whether or not then exercisable, and (y) the excess, if any, of the Merger
Consideration over the exercise price per share of Company Common Stock subject
to such Company Stock Option, minus (ii) all applicable federal, state and local
Taxes required to be withheld by the Company. The
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Company agrees to take any and all actions necessary (including any action
reasonably requested by Parent) to effectuate immediately prior to the Effective
Time the cancellation of all Company Stock Options.
(b) Prior to the Effective Time, the Company shall take all actions
necessary to ensure that, at the Effective Time, each warrant then outstanding
to purchase shares of Company Common Stock (the "Company Warrants"), whether or
not then exercisable, shall be cancelled by the Company in consideration for
which the holder thereof shall thereupon be entitled to receive as soon as
reasonably practicable after the Effective Time, a cash payment from the Company
in respect of such cancellation in an amount (if any) equal to (i) the product
of (x) the number of shares of Company Common Stock subject to such Company
Warrant, whether or not then exercisable, and (y) the excess, if any, of the
Merger Consideration over the exercise price per share of Company Common Stock
subject to such Company Warrant, minus (ii) all applicable federal, state and
local Taxes required to be withheld by the Company. The Company shall take any
and all actions reasonably requested by Parent to effectuate the cancellation of
all Company Warrants at the Effective Time.
SECTION 2.05 Dissenting Shares. (a) Notwithstanding any provision of this
Agreement to the contrary and to the extent available under the DGCL, Shares
that are outstanding immediately prior to the Effective Time and that are held
by any stockholder who is entitled to demand and properly demands (and does not
timely withdraw such demand) appraisal of such Shares (the "Dissenting Shares")
pursuant to, and who complies in all respects with, the provisions of Section
262 shall not be converted into, or represent the right to receive, the Merger
Consideration. Any such stockholder shall instead be entitled to receive payment
of the fair value of such stockholder's Dissenting Shares in accordance with the
provisions of Section 262; provided, however, that all Dissenting Shares held by
any stockholder who shall have failed to perfect or who otherwise shall have
withdrawn, in accordance with Section 262, or lost such stockholder's rights to
appraisal of such Shares under Section 262 shall thereupon be deemed to have
been converted into, and to have become exchangeable for, as of the Effective
Time, the right to receive the Merger Consideration, without any interest
thereon, upon surrender of the Certificate or Certificates that formerly
evidenced such Shares in the manner provided in Section 2.02(b).
(b) The Company shall give Parent (i) prompt notice of any demands
received by the Company for appraisal of any Shares, withdrawals of such demands
and any other instruments served pursuant to the DGCL and received by the
Company and (ii) the opportunity to participate in and direct all negotiations
and proceedings with respect to demands for appraisal under the DGCL. The
Company shall not, except with the prior written consent of Parent, make any
payment or agree to make any payment with respect to any demands for appraisal
or offer to settle or settle any such demands.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Co that the
statements contained in this Article III are true and correct, except as set
forth in the SEC Reports (as defined below) filed after December 31, 2004 but
before the date hereof (other than disclosures
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set forth in the "Management's Discussion and Analysis of Financial Condition
and Results of Operations- Certain Factors That May Affect Future Operating
Results" section of the Form 10-K filed by the Company for the fiscal period
ended December 31, 2004) and in the Company Disclosure Schedule. The Company
Disclosure Schedule shall be arranged in sections and paragraphs corresponding
to the numbered and lettered sections and paragraphs contained in this Article
III, and the disclosure in any section or paragraph shall qualify (a) the
corresponding section or paragraph in this Article III and (b) the other
sections and paragraphs in this Article III to the extent that it is reasonably
apparent from a reading of such disclosure that it also qualifies or applies to
such other sections and paragraphs.
SECTION 3.01 Organization and Qualification(a) . Each of the Company and
each subsidiary of the Company (each, a "Subsidiary") is a corporation, limited
company, limited partnership, limited liability company or other business entity
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the requisite corporate, limited
company, partnership, limited liability company or other business entity (as the
case may be) power and authority and all necessary governmental approvals to
own, lease and operate its properties and to carry on its business as it is now
being conducted, except where the failure to be so organized, existing or in
good standing or to have such power, authority and governmental approvals has
not had, and would not reasonably be expected to have, a Company Material
Adverse Effect. The Company and each Subsidiary set forth on Section 3.01 of the
Company Disclosure Schedule (each, a "Material Subsidiary") is duly qualified or
licensed as a foreign corporation to do business and is in good standing (in
each instance where such concepts are legally applicable) in each jurisdiction
where the character of the properties owned, leased or operated by it or the
nature of its business makes such qualification or licensing necessary, except
where the failure to be so qualified or licensed and in good standing has not
had, and would not reasonably be expected to have, a Company Material Adverse
Effect.
SECTION 3.02 Certificate of Incorporation and Bylaws. The Company has made
available to Parent a complete and correct copy of the Certificate of
Incorporation and the Bylaws (or similar organizational documents), each as
amended to date, of the Company and each Material Subsidiary. Such Certificates
of Incorporation and Bylaws (or similar organizational documents) are in full
force and effect.
SECTION 3.03 Capitalization. (a) The authorized capital stock of the
Company consists of (i) 50,000,000 shares of Company Common Stock and (ii)
1,000,000 shares of preferred stock, par value $.01 per share ("Company
Preferred Stock"). As of June 30, 2005 (the "Capitalization Date"), (i)
23,485,566 shares of Company Common Stock were issued and outstanding, all of
which are duly authorized, validly issued, fully paid and nonassessable and were
issued free of preemptive (or similar) rights, (ii) 8,445,525 shares of Company
Common Stock were held in the treasury of the Company, (iii) no shares of
Company Common Stock were held by the Subsidiaries, (iv) 5,845,822 shares of
Company Common Stock were reserved for future issuance in connection with the
Company Stock Option Plans (including shares reserved pursuant to outstanding
Company Stock Options), (v) 347,629 shares of Company Common Stock were reserved
for issuance under the Company's Employee Stock Purchase Plan (the "ESPP" and,
together with the Company Stock Option Plans, the "Company Stock Plans"), and
(vi) 140,000 shares of Company Common Stock were reserved for issuance under the
Company Warrants. Since the Capitalization Date through the date of this
Agreement, other than
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in connection with the issuance of Shares pursuant to the exercise of Company
Stock Options and Company Warrants outstanding as of the Capitalization Date and
set forth in Section 3.03(a)(i) of the Company Disclosure Schedule, there has
been no change in the number of Shares of outstanding or reserved capital stock
of the Company or the number of outstanding Company Stock Options or Company
Warrants. Section 3.03(a)(i) of the Company Disclosure Schedule sets forth, as
of the Capitalization Date, each Company Stock Option and other right to
purchase or receive Shares under the Company Stock Plans, each Company Warrant,
the expiration date and the exercise price of each such Company Stock Option,
Company Warrant or right (including whether the exercise price was less than the
fair market value of the underlying Shares on the date of grant) and the number
of Shares issuable under each Company Stock Option, Company Warrant or right.
Section 3.03(a)(ii) of the Company Disclosure Schedule sets forth, as of the
Capitalization Date, the amount of contributions made to the ESPP through such
date and the total amount of contributions that are permitted to be made to the
ESPP through September 30, 2005.
(b) Except as set forth in Section 3.03(a), there are no (i)
subscriptions, calls, contracts, options, warrants or other rights, agreements,
arrangements, understandings, restrictions or commitments of any character to
which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound relating to the issued or unissued capital stock or equity
interests of the Company or any Subsidiary or obligating the Company or any
Subsidiary to issue or sell any shares of capital stock of, other equity
interests in or debt securities of, the Company or any Subsidiary, (ii)
securities of the Company or securities convertible, exchangeable or exercisable
for shares of capital stock or equity interests of the Company or any
Subsidiary, or (iii) equity equivalents, stock appreciation rights or phantom
stock, ownership interests in the Company or any Subsidiary or similar rights.
All shares of Company Common Stock subject to issuance as set forth in Section
3.03(a) are duly authorized and, upon issuance on the terms and conditions
specified in the instruments pursuant to which they are issuable, will be
validly issued, fully paid and nonassessable and free of preemptive (or similar)
rights. There are no outstanding contractual obligations or rights of the
Company or any Subsidiary to repurchase, redeem or otherwise acquire any
securities or equity interests of the Company or any Subsidiary or to vote or to
dispose of any shares of capital stock or equity interests of the Company or any
Subsidiary. Except for the Voting Agreement and except as set forth in Section
3.03(b) of the Company Disclosure Schedule, none of the Company or any
Subsidiary is a party to any stockholders' agreement, voting trust agreement or
registration rights agreement relating to any equity securities or equity
interests of the Company or any Subsidiary or any other Contract relating to
disposition, voting or dividends with respect to any equity securities or equity
interests of the Company or of any Subsidiary. No dividends on the Company
Common Stock have been declared or paid from March 4, 2005 through the date of
this Agreement. All of the Shares have been issued by the Company in compliance
with applicable federal securities Laws. There are no outstanding bonds,
debentures, notes or other indebtedness of the Company or any of its
Subsidiaries having the right to vote (or convertible into, or exchangeable for,
securities having the right to vote) on any matter for which the Company's
stockholders may vote.
(c) Each outstanding share of capital stock (or other unit of equity
interest) of each Subsidiary is duly authorized, validly issued, fully paid and
nonassessable (where such concepts are legally applicable) and was issued free
of preemptive (or similar) rights, and each
8
such share or unit (other than directors' qualifying shares, in the case of
non-United States Subsidiaries that are not Material Subsidiaries or Significant
Subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X of the
Securities Act), that total no more than 1% of the outstanding shares of any
such Subsidiary) is owned by the Company, by one or more wholly owned
Subsidiaries, or by the Company and one or more wholly owned Subsidiaries, free
and clear of all options, rights of first refusal, agreements, limitations on
the Company's or any Subsidiary's voting, dividend or transfer rights, charges
and other encumbrances or Liens of any nature whatsoever. A true and complete
list of all the Subsidiaries, together with the jurisdiction of incorporation of
each Subsidiary, is set forth in Section 3.03(c) of the Company Disclosure
Schedule.
(d) Section 3.03(d) of the Company Disclosure Schedule also lists
any and all Persons of which the Company directly or indirectly owns an equity
or similar interest, or an interest convertible into or exchangeable or
exercisable for an equity or similar interest, of greater than 1% but less than
50% (collectively, the "Investments"). The Company or a Subsidiary, as the case
may be, owns all Investments free and clear of all Liens, and there are no
outstanding contractual obligations of the Company or any Subsidiary permitting
the repurchase, redemption or other acquisition of any of its interest in the
Investments or requiring the Company or any Subsidiary to provide funds to, make
any investment (in the form of a loan, capital contribution or otherwise) in,
provide any guarantee with respect to, or assume, endorse or otherwise become
responsible for the obligations of, any Investment.
SECTION 3.04 Authority Relative to This Agreement. The Company has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the Merger and the other
transactions contemplated by this Agreement to be consummated by the Company
(the "Other Transactions"). Assuming the accuracy of Parent's representations
and warranties in Section 4.10, the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the Merger and
the Other Transactions have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of the Company
are necessary to authorize this Agreement or to consummate the Merger or such
Other Transactions (other than the adoption of this Agreement by the affirmative
vote of the holders of a majority of the then-outstanding shares of Company
Common Stock entitled to vote thereon and the filing of the Certificate of
Merger). This Agreement has been duly and validly executed and delivered by the
Company and, assuming the due authorization, execution and delivery by Parent
and Merger Co, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to the
effect of any applicable bankruptcy, insolvency (including all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and subject to the effect of general principles of
equity.
SECTION 3.05 No Conflict; Required Filings and Consents. (a) The execution
and delivery of this Agreement by the Company do not, and the performance of
this Agreement by the Company and the consummation by the Company of the Merger
and the Other Transactions will not, (i) conflict with, violate or result in a
breach of the Certificate of Incorporation or Bylaws of the Company (or similar
organizational documents of any Subsidiary), (ii) assuming that all consents,
approvals and other authorizations described in
9
Section 3.05(b) have been obtained and that all filings and other actions
described in Section 3.05(b) have been made or taken, conflict with or violate
any U.S. federal, state or local or foreign statute, law, ordinance, regulation,
rule, code, executive order, judgment, decree or other order ("Law") applicable
to the Company or any Subsidiary or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) except as set forth in
Section 3.05(a)(iii) of the Company Disclosure Schedule, result in any breach or
violation of or constitute a default (or an event which, with notice or lapse of
time or both, would become a default) under, require consent or result in a loss
of a material benefit under, give rise to a material obligation under, give to
others any right of termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on any property or asset of the Company or any
Subsidiary pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other binding commitment,
instrument or obligation (each, a "Contract") to which the Company or any
Subsidiary is a party or by which the Company or a Subsidiary or any property or
asset of the Company or any Subsidiary is bound or affected, except, with
respect to clauses (ii) and (iii), for any such conflicts, violations, breaches,
defaults or other occurrences which have not had, and would not reasonably be
expected to have, a Company Material Adverse Effect.
(b) The execution and delivery of this Agreement by the Company do
not, and the performance of this Agreement by the Company and the consummation
by the Company of the Merger and the Other Transactions will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any supranational, national, provincial, federal, state or local or
government, regulatory or administrative authority, or any court, tribunal, or
judicial or arbitral body (a "Governmental Authority"), except for (i)
applicable requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (ii) the pre-merger notification requirements of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the competition or merger control Laws of any other applicable
jurisdiction, (iii) the notification requirements of the Investment Canada Act (
R.S. 1985, c. 28 (1st Supp.), as amended (the "ICA"), (iv) the filing with the
Securities and Exchange Commission (the "SEC") of a proxy statement relating to
the adoption of this Agreement by the Company's stockholders (as amended or
supplemented from time to time, the "Proxy Statement") and a Schedule 13E-3 of
the Company relating to the Merger (the "Schedule 13E-3"), (v) any filings
required by, and any approvals required under, the rules and regulations of the
NASDAQ National Market, (vi) the filing of appropriate merger documents as
required by the DGCL and (vii) such consents, approvals, authorizations or
permits, or such filings or notifications, the failure of which to obtain or
make has not had, and would not reasonably be expected to have, a Company
Material Adverse Effect.
SECTION 3.06 Permits; Compliance. (a) Each of the Company and each
Subsidiary is in possession of all franchises, grants, authorizations, licenses,
permits, easements, variances, exceptions, consents, certificates, approvals and
orders of any Governmental Authority necessary for each such entity to own,
lease and operate its properties or to carry on its business as it is now being
conducted (the "Company Permits") and no default has occurred under any such
Company Permit, and, to the knowledge of the Company, no written notice of
violation has been received from any Governmental Authority, except where the
failure to have, or the suspension or cancellation of, or defaults under, or
violations of, any Company Permit have not had, and would not reasonably be
expected to have, a Company Material Adverse
10
Effect. As of the date hereof, to the knowledge of the Company, neither it nor
any Subsidiary has received any written notification from any Governmental
Authority threatening to revoke any such Person's Company Permit, the revocation
of which Company Permit would have, or would reasonably be expected to have, a
Company Material Adverse Effect.
(b) Each of the Company and each Subsidiary is, and at all times
since January 1, 2000, has been, in compliance with any Law applicable to such
entity or by which any property or asset of such entity is bound or affected,
and has not received written notice of any violation of any such Law, except
such instances of non-compliance and such violations as have not had, and would
not reasonably be expected to have, a Company Material Adverse Effect.
(c) The Company has made all certifications and statements required
by the Xxxxxxxx-Xxxxx Act of 2002 and the related rules and regulations
promulgated thereunder (the "Xxxxxxxx-Xxxxx Act") with respect to the Company's
filings pursuant to the Exchange Act. The Company has established and maintains
disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange
Act) designed to ensure that material information relating to the Company,
including its consolidated Subsidiaries, is made known on a timely basis to the
individuals responsible for the preparation of the Company's filings with the
SEC and other public disclosure documents.
(d) The Company has established and maintains a system of internal
accounting control sufficient to comply, in all material respects, with all
legal and accounting requirements applicable to the Company. The Company has
disclosed, based on its most recent evaluation of internal controls, to the
Company's auditors and its audit committee (A) any significant deficiencies and
material weaknesses within the knowledge of the Company in the design or
operation of its internal control over financial reporting which are reasonably
likely to adversely affect in any material respect the Company's ability to
record, process, summarize and report financial information, and (B) any
material fraud known to the Company that involves management or other employees
who have a significant role in internal control over financial reporting. To the
knowledge of the Company, the Company has not received a complaint, allegation,
assertion or claim in writing regarding the accounting practices, procedures,
methodologies or methods of the Company or its internal accounting controls,
including any such complaint, allegation assertion or claim that the Company has
engaged in questionable accounting or auditing practices.
SECTION 3.07 SEC Filings; Financial Statements; Undisclosed
Liabilities(a). (a) The Company has filed all forms, reports, statements,
schedules, certifications and other documents required to be filed by it with
the SEC since January 1, 2002 (collectively, the "SEC Reports"). The SEC Reports
(including any documents or information incorporated by reference therein and
including any financial statements or schedules included therein) (i) at the
time they were filed complied in all material respects with the applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations promulgated thereunder, and (ii) did not, at the time they were
filed, or, if amended, as of the date of such amendment, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they were made,
11
not misleading. No Subsidiary is or has been required to file any form, report,
statement, schedule, certification or other document with the SEC.
(b) Each of the consolidated financial statements (including, in
each case, any notes and schedules thereto) contained in the SEC Reports was
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC and the requirements
of Regulation S-X under the Securities Act) and each fairly presents, in all
material respects, the consolidated financial position, results of operations
and cash flows of the Company and its consolidated Subsidiaries as at the
respective dates thereof and for the respective periods indicated therein
(subject, in the case of unaudited statements, to normal and recurring year-end
adjustments and, in the case of pro forma financial statements, to the
qualifications stated therein). All of the Subsidiaries are consolidated for
accounting purposes.
(c) Except as and to the extent set forth on the consolidated
balance sheet of the Company and its consolidated Subsidiaries as at March 31,
2005, included in the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2005, neither the Company nor any Subsidiary has any liability
or obligation of any nature (whether accrued, absolute, contingent or otherwise)
of a type that would be required by GAAP to be reflected on a consolidated
balance sheet of the Company and its Subsidiaries or the notes thereto, except
for liabilities and obligations (i) contemplated by this Agreement, (ii)
incurred in the ordinary course of business and in a manner consistent with past
practice since March 31, 2005, (iii) set forth in Section 3.07(c) of the Company
Disclosure Schedule or (iv) that have not had, and would not reasonably be
expected to have, a Company Material Adverse Effect. As of the date hereof, the
aggregate amount of all Indebtedness of the Company and its Subsidiaries (other
than any Indebtedness owed by the Company to any Subsidiary or any Subsidiary to
the Company or another Subsidiary) does not exceed $75,000,000.
SECTION 3.08 Affiliate Transactions. Except as set forth in the SEC
Reports or contemplated by this Agreement, there are no transactions,
agreements, arrangements or understandings between (i) the Company or any of its
Subsidiaries, on the one hand, and (ii) any Affiliate of the Company (other than
any of its Subsidiaries), on the other hand, of the type that would be required
to be disclosed under Item 404 of Regulation S-K under the Securities Act.
SECTION 3.09 Absence of Certain Changes or Events. From March 31, 2005
through the date of this Agreement, there has not occurred any Company Material
Adverse Effect or any event, circumstance, development, change or effect that
would reasonably be expected to have a Company Material Adverse Effect. Since
March 31, 2005, and prior to the date of this Agreement, except as expressly
contemplated by this Agreement, (a) the Company and the Subsidiaries have
conducted their businesses only in the ordinary course of business and in a
manner consistent with past practice and (b) except as set forth in Section
3.09(b) of the Company Disclosure Schedule, neither the Company nor any
Subsidiary has taken any action or agreed to take any action that would be
prohibited by clauses (a) through (q) of Section 5.01 if taken after the date
hereof.
12
SECTION 3.10 Absence of Litigation. There is no litigation, suit, claim,
action, proceeding, hearing, petition, grievance, complaint or investigation (an
"Action") pending or, to the knowledge of the Company, overtly threatened,
against the Company or any Subsidiary, or any property or asset of the Company
or any Subsidiary, before any Governmental Authority or arbitrator except as has
not had, and would not reasonably be expected to have, a Company Material
Adverse Effect. Neither the Company nor any Subsidiary nor any property or asset
of the Company or any Subsidiary is subject to any order, writ, judgment,
injunction, decree, determination or award of, or, to the knowledge of the
Company, any continuing investigation by, any Governmental Authority, except as
has not had, and would not reasonably be expected to have, a Company Material
Adverse Effect.
SECTION 3.11 Employee Benefit Plans. (a) Section 3.11(a) of the Company
Disclosure Schedule lists (i) all material employee benefit plans (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) and all material bonus, stock option, stock purchase, restricted
stock, incentive, deferred compensation, retiree medical or life insurance,
supplemental retirement, severance or other benefit plans, programs or
arrangements; and (ii) all material employment, termination, severance or other
contracts, agreements or commitments to which the Company or any Subsidiary is a
party, with respect to which the Company or any Subsidiary has or may reasonably
be expected to have any obligation or which are maintained, contributed to or
sponsored by the Company or any Subsidiary for the benefit of any current or
former employee, consultant, officer or director of the Company or any
Subsidiary (collectively, the "Plans"). The Company has made available to Merger
Co a true and complete copy (where applicable) of (i) each Plan (or, where a
Plan has not been reduced to writing, a summary of all material Plan terms of
such Plan), (ii) each trust or funding arrangement prepared in connection with
each such Plan, (iii) the most recently filed annual report on Internal Revenue
Service ("IRS") Form 5500 or any other annual report required by applicable Law,
(iv) the most recently received IRS determination letter for each such Plan, (v)
the most recently prepared actuarial report and financial statement in
connection with each such Plan, (vi) the most recent summary plan description,
any summaries of material modification, any employee handbooks, and any material
written communications (or a description of any material oral communications) by
the Company or the Subsidiaries to any current or former employees, consultants,
or directors of the Company or any Subsidiary concerning the extent of the
benefits provided under a Plan. Neither the Company nor any Subsidiary has any
plan or commitment to establish any new material Plan or to materially modify
any Plan.
(b) None of the Company or any Subsidiary or any other Person or
entity that, together with the Company or any Subsidiary, is or was treated as a
single employer under Section 414(b), (c), (m) or (o) of the Code (each,
together with the Company and any Subsidiary, an "ERISA Affiliate"), has now or
at any time within the past six years (and in the case of any such other Person
or entity, only during the period within the past six years that such other
Person or entity was an ERISA Affiliate) contributed to, sponsored, or
maintained (i) a pension plan (within the meaning of Section 3(2) of ERISA)
subject to Section 412 of the Code or Title IV of ERISA; (ii) a multiemployer
plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA or the
comparable provisions of any other applicable Law) (a "Multiemployer Plan"); or
(iii) a single employer pension plan (within the meaning of Section 4001(a)(15)
of ERISA) for which an ERISA Affiliate would reasonably be expected to incur
liability under Section 4063 or 4064 of ERISA (a "Multiple Employer Plan"). No
Plan exists that would reasonably be expected
13
to result in the payment to any present or former employee, director or
consultant of the Company or any Subsidiary of any money or other property or
accelerate or provide any other rights or benefits to any current or former
employee, director or consultant of the Company or any Subsidiary as a result of
the consummation of the Merger or any other transaction contemplated by this
Agreement (whether alone or in connection with any other event). No payment or
other benefit that has been or may be made to any current or former employee or
independent contractor of the Company or any Subsidiary under any employment,
severance or termination agreement, other compensation arrangement or employee
benefit plan or arrangement with the Company or any Subsidiary may be
characterized as an "excess parachute payment," as such term is defined in
Section 280G of the United States Internal Revenue Code of 1986, as amended (the
"Code").
(c) Each Plan that is intended to be qualified under Section 401(a)
of the Code has received a favorable determination letter from the IRS that the
Plan is so qualified, and each trust established in connection with any Plan
which is intended to be exempt from federal income taxation under Section 501(a)
of the Code has received a determination letter from the IRS that it is so
exempt, and, to the knowledge of the Company, no fact or circumstance exists
that would reasonably be expected to result in the revocation of such letter.
(d) (i) Each Plan has been established and administered in
accordance with its terms, and in compliance with the applicable provisions of
ERISA, the Code and other applicable Laws, except to the extent such
noncompliance has not had, and would not reasonably be expected to have, a
Company Material Adverse Effect, and (ii) except as set forth on Section 3.11(d)
of the Company Disclosure Schedule, no Plan provides post-termination benefits,
and neither the Company nor any Subsidiary has any obligation to provide any
post-termination benefits other than for health care continuation as required by
Section 4980B of the Code or any similar statute.
(e) With respect to any Plan, (i) no Actions (other than routine
claims for benefits in the ordinary course) are pending or, to the knowledge of
the Company, threatened, except for those that have not had, and would not
reasonably be expected to have, a Company Material Adverse Effect, (ii) to the
knowledge of the Company, no facts or circumstances exist that would reasonably
be expected to give rise to any such Actions, and (iii) no administrative
investigation, audit or other administrative proceeding by the Department of
Labor, the IRS or other Governmental Authority is pending, in progress or, to
the knowledge of the Company, threatened, except for those that have not had,
and would not reasonably be expected to have, a Company Material Adverse Effect.
(f) Without limiting the representations set forth in Section
3.11(a) through (e), with respect to each Plan that is not subject to United
States Law (a "Foreign Benefit Plan"), except as has not had, and would not
reasonably be expected to have, a Company Material Adverse Effect: (i) all
employer and employee contributions to each Foreign Benefit Plan required by Law
or by the terms of such Foreign Benefit Plan have been made or, if applicable,
accrued in accordance with applicable accounting practices; (ii) the fair market
value of the assets of each funded Foreign Benefit Plan, the liability of each
insurer for any Foreign Benefit Plan funded through insurance or the book
reserve established for any Foreign Benefit Plan, together with any accrued
contributions, is sufficient to procure or provide for the accrued
14
benefit obligations, as of the date of this Agreement, with respect to all
current and former participants in such plan according to the actuarial
assumptions and valuations most recently used and consistent with applicable Law
to determine employer contributions to such Foreign Benefit Plan and no
transaction contemplated by this Agreement shall cause such assets, reserve or
insurance obligations to be less than such benefit obligations; (iii) each
Foreign Benefit Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities; (iv) each
Foreign Benefit Plan is in compliance with all applicable Laws; and (v) no
Foreign Benefit Plan is a registered pension plan for purposes of applicable
Canadian Law.
SECTION 3.12 Labor and Employment Matters. Neither the Company nor any
Subsidiary is, or at any time has been, a party to any collective bargaining
agreement or other labor union agreements applicable to Persons employed by the
Company or any Subsidiary, nor, to the knowledge of the Company, are there any
such employees represented by a works council or a labor organization or
activities or proceedings of any labor union to organize any such employees.
Except as has not had, and would not reasonably be expected to have, a Company
Material Adverse Effect, no work stoppage, slowdown or labor strike against the
Company or any Subsidiary is pending or, to the knowledge of the Company,
threatened in writing. Except as has not had, and would not reasonably be
expected to have, a Company Material Adverse Effect, the Company and its
Subsidiaries (a) have no direct or indirect liability with respect to any
misclassification of any Persons as an independent contractor rather than as an
employee and (b) are in compliance with all applicable foreign, federal, state
and local laws, rules and regulations respecting employment, employment
practices, terms and conditions of employment and wages and hours, in each case,
with respect to their employees.
SECTION 3.13 Real Property. (a) Neither the Company nor any Subsidiary
owns any parcel of real property.
(b) Section 3.13(b) of the Company Disclosure Schedule lists by
address each parcel of real property leased or subleased by the Company or any
Subsidiary that is currently used in and material to the conduct of the business
of the Company and the Subsidiaries, taken as a whole (the "Leased Properties"),
with any guaranty given by the Company or any Subsidiary in connection
therewith. The Company or one of its Subsidiaries has a valid leasehold interest
in all of the Leased Properties, free and clear of all Liens, except (i) Liens
for current taxes and assessments not yet past due, (ii) inchoate mechanics' and
materialmen's Liens for construction in progress, (iii) workmen's, repairmen's,
warehousemen's and carriers' Liens arising in the ordinary course of business of
the Company or such Subsidiary consistent with past practice, and (iv) all Liens
and other imperfections of title (including matters of record) and encumbrances
that do not materially interfere with the conduct of the business of the Company
and the Subsidiaries, taken as a whole, or as have not had, and would not
reasonably be expected to have, a Company Material Adverse Effect (collectively,
"Permitted Liens"). True and complete copies of all agreements under which the
Company or any of its Subsidiaries leases or subleases the Leased Properties
(the "Leases") have been made available to Parent and Merger Co. Except as has
not had, and would not reasonably be expected to have, a Company Material
Adverse Effect, the Company or one of its Subsidiaries has the right to the use
and occupancy of the Leased Properties, subject to the terms of the applicable
Lease relating thereto and Permitted Liens.
15
SECTION 3.14 Intellectual Property. (a) Except as has not had, and
would not reasonably be expected to have, a Company Material Adverse Effect, to
the knowledge of the Company (i) the Company and its Subsidiaries own or have
the valid right to use all the Intellectual Property (as defined below) used in,
or necessary in, the conduct of the business of the Company and the
Subsidiaries, and (ii) the conduct of the business of the Company and its
Subsidiaries as currently conducted does not infringe upon, misappropriate or
violate ("Infringe") any copyrights, trademarks, service marks, trade names,
confidential and proprietary information or patents of any third party. Except
as has not had, and would not reasonably be expected to, have a Company Material
Adverse Effect, no claim or demand has been given in writing to the Company or
any Subsidiary that the conduct of the business of the Company or any Subsidiary
Infringes upon or may Infringe upon the Intellectual Property rights of any
third party (including any demand that the Company or a Subsidiary must license
or refrain from using any Intellectual Property of a third party).
(b) Section 3.14(b) of the Company Disclosure Schedule sets forth a
true and complete list of all registered trademarks and registered service
marks, trademark and service xxxx applications, copyright registrations and
applications, and patents and patent applications currently owned by the Company
and its Subsidiaries that are material to the business of the Company and its
Subsidiaries, taken as a whole (collectively, "Scheduled Intellectual
Property"). Each item listed on Section 3.14(b) of the Company Disclosure
Schedule has been duly registered or application filed with the U.S. Patent and
Trademark Office, Canadian Patent Office, or such other governmental or
organizational authority. Except as has not had, and would not reasonably be
expected to have, a Company Material Adverse Effect, all patent, copyright and
trademark applications, renewals and other similar fees have been properly paid
and are current, and all patent, copyright and trademark registrations and
filings remain in full force and effect. There are no actual or, to the
knowledge of the Company, threatened opposition proceedings, reexamination
proceedings, cancellation proceedings, interference proceedings or other similar
actions challenging the validity, existence or ownership of any portion of the
Scheduled Intellectual Property. None of the Scheduled Intellectual Property has
been previously adjudged to be invalid or unenforceable in whole or in part.
(c) Except as has not had, and would not reasonably be expected to
have, a Company Material Adverse Effect, with respect to the Intellectual
Property rights that are owned by the Company or any of its Subsidiaries (except
for portions thereof that consist of embedded third-party products licensed from
others) that are material to the business of the Company and its Subsidiaries,
taken as a whole (collectively, "Owned Intellectual Property"), the Company or a
Subsidiary is the owner of the entire right, title and interest in and to such
Owned Intellectual Property and is entitled to make, use, offer for sale, sell,
import, license and transfer products made in accordance with the Owned
Intellectual Property and otherwise to exploit such Owned Intellectual Property
in the continued operation of its respective business consistent with past
practice. To the knowledge of the Company, no Person has or is engaged in any
activity that has Infringed upon the Owned Intellectual Property in any material
respect. Except as has not had, and would not reasonably be expected to have, a
Company Material Adverse Effect, neither the Company nor any Subsidiary has
exclusively licensed any Owned Intellectual Property to any Person.
16
(d) Except as has not had, and would not reasonably be expected to
have, a Company Material Adverse Effect, to the knowledge of the Company, the
Company and its Subsidiaries use the Intellectual Property of third parties only
pursuant to valid, effective written license agreements (collectively, the
"Third Party Licenses") that will allow the continued operation of the Company's
business consistent with past practice. Section 3.14(d) of the Company
Disclosure Schedule sets forth a true and complete list of all third party
software contained or embedded in the Owned Software (as defined below) that, if
the Company or any of its Subsidiaries did not have the right to make, use,
offer for sale, sell, import, license, transfer, sublicense, or otherwise
exploit, would have, or could reasonably be expected to have, a Company Material
Adverse Effect.
(e) Except as has not had, and would not reasonably be expected to
have, a Company Material Adverse Effect, the Company and its Subsidiaries have
taken commercially reasonable actions to protect, preserve and maintain the
Owned Intellectual Property and to maintain the confidentiality and secrecy of
and restrict the improper use of confidential information, trade secrets and
proprietary information under applicable Law. Without limitation, such
reasonable actions have included requiring employees and consultants to enter
into non-disclosure and intellectual property assignment agreements and, with
respect to copyrights, waivers of moral rights to the extent that such employees
or consultants have worked with or have developed any part of the Owned
Intellectual Property. To the knowledge of the Company, (i) there has been no
unauthorized disclosure of any material confidential information, trade secrets
or proprietary information of the Company or any Subsidiary, and (ii) there has
been no material breach of the Company's or any Subsidiary's security procedures
wherein any material Company or Subsidiary confidential information, trade
secrets or proprietary information has been disclosed to a third Person.
(f) Except as has not had, and would not reasonably be expected to
have, a Company Material Adverse Effect, with respect to each item of Computer
Software which is included in Owned Intellectual Property ("Owned Software"),
the Company or a Subsidiary is in actual possession and control of the
applicable source code, object code, code writes, notes, documentation, and
know-how to the extent required for use, distribution, development, enhancement,
maintenance and support of the Owned Software. Other than pursuant to agreements
entered into in the ordinary course of business, and except as set forth in
Section 3.14(f) of the Company Disclosure Schedule, no Person other than the
Company and its Subsidiaries has any rights to make, use, offer for sale, sell,
import, export, license, transfer, reproduce, prepare derivative works based
upon, distribute copies of, perform, display, or otherwise exploit all or a
portion of the Owned Software (except for portions thereof that may consist of
embedded third-party products licensed from others) material to the business of
the Company and its Subsidiaries. Except as has not had, and would not
reasonably be expected to have, a Company Material Adverse Effect, the Company
and its Subsidiaries have disclosed Owned Software source code to any other
Person only pursuant to written confidentiality terms that reasonably protect
the Company's or Subsidiary's rights in the Owned Software. To the knowledge of
the Company, except as disclosed in accordance with agreements containing such
confidentiality terms or escrow agents pursuant to valid source code escrow
agreements, no Person other than the Company and the Subsidiaries is in
possession of, or has rights in, any source code for Owned Software. Except as
has not had, and would not reasonably be expected to have, a Company Material
Adverse Effect, neither the Company nor any Subsidiary is
17
obligated to operate in accordance with any outsourcing agreement or to support
or maintain any of the Owned Software except pursuant to agreements that provide
for periodic payments to the Company or a Subsidiary for such services or
pursuant to warranty obligations.
(g) For purposes of this Agreement, "Intellectual Property" means
the following and all rights pertaining thereto: (i) patents, patent
applications, provisional patent applications and statutory invention
registrations (including all utility models and other patent rights under the
laws of all countries), (ii) trademarks, service marks, trade dress,
distinguishing guises, logos, trade names, service names, corporate names,
domain names and other brand identifiers, registrations and applications for
registration thereof, (iii) copyrights, proprietary designs, Computer Software
(as defined below), mask works, databases, and registrations and applications
for registration thereof, (iv) confidential and proprietary information, trade
secrets, know-how and show-how, and (v) all similar rights, however denominated,
throughout the world. For purposes of this Agreement, "Computer Software" means
computer software and includes all source code, object code, executable or
binary code.
(h) Except as has not had, and would not reasonably be expected to
have, a Company Material Adverse Effect (i) the Company and its Subsidiaries
have complied with all applicable contractual and legal requirements pertaining
to information privacy and security, and (ii) no written complaint relating to
an improper use or disclosure of, or a breach in the security of, any such
information has been made against the Company or any Subsidiary.
SECTION 3.15 Taxes. (a) Except as has not had, and would not reasonably be
expected to have, a Company Material Adverse Effect and except as set forth in
Section 3.15(a) of the Company Disclosure Schedule, (i) the Company and the
Subsidiaries have timely filed or caused to be filed or will timely file or
cause to be filed (taking into account any extension of time to file granted or
obtained) all Tax Returns required to be filed by them, and any such filed Tax
Returns are true, correct and complete, (ii) the Company and the Subsidiaries
have timely paid or will timely pay any Taxes due and payable except to the
extent that such Taxes are being contested in good faith and for which the
Company or the appropriate Subsidiary has set aside adequate reserves in
accordance with GAAP, (iii) without taking into account any transactions
contemplated by this Agreement and based upon activities to date, adequate
reserves in accordance with GAAP have been established by the Company and the
Subsidiaries for all Taxes not yet due and payable in respect of taxable periods
ending on the date hereof and (iv) all amounts of Tax required to be withheld by
the Company and its Subsidiaries have been or will be timely withheld and paid
over to the appropriate Tax authority.
(b) No deficiency for any material amount of Tax has been asserted
or assessed by any Governmental Authority in writing against the Company or any
Subsidiary (or, to the knowledge of the Company, has been threatened or
proposed), except for deficiencies which have been satisfied by payment, settled
or been withdrawn or which are being contested in good faith and are Taxes for
which the Company or the appropriate Subsidiary has set aside adequate reserves
in accordance with GAAP. There are no liens for a material amount of any Taxes,
other than liens for current Taxes and assessments not yet past due or which are
being contested in good faith and for which the Company or the appropriate
Subsidiary has set aside adequate reserves in accordance with GAAP, on the
assets of the Company or any Subsidiary.
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(c) (i) Except as set forth in Section 3.15(c) of the Company
Disclosure Schedule, there are no pending or, to the knowledge of the Company,
threatened audits, examinations, investigations or other proceedings in respect
of a material amount of Taxes of the Company or any Subsidiary with respect to
which the Company or a Subsidiary has been notified in writing and (ii) neither
the Company nor any Subsidiary has waived any statute of limitations in respect
of a material amount of Taxes or agreed to any extension of time with respect to
an assessment or deficiency for a material amount of Taxes (other than pursuant
to extensions of time to file Tax Returns obtained in the ordinary course).
(d) Neither the Company nor any Subsidiary is a party to any
indemnification, allocation or sharing agreement with respect to Taxes that
could give rise to a material payment or indemnification obligation (other than
agreements among the Company and its Subsidiaries and other than customary Tax
indemnifications contained in credit or other commercial lending agreements).
(e) Neither the Company nor any of its Subsidiaries is required to
make any disclosure to the Internal Revenue Service with respect to a
"reportable transaction" pursuant to Section 1.6011-4(b)(2) of the Treasury
Regulations promulgated under the Code.
(f) Neither the Company nor any Subsidiary (i) has, except as set
forth in Section 3.15(f) of the Company Disclosure Schedule, been a member of an
affiliated group filing a consolidated federal income tax return (other than a
group the common parent of which was the Company) or (ii) has any liability for
the Taxes of any Person (other than the Company or any Subsidiary) under
Treasury regulation section 1.1502-6 (or any similar provision of state, local
or foreign law), as a transferee, successor, by contract or otherwise.
(g) Neither the Company nor any Subsidiary has distributed the stock
of another company in a transaction that was purported or intended to be
governed by section 355 or section 361 of the Code.
SECTION 3.16 Environmental Matters. Except as has not had, and would not
reasonably be expected to have, a Company Material Adverse Effect, (i) to the
knowledge of the Company, there is and has been no release of Materials of
Environmental Concern that requires response action under applicable
Environmental Law at, on or under any of the properties currently owned, leased
or operated by the Company or any of the Subsidiaries or, during the period of
the Company's or the Subsidiaries' ownership, lease or operation thereof,
formerly owned, leased or operated by the Company or any of the Subsidiaries;
and (ii) there are no written claims or notices pending or, to the knowledge of
the Company, issued to or threatened against the Company or any of the
Subsidiaries alleging violations of or liability under any Environmental Law or
otherwise concerning the release or management of Materials of Environmental
Concern.
SECTION 3.17 Specified Contracts. (a) Except as has not had, and would
not reasonably be expected to have, a Company Material Adverse Effect, (i) each
Specified Contract is a legal, valid and binding obligation of the Company or a
Subsidiary, as applicable, in full force and effect and enforceable against the
Company or a Subsidiary in accordance with its terms, subject to the effect of
any applicable bankruptcy, insolvency (including all laws relating
19
to fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and subject to the effect of general principles of
equity, (ii) to the knowledge of the Company, each Specified Contract is a
legal, valid and binding obligation of the counterparty thereto, in full force
and effect and enforceable against such counterparty in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency (including
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors' rights generally and subject to the effect of
general principles of equity, (iii) neither the Company nor any of its
Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach
or violation of, or in default under, any Specified Contract, (iv) none of the
Company or any of the Subsidiaries has received any claim of default under any
Specified Contract or any written notice of an intention to terminate, not renew
or challenge the validity or enforceability of any Specified Contract and (v) to
the Company's knowledge, no event has occurred which would result in a breach or
violation of, or a default under, any Specified Contract (in each case, with or
without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "Specified Contract"
means any of the following Contracts (together with all exhibits and schedules
thereto) to which the Company or any Subsidiary is a party:
(i) any limited liability company agreement, joint venture or other
similar agreement or arrangement with respect to any material business of
the Company and the Subsidiaries, taken as a whole, other than any such
limited liability company, partnership or joint venture that is a
wholly-owned Subsidiary;
(ii) any Contract or Contracts relating to or evidencing
Indebtedness in an amount in excess of $1,000,000, individually or in the
aggregate, other than equipment leases entered into in the ordinary course
of business that do not exceed $5,000,000 in the aggregate;
(iii) any Contract filed or required to be filed as an exhibit to
the Company's Annual Report on Form 10-K pursuant to Item 601(b)(10) of
Regulation S-K under the Securities Act or disclosed or required to be
disclosed by the Company in a Current Report on Form 8-K, other than Plans
disclosed in Section 3.11(a) of the Company Disclosure Schedule;
(iv) any material Contract that purports to limit the right of the
Company or the Subsidiaries or any Affiliate of the Company (A) to engage
or compete in any line of business or (B) to compete with any Person or
operate in any location;
(v) any Contract that (A) contains most favored customer pricing
provisions with any third party (other than Contracts entered into in the
ordinary course of business consistent with past practice) or (B) grants
any exclusive rights, rights of first refusal, rights of first negotiation
or similar rights to any Person, in the case of each of (A) and (B) in a
manner which is material to the business of the Company and its
Subsidiaries, taken as a whole;
20
(vi) any Contract entered into after January 1, 2002, or not yet
consummated for the acquisition or disposition, directly or indirectly (by
merger or otherwise), of assets or capital stock or other equity interests
of any Person for aggregate consideration under such Contract in excess of
$5,000,000 individually, or $10,000,000 in the aggregate;
(vii) any Contract of the type specified in Section 5.01(n) or
between or among the Company or a Subsidiary, on the one hand, and any of
their respective Affiliates (other than the Company or any Subsidiary), on
the other hand, that involves amounts of more than $60,000;
(viii) any acquisition Contract pursuant to which the Company or any
of its Subsidiaries has continuing indemnification, "earn-out" or other
contingent payment obligations;
(ix) any Contract that, individually or in the aggregate, would, or
would reasonably be expected to, prevent, materially delay or materially
impede the Company's ability to consummate the transactions contemplated
by this Agreement;
(x) any Contract that contains a put, call, right of first refusal
or similar right pursuant to which the Company or any Subsidiary would be
required to purchase or sell, as applicable, any ownership interests of
any Person;
(xi) any Contract with any customer of the Company or any Subsidiary
providing for annual payments to the Company and its Subsidiaries in
excess of $1,000,000 during the Company's 2004 fiscal year or the
Company's 2005 fiscal year;
(xii) any Contract with any supplier of the Company or any
Subsidiary providing for annual payments from the Company and its
Subsidiaries in excess of $250,000 during the Company's 2004 fiscal year
or the Company's 2005 fiscal year;
(xiii) any annual software maintenance contract or agreement (an
"Annual Maintenance Agreement") providing for payments to the Company and
its Subsidiaries of $250,000 or more during the Company's 2004 fiscal year
or the Company's 2005 fiscal year;
(xiv) any Contract providing for payments to the Company and its
Subsidiaries of $250,000 or more during the Company's 2004 fiscal year or
the Company's 2005 fiscal year in which the Company or any Subsidiary
performs any processing services for a third party, including, but not
limited to, receipt and reconciliation of third-party data and/or
reporting reconciliation of data to a third party;
(xv) any Lease; and
(xvi) any Third Party Licenses related to the Company's or any
Subsidiary's use of third party Computer Software that, if the Company or
any of its Subsidiaries did not have the right to make, use, offer for
sale, sell, import, license, transfer, sublicense or otherwise exploit,
would have, or would reasonably be expected to have, a Company Material
Adverse Effect.
21
A true and complete list of the Specified Contracts referred to in
subsections (i) through (xvi) above is set forth in Section 3.17(b) of the
Company Disclosure Schedule, except for Specified Contracts filed prior to the
date hereof as exhibits to SEC Reports. The Company has made available to Parent
true and correct copies of each Specified Contract. Neither the Company nor any
Subsidiary has been notified in writing by any party to any Annual Maintenance
Agreement that such party intends to terminate any Annual Maintenance Agreement
or fail to renew any Annual Maintenance Agreement at the end of its current
term, and the Company does not otherwise have any reason to believe that any
such party intends to so terminate or fail to renew any such Annual Maintenance
Agreement, other than in respect of Annual Maintenance Agreements that, in the
aggregate, represent less than 10% of the expected aggregate revenues of the
Company and its Subsidiaries derived from Annual Maintenance Agreements during
the Company's 2005 fiscal year.
SECTION 3.18 Insurance. Section 3.18 of the Company Disclosure Schedule
sets forth a complete and correct list of all material insurance policies owned
or held by the Company and each Subsidiary. With respect to each such insurance
policy, except as has not had, and would not reasonably be expected to have, a
Company Material Adverse Effect: (i) the policy is legal, valid, binding and
enforceable in accordance with its terms and, except for policies that have
expired under their terms in the ordinary course, is in full force and effect;
(ii) neither the Company nor any Subsidiary is in material breach or default
(including any such breach or default with respect to the payment of premiums or
the giving of notice), and, to the Company's knowledge, no event has occurred
which, with notice or the lapse of time, would constitute such a breach or
default, or permit termination or modification, under the policy; (iii) to the
knowledge of the Company, no insurer on the policy has been declared insolvent
or placed in receivership, conservatorship or liquidation; and (iv) to the
knowledge of the Company, no notice of cancellation or termination has been
received other than in connection with ordinary renewals.
SECTION 3.19 Board Approval; Vote Required. (a) The Company Board and the
Independent Committee of the Board of Directors (the "Independent Committee"),
by resolutions duly adopted at a meeting duly called and held, which
resolutions, subject to Section 6.04, have not been subsequently rescinded,
modified or withdrawn in any way, has by unanimous vote of those directors
present (who constituted 100% of the directors then in office, other than the
Principal Stockholder) duly (i) determined that this Agreement, the Voting
Agreement, the Contribution Agreement and the Merger and the Other Transactions
are fair to and in the best interests of the Company and its stockholders, (ii)
approved this Agreement, the Voting Agreement, the Contribution Agreement, the
Merger and the Other Transactions and declared their advisability, and (iii)
recommended that the stockholders of the Company adopt this Agreement and
directed that this Agreement be submitted for consideration by the Company's
stockholders at the Company Stockholders' Meeting. Assuming the accuracy of
Parent's representations and warranties in Section 4.10, the approval of this
Agreement, the Voting Agreement and the Contribution Agreement by the Company
Board and the Independent Committee constitutes approval of this Agreement, the
Voting Agreement, the Contribution Agreement and the Merger for purposes of
Section 203 of the DGCL ("Section 203") and represents the only action necessary
to ensure that the restrictions of Section 203 do not apply to the execution and
delivery of this Agreement, the Voting Agreement or the Contribution Agreement
or the consummation of the Merger and the Other Transactions. No "fair price,"
22
"moratorium," "control share acquisition," or other similar anti-takeover
statute or regulation enacted under state or federal laws in the United States
(with the exception of Section 203) applicable to the Company is applicable to
the transactions contemplated by this Agreement.
(b) Assuming the accuracy of Parent's representations and warranties
in Section 4.10, the only vote of the holders of any class or series of capital
stock or other securities of the Company necessary to adopt this Agreement or
consummate the Other Transactions is the affirmative vote of the holders of a
majority of the outstanding shares of Company Common Stock in favor of the
adoption of this Agreement (the "Stockholder Approval").
SECTION 3.20 Opinions of Financial Advisors. The Company has received the
opinion of SunTrust Capital Markets, Inc. to the effect that, as of the date of
such opinion, the Merger Consideration to be received by the holders of Company
Common Stock (other than the Principal Stockholder) is fair, from a financial
point of view, to such holders. An executed copy of such opinion has been
delivered to Parent and Merger Co.
SECTION 3.21 Brokers. No broker, finder or investment banker (other than
America's Growth Capital LLC and SunTrust Capital Markets, Inc.) is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Company. The Company has delivered to Parent complete and accurate copies of
all agreements under which any fees or expenses are or may be payable to
SunTrust Capital Markets, Inc. and America's Growth Capital LLC.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER CO
Each of Parent and Merger Co, jointly and severally, hereby represents and
warrants to the Company that:
SECTION 4.01 Corporate Organization. Each of Parent and Merger Co is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and has the requisite corporate power
and authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as it is now being conducted, except
where the failure to be so organized, existing or in good standing or to have
such power, authority and governmental approvals would not, individually or in
the aggregate, prevent or materially delay consummation of the Merger or
otherwise prevent or materially delay either Parent or Merger Co from performing
its obligations under this Agreement.
SECTION 4.02 Certificate of Incorporation and Bylaws. Each of Parent and
Merger Co has heretofore furnished to the Company a complete and correct copy of
its Certificate of Incorporation and Bylaws, each as amended to date. Such
Certificates of Incorporation and Bylaws are in full force and effect.
SECTION 4.03 Authority Relative to This Agreement. Each of Parent and
Merger Co has all necessary corporate or other power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the Merger. The execution, delivery and performance of this Agreement
by each of Parent and Merger Co and the
23
consummation by each of Parent and Merger Co of the Merger have been duly and
validly authorized by all necessary corporate or other action, and no other
corporate or other proceedings on the part of Parent or Merger Co are necessary
to authorize this Agreement or to consummate the Merger. This Agreement has been
duly and validly executed and delivered by each of Parent and Merger Co and,
assuming due authorization, execution and delivery by the Company, constitutes a
legal, valid and binding obligation of each of Parent and Merger Co, enforceable
against each of Parent and Merger Co in accordance with its terms, subject to
the effect of any applicable bankruptcy, insolvency (including all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and subject to the effect of general principles of
equity.
SECTION 4.04 No Conflict; Required Filings and Consents. (a) The execution
and delivery of this Agreement by each of Parent and Merger Co do not, and the
performance of this Agreement by each of Parent and Merger Co and the
consummation by each of Parent and Merger Co of the Merger will not, (i)
conflict with or violate the respective Certificates of Incorporation or Bylaws
of Parent or Merger Co, (ii) assuming that all consents, approvals,
authorizations and other actions described in Section 4.04(b) have been obtained
and all filings and obligations described in Section 4.04(b) have been made,
conflict with or violate any Law applicable to either Parent or Merger Co or by
which any property or asset of either of them is bound or affected, or (iii)
result in any breach or violation of, or constitute a default (or an event
which, with notice or lapse of time or both, would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any property or asset of
either Parent or Merger Co pursuant to any Contract to which either Parent or
Merger Co is a party or by which either Parent or Merger Co or any of their
respective properties or assets is bound or affected, except, with respect to
clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences which would not, individually or in the aggregate, prevent
or materially delay consummation of the Merger or otherwise prevent or
materially delay Parent or Merger Co from performing their material obligations
under this Agreement.
(b) The execution and delivery of this Agreement by each of Parent
and Merger Co do not, and the performance of this Agreement by each of Parent
and Merger Co and the consummation by each of Parent and Merger Co of the Merger
will not, require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Authority, except for (i) applicable
requirements, if any, of the Exchange Act, (ii) the pre-merger notification
requirements of the HSR Act and the competition or merger control Laws of any
other applicable jurisdiction, (iii) the notification requirements of the ICA,
(iv) the filing and recordation of appropriate merger documents as required by
the DGCL and appropriate documents with the relevant authorities of other states
in which the Company or any of the Subsidiaries is qualified to do business, and
(v) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not, individually or in
the aggregate, prevent or materially delay consummation of the Merger or
otherwise prevent or materially delay either Parent or Merger Co from performing
its material obligations under this Agreement.
SECTION 4.05 Absence of Litigation. As of the date of this Agreement,
there is no Action pending or, to the knowledge of the officers of Parent and
Merger Co, threatened,
24
against either Parent or Merger Co or any of their Affiliates before any
Governmental Authority that would or seeks to materially delay or prevent the
consummation of the Merger. As of the date of this Agreement, neither Parent nor
Merger Co nor any of their Affiliates is subject to any continuing order of,
consent decree, settlement agreement or other similar written agreement with,
or, to the knowledge of the officers of Parent and Merger Co, continuing
investigation by, any Governmental Authority, or any order, writ, judgment,
injunction, decree, determination or award of any Governmental Authority that
would or seeks to materially delay or prevent the consummation of the Merger.
SECTION 4.06 Operations of Merger Co. Merger Co was formed solely for the
purpose of engaging in the transactions contemplated hereby, has engaged in no
other business activities and has conducted its operations only as contemplated
by this Agreement.
SECTION 4.07 Financing. Parent has delivered to the Company true and
complete copies of (a) an executed commitment letter from Carlyle Partners IV,
L.P. and XX XX Coinvestment, L.P. to provide equity financing in an aggregate
amount set forth therein (the "Equity Funding Letter") and (b) an executed
commitment letter (the "Commitment Letter") from JPMorgan Chase Bank, N.A., X.X.
Xxxxxx Securities Inc., Wachovia Bank, National Association, Wachovia Investment
Holdings, LLC, Wachovia Capital Markets, LLC, Bank of America, N.A., Banc of
America Bridge LLC and Banc of America Securities LLC to provide debt financing
in an aggregate amount set forth therein (being collectively referred to as the
"Debt Financing," and together with the financing referred to in clause (a)
being collectively referred to as the "Financing"). None of the Equity Funding
Letter or Commitment Letter has been amended or modified except as permitted by
this Agreement, and the respective commitments contained in the Equity Funding
Letter and, to the knowledge of Parent as of the date of this Agreement, the
Commitment Letter, have not been withdrawn or rescinded in any respect. The
Equity Funding Letter and, to the knowledge of Parent as of the date of this
Agreement, the Commitment Letter, are in full force and effect. There are no
conditions precedent or other contingencies related to the funding of the full
amount of the Financing, other than as set forth in or contemplated by the
Equity Funding Letter or the Commitment Letter. The aggregate proceeds
contemplated by the Equity Funding Letter and the Commitment Letter will be
sufficient for Merger Co to pay the aggregate Merger Consideration and any other
repayment or refinancing of debt contemplated by the Commitment Letter and to
pay all related fees and expenses.
SECTION 4.08 Guarantee. Concurrently with the execution of this Agreement,
Parent has delivered to the Company the guarantee (the "Guarantee") of Carlyle
Partners IV, L.P. (the "Guarantor").
SECTION 4.09 Brokers. The Company will not be responsible for any
brokerage, finder's or other fee or commission to any broker, finder or
investment banker (other than Wachovia Capital Markets, LLC and TC Group,
L.L.C.) in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of either Parent or Merger Co.
SECTION 4.10 Ownership of Company Common Stock. Neither Parent nor any of
Parent's "Affiliates" or "Associates" directly or indirectly "owns," and at all
times since July
25
1, 2002, neither Parent nor any of Parent's Affiliates directly or indirectly
has "owned," beneficially or otherwise, 15% or more of the outstanding Company
Common Stock, as those terms are defined in Section 203.
ARTICLE V.
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01 Conduct of Business by the Company Pending the Merger. The
Company agrees that, between the date of this Agreement and the Effective Time,
except as expressly contemplated by this Agreement or as set forth in Section
5.01 of the Company Disclosure Schedule, the businesses of the Company and the
Subsidiaries shall be conducted only in, and the Company and the Subsidiaries
shall not take any action except in, the ordinary course of business and in a
manner consistent with past practice, and the Company shall, and shall cause
each of the Subsidiaries to, use its reasonable best efforts consistent with
past practice to preserve substantially intact the business organization of the
Company and the Subsidiaries, to preserve the assets and properties of the
Company and the Subsidiaries in good repair and condition, to keep available the
services of its present officers and employees and to preserve the current
relationships of the Company and the Subsidiaries with customers, suppliers and
other Persons with which the Company or any Subsidiary has material business
relations, in each case in the ordinary course of business and in a manner
consistent with past practice. Without limiting the generality of the foregoing,
except as contemplated by any other provision of this Agreement or as set forth
in Section 5.01 of the Company Disclosure Schedule, the Company agrees that
neither the Company nor any Subsidiary shall, between the date of this Agreement
and the Effective Time, directly or indirectly, do any of the following without
the prior written consent of Parent, which consent shall not be unreasonably
withheld or delayed:
(a) amend or otherwise change the Certificate of Incorporation or
Bylaws of the Company;
(b) issue, deliver, sell, transfer, dispose of, pledge or encumber
any shares of its capital stock or equity interests, any other voting securities
or any securities convertible into, or any rights, warrants or options to
acquire, any such shares of capital stock or equity interests, voting securities
or convertible securities, other than (i) the issuance of shares of Company
Common Stock issuable pursuant to Company Stock Options and Company Warrants
outstanding on the date hereof and set forth in Section 3.03(a)(i) of the
Company Disclosure Schedule, (ii) the issuance of shares of Company Common Stock
upon exercise of rights to purchase shares of Company Common Stock outstanding
under the ESPP as of the date hereof and set forth in Section 3.03(a)(i) of the
Disclosure Schedule or (iii) the issuance of shares of Company Common Stock or
options therefor to newly hired or promoted employees of the Company or any
Subsidiary (other than executive officers of the Company) pursuant to the
Company Stock Plans in the ordinary course of business consistent with past
practice; provided, that such options have a per share exercise price equal to
or greater than the Merger Consideration;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect to any
of its capital stock or equity
26
interests, except for dividends by any direct or indirect wholly owned
Subsidiary to the Company or any other wholly owned Subsidiary;
(d) other than in the case of wholly-owned Subsidiaries and other
than cashless exercises of Company Stock Options in accordance with their terms,
reclassify, combine, split, subdivide or redeem, or purchase or otherwise
acquire, directly or indirectly, any capital stock or equity interests of the
Company or any Subsidiary;
(e) (i) acquire (including by merger, consolidation, or acquisition
of stock or assets or any other business combination) any corporation,
partnership, other business or business organization or any division or business
unit thereof; provided that, the Company may consummate the acquisition
transactions described in Section 5.01(e) of the Company Disclosure Schedule on
the terms described therein; provided that, the Company shall provide to Parent,
immediately upon the signing of the definitive documentation in respect of any
such acquisition, all financial information that the Company would be required
to file with the SEC on Form 8-K following the consummation of such acquisition
transaction as a result of the consummation of such acquisition transaction;
(ii) incur, guarantee or modify any Indebtedness, other than the incurrence of
Indebtedness under the Company's $75,000,000 senior unsecured revolving credit
facility, dated as of April 13, 2005, as amended, among the Company, Fleet
National Bank, and the other lenders and agents named therein, in the ordinary
course of business; (iii) except to the extent the amount is reflected in the
2005 operating budget of the Company provided to Parent and Merger Co prior to
the date hereof, authorize, or make any commitment with respect to, any single
capital expenditure which is in excess of $500,000 or capital expenditures which
are, in the aggregate, in excess of $2,000,000; (iv) enter into any new line of
business; (v) other than in the ordinary course of business, make any loans,
advances or capital contributions to, or investments in, Persons other than
wholly owned Subsidiaries or (vi) other than in the ordinary course of business
and consistent with past practice, sell, lease, license, encumber or otherwise
dispose of (by merger, consolidation, sale of stock or assets or otherwise) any
of its material assets;
(f) adopt or enter into a plan of complete or partial liquidation,
dissolution, restructuring, recapitalization or other reorganization of the
Company or any Subsidiary (other than the Merger);
(g) (i) increase the salary, wages, benefits, bonuses or other
compensation payable or to become payable to its current or former directors,
officers or employees, except for increases required under employment agreements
existing on the date hereof and disclosed to Parent; (ii) enter into any
employment, change of control or severance agreement with, or establish, adopt,
enter into or amend any Plan, bonus, profit sharing, thrift, stock option,
restricted stock, pension, retirement, welfare, deferred compensation,
employment, change of control, termination, severance or other benefit plan,
agreement, policy or arrangement for the benefit of, any current or former
director, officer or employee; (iii) exercise any discretion to accelerate the
vesting or payment of any compensation or benefit under any Plan; (iv) grant any
new awards under any Plan or (v) take any action to fund the payment of
compensation or benefits under any Plan except, in the case of clauses (i), (ii)
and (v), in the ordinary course of business, consistent with
27
past practices with respect to employees that are not officers or directors, or
as may be required by the terms of any such plan, agreement, policy or
arrangement in effect on the date hereof or to comply with applicable law;
(h) (i) except as required by Law or the Treasury Regulations
promulgated under the Code, make any change (or file any such change) in any
method of Tax accounting for a material amount of Taxes or (ii) make, change or
rescind any material Tax election, settle or compromise any material Tax
liability, file any amended Tax Return involving a material amount of additional
Taxes (except as required by Law), enter into any closing agreement relating to
a material amount of Taxes, or waive or extend the statute of limitations in
respect of Taxes (other than pursuant to extensions of time to file Tax Returns
obtained in the ordinary course of business), other than, in each case, in the
ordinary course of business and consistent with past practice;
(i) make any change to its methods of accounting in effect as of
June 30, 2005, except (i) as required by changes in GAAP or (ii) as may be
required by a change in applicable Law;
(j) write up, write down or write off the book value of any of its
assets, other than (i) in the ordinary course of business and consistent with
past practice or (ii) as may be required by GAAP;
(k) waive, settle or satisfy any material claim (which shall
include, but not be limited to, any pending or threatened material Action),
other than in the ordinary course of business and consistent with past practice;
(l) enter into any agreement that restricts the ability of the
Company or any of its Subsidiaries to engage or compete in any line of business
in any respect material to the business of the Company and the Subsidiaries,
taken as a whole;
(m) other than in the ordinary course of business and on terms not
materially adverse to the Company and the Subsidiaries taken as a whole, enter
into, amend, modify, cancel or consent to the termination of any Specified
Contract or any Contract that would be a Specified Contract if in effect on the
date of this Agreement;
(n) enter into, renew or amend in any material respect any
transaction, agreement, arrangement or understanding between (i) the Company or
any Subsidiaries, on the one hand, and (ii) any Affiliate of the Company (other
than any of the Company's Subsidiaries), on the other hand, of the type that
would be required to be disclosed under Item 404 of Regulation S-K under the
Securities Act;
(o) (i) assign, transfer, license or sublicense, mortgage or
encumber any material Intellectual Property, except for non-exclusive licenses
or non-exclusive sublicenses of Owned Intellectual Property in the ordinary
course of business, or (ii) fail to pay any fee, take any action or make any
filing reasonably necessary to maintain its ownership of the material Owned
Intellectual Property;
28
(p) (i) take any action that would reasonably be likely to prevent
or materially delay satisfaction of the conditions contained in Section 7.01 or
7.02 or the consummation of the Merger, or (ii) take any action that would have
or would reasonably be expected to have a Company Material Adverse Effect; or
(q) announce an intention, enter into any formal or informal
agreement or otherwise make a commitment, to do any of the foregoing.
ARTICLE VI.
ADDITIONAL AGREEMENTS
SECTION 6.01 Proxy Statement; Other Filings. (a) As promptly as
practicable following the date of this Agreement (but in any event within 20
business days thereafter unless the parties shall otherwise agree), (a) the
Company shall prepare and file with the SEC the preliminary Proxy Statement, and
(b) each of the Company, Parent and Merger Co shall, or shall cause their
respective Affiliates to, prepare and file with the SEC all other documents
(including the Schedule 13E-3) that are required to be filed by such party in
connection with the transactions contemplated hereby (the "Other Filings"). Each
of the Company, Parent and Merger Co shall furnish all information concerning
itself and its Affiliates that is required to be included in the Proxy Statement
or, to the extent applicable, the Other Filings, or that is customarily included
in proxy statements or other filings prepared in connection with transactions of
the type contemplated by this Agreement. Each of the Company, Parent and Merger
Co shall use its reasonable best efforts to respond as promptly as practicable
to any comments of the SEC with respect to the Proxy Statement or the Other
Filings, and the Company shall use its reasonable best efforts to cause the
definitive Proxy Statement to be mailed to the Company's stockholders as
promptly as reasonably practicable after the date of this Agreement and, in any
event, within five (5) business days after the SEC clears the Proxy Statement.
Each party shall promptly notify the other parties upon the receipt of any
comments from the SEC or its staff or any request from the SEC or its staff for
amendments or supplements to the Proxy Statement or the Other Filings and shall
provide the other parties with copies of all correspondence between it and its
representatives, on the one hand, and the SEC and its staff, on the other hand,
relating to the Proxy Statement or the Other Filings. If at any time prior to
the Effective Time, any information relating to the Company, Parent, Merger Co
or any of their respective Affiliates, officers or directors, should be
discovered by the Company, Parent or Merger Co which should be set forth in an
amendment or supplement to the Proxy Statement or the Other Filings, so that the
Proxy Statement or the Other Filings shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading, the party that
discovers such information shall promptly notify the other parties, and an
appropriate amendment or supplement describing such information shall be filed
with the SEC and, to the extent required by applicable Law, disseminated to the
stockholders of the Company. Notwithstanding anything to the contrary stated
above, prior to filing or mailing the Proxy Statement or filing the Other
Filings (or, in each case, any amendment or supplement thereto) or responding to
any comments of the SEC with respect thereto, the party responsible for filing
or mailing such document shall provide the other parties an opportunity to
review and comment on such document or response and shall include in such
document or response comments reasonably proposed by the other party. The Proxy
Statement
29
and the Other Filings that are filed by the Company will comply as to form in
all material respects with the requirements of the Exchange Act and the rules
and regulations promulgated thereunder. The Company hereby covenants and agrees
that none of the information included or incorporated by reference in the Proxy
Statement or in the Other Filings to be made by the Company will, in the case of
the Proxy Statement, at the date it is first mailed to the Company's
stockholders or at the time of the Company Stockholders' Meeting or at the time
of any amendment or supplement thereof, or, in the case of any Other Filing, at
the date it is first mailed to the Company's stockholders or at the date it is
first filed with the SEC, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading, except that no covenant is made by the Company
with respect to statements made or incorporated by reference therein based on
information supplied by Parent or Merger Co or any Affiliate of Parent or Merger
Co in connection with the preparation of the Proxy Statement or the Other
Filings for inclusion or incorporation by reference therein. Parent and Merger
Co hereby covenant and agree that none of the information supplied by Parent or
Merger Co or any Affiliate of Parent or Merger Co for inclusion or incorporation
by reference in the Proxy Statement or the Other Filings will, in the case of
the Proxy Statement, at the date it is first mailed to the Company's
stockholders or at the time of the Company Stockholders' Meeting or at the time
of any amendment or supplement thereof, or, in the case of any Other Filing, at
the date it is first mailed to the Company's stockholders or, at the date it is
first filed with the SEC, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. No covenant is made by either Parent or Merger Co
with respect to statements made or incorporated by reference therein based on
information supplied by the Company in connection with the preparation of the
Proxy Statement or the Other Filings for inclusion or incorporation by reference
therein. All Other Filings that are filed by Parent or Merger Co will comply as
to form in all material respects with the requirements of the Exchange Act and
the rules and regulations promulgated thereunder.
SECTION 6.02 Company Stockholders' Meeting. The Company shall duly call,
give notice of, convene and hold a meeting of its stockholders (the "Company
Stockholders' Meeting"), as promptly as practicable after the date of this
Agreement, and in any event shall hold the Company Stockholders' Meeting within
25 business days after the Proxy Statement is mailed to its stockholders, for
the purpose of voting upon the adoption of this Agreement. Subject to a
determination by the Company Board or the Independent Committee in good faith,
following consultation with its outside legal counsel, that such action or
actions would constitute a breach of their fiduciary obligations under
applicable Law, (i) the Company Board shall recommend to holders of the Shares
that they adopt this Agreement and the Company shall include such recommendation
in the Proxy Statement and (ii) the Company will use reasonable best efforts to
solicit from its stockholders proxies in favor of the adoption of this Agreement
and will take all other action necessary or advisable to secure the Stockholder
Approval. The Company's obligations pursuant to the first sentence of this
Section 6.02 shall not be affected by the commencement, public proposal, public
disclosure or communication to the Company of an Acquisition Proposal or a
Change in Board Recommendation by the Company Board or the Independent
Committee.
30
SECTION 6.03 Access to Information; Confidentiality. (a) Except as
otherwise prohibited by applicable Law or as would violate any attorney-client
privilege (it being understood that the parties shall make appropriate
substitute disclosure arrangements to cause such information to be provided in a
manner that does not result in such violation), from the date of this Agreement
until the Effective Time, the Company shall (and shall cause the Subsidiaries
to): (i) provide to Parent and to the officers, directors, employees,
accountants, consultants, legal counsel, financing sources, agents and other
representatives (collectively, "Representatives") of Parent reasonable access,
during normal business hours and upon reasonable prior notice by Parent, to the
officers, employees, agents, properties, offices and other facilities of the
Company and the Subsidiaries and to the books and records thereof, (ii) furnish
to Parent within 20 days of the end of each month following the date hereof, an
unaudited monthly consolidated balance sheet of the Company and its Subsidiaries
for the month then ended and related consolidated statements of operations, cash
flows and stockholders' equity; and (iii) furnish promptly to Parent such other
information concerning the business, properties, contracts, assets, liabilities,
personnel and other aspects of the Company and the Subsidiaries as Parent or its
Representatives may reasonably request.
(b) All information obtained by Parent or its Representatives
pursuant to this Section 6.03 shall be kept confidential in accordance with the
Amended and Restated Mutual Non-Disclosure Agreement, dated July 15, 2005 (the
"Confidentiality Agreement"), between Carlyle Investment Management, L.L.C. and
the Company.
SECTION 6.04 Acquisition Proposals. (a) The Company shall, and the Company
shall cause its Subsidiaries and the officers, directors, employees,
representatives and agents of the Company and its Subsidiaries to (i)
immediately cease any discussions or negotiations with any parties that may be
ongoing with respect to an Acquisition Proposal and request the prompt return or
destruction of all confidential information previously furnished to such parties
or their representatives, (ii) not modify, waive, amend or release any
standstill, confidentiality or similar agreements entered into prior to the date
hereof or any confidentiality agreement entered into by the Company or any of
its Subsidiaries between the date hereof and the Effective Time and (iii)
enforce the provisions of any such agreements. Subject to Section 6.04(b), the
Company shall not, nor shall the Company permit any of its Subsidiaries or the
officers, directors, employees, representatives or agents of the Company or its
Subsidiaries to, directly or indirectly, (i) solicit, initiate or knowingly
encourage (including by way of furnishing non-public information or providing
access to its properties, books, records or personnel) any inquiries regarding,
or the making of any proposal or offer that constitutes, or could reasonably be
expected to lead to, an Acquisition Proposal, (ii) have any discussions or
participate in any negotiations regarding an Acquisition Proposal, or execute or
enter into any agreement, understanding or arrangement with respect to an
Acquisition Proposal, or approve or recommend or propose to approve or recommend
an Acquisition Proposal or any agreement, understanding or arrangement relating
to an Acquisition Proposal or (iii) take any action to exempt any Person from
the restrictions on business combinations contained in Section 203 or otherwise
cause such restrictions not to apply (or resolve or authorize or propose to
agree to do any of the foregoing actions).
(b) Notwithstanding Section 6.04(a), if, prior to obtaining the
Stockholder Approval following a bona fide written Acquisition Proposal by any
Person, which Acquisition Proposal was made after the date hereof and did not
result from a breach of this Section 6.04, the
31
Company Board or the Independent Committee determines in good faith, (i) after
consultation with its financial advisor, that such Acquisition Proposal
constitutes or could reasonably be expected to lead to a Superior Proposal and
(ii) after consultation with outside legal counsel, that the failure to take the
actions set forth in clauses (x) and (y) below with respect to such Acquisition
Proposal would constitute a breach of its fiduciary obligations under applicable
Law, the Company may, in response to such Acquisition Proposal, subject to
compliance with this Section 6.04, and after giving notice to Parent (x) furnish
information with respect to the Company to the Person who has made such
Acquisition Proposal pursuant to a confidentiality agreement on terms no more
favorable to such Person than those contained in the Confidentiality Agreement;
provided that all such information has previously been provided to Parent or is
provided to Parent substantially concurrently with the time it is provided to
such Person, and (y) participate in discussions and negotiations regarding such
Acquisition Proposal. The Company shall advise Parent orally and in writing of
the receipt of any Acquisition Proposal or any inquiry with respect to, or that
could reasonably be expected to lead to, any Acquisition Proposal (in each case
within one business day of receipt thereof), specifying the material terms and
conditions thereof and the identity of the party making such Acquisition
Proposal or inquiry and the Company shall provide to Parent (within such
timeframe), a copy of all written materials provided to the Company or any of
its Subsidiaries in connection with any such Acquisition Proposal or inquiry.
The Company agrees that it and its Subsidiaries will not enter into any
confidentiality agreement with any Person subsequent to the date hereof which
prohibits the Company from providing such information to Parent. The Company
shall notify Parent (within one business day) orally and in writing of any
material modifications to the financial or other material terms of such
Acquisition Proposal or inquiry and shall provide to Parent, within such
timeframe, a copy of all written materials subsequently provided to or by the
Company or any Subsidiary in connection with any such Acquisition Proposal or
inquiry. For purposes of this Agreement, "Acquisition Proposal" means any
proposal or offer from any Person or group (other than Parent and its
Affiliates) relating to any direct or indirect acquisition or purchase of 20% or
more of the assets of the Company and its Subsidiaries, taken as a whole, or 20%
or more of any class of equity securities of the Company then outstanding, any
tender offer or exchange offer that if consummated would result in any Person
beneficially owning 20% or more of any class of equity securities of the Company
then outstanding, and any merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
Company, other than the transactions contemplated by this Agreement.
(c) Except as set forth in Sections 6.04(d) and (e), neither the
Company Board nor the Independent Committee shall, directly or indirectly, (i)
withdraw or modify, or propose publicly to withdraw or modify, or resolve to
withdraw or modify, in a manner adverse to Parent, the approval or
recommendation by the Company Board or the Independent Committee of the Merger,
this Agreement, the Voting Agreement, the Contribution Agreement or the Other
Transactions; (ii) approve or recommend, or propose publicly to approve or
recommend, or resolve to approve or recommend, any Acquisition Proposal (any of
the actions referred to in the foregoing clauses (i) and (ii), whether taken by
the Company Board or any committee thereof, including the Independent Committee,
a "Change in Board Recommendation"); (iii) approve or recommend or allow the
Company or any of its Subsidiaries to enter into any letter of intent,
acquisition agreement or any similar agreement or understanding (A) constituting
or related to, or that is intended to or could reasonably be expected to lead
to, any Acquisition Proposal or (B) requiring it to abandon, terminate or fail
to consummate the Merger or any Other Transaction
32
contemplated by this Agreement; or (iv) effect any transaction contemplated by
any Acquisition Proposal.
(d) Notwithstanding Section 6.04(c), the Company Board or the
Independent Committee may, prior to obtaining the Stockholder Approval only in
response to a Superior Proposal received by the Company Board or the Independent
Committee after the date of this Agreement, terminate this Agreement to enter
into an agreement with respect to such Superior Proposal, but only if:
(A) such Superior Proposal did not result from a breach by the
Company of this Section 6.04;
(B) the Company Board or the Independent Committee shall have first
provided prior written notice to Parent that it is prepared to terminate
this Agreement to enter into an agreement with respect to a Superior
Proposal, which notice shall attach the most current version of any
written agreement relating to the transaction that constitutes such
Superior Proposal, the identity of the party making such Superior Proposal
and any other material terms and conditions thereof;
(C) Parent does not make, within two business days after the receipt
of such notice (it being understood and agreed that any change to the
financial or other material terms of such Superior Proposal shall require
a new notice to Parent and a new two day business period), a binding,
written and complete (including any schedules or exhibits) proposal that
the Company Board or the Independent Committee determines in good faith,
after consultation with its financial advisor, causes the Acquisition
Proposal that constituted a Superior Proposal to no longer constitute a
Superior Proposal and which, by its terms, may be accepted at any time
within such two business day period (or such subsequent two business day
period, as the case may be); and
(D) in the event of any termination of this Agreement by the Company
pursuant to this paragraph, the Company pays the Company Termination Fee
under Section 8.03(b) concurrently with and as a condition of such
termination.
The Company agrees that, during the period of two business days prior to
terminating this Agreement to enter into an agreement with respect to a Superior
Proposal (and any subsequent two business day period pursuant to the
parenthetical in clause (C) above), the Company Board or the Independent
Committee shall consider in good faith any revisions to the terms of the
transaction contemplated by this Agreement that are proposed by Parent.
(e) Notwithstanding Section 6.04(c), at any time prior to obtaining
the Stockholder Approval, if the Company Board or the Independent Committee has
concluded in good faith, following consultation with its outside legal counsel,
that the failure of the Company Board or the Independent Committee to make a
Change in Board Recommendation would constitute a breach of its fiduciary
obligations under applicable Law, then the Company Board or the Independent
Committee may make a Change in Board Recommendation.
(f) Nothing contained in this Section 6.04 shall prohibit the
Company from complying with Rules 14a-9, 14d-9 or 14e-2 promulgated under the
Exchange Act if, in the good
33
faith judgment of the Company Board or the Independent Committee, after
consultation with its outside legal counsel, the failure to do so would be
inconsistent with its fiduciary duties under applicable Law or is otherwise
required under applicable Law; provided, however, that the Company Board may not
(i) make a Change in Board Recommendation or (ii) take any position under Rule
14e-2(a) other than recommending rejection of such tender or exchange offer, in
each case, without first complying with Section 6.04 (c), (d) and (e).
(g) For purposes of this Agreement, "Superior Proposal" means any
bona fide written Acquisition Proposal not solicited or initiated in violation
of this Section 6.04 that (1) relates to an acquisition by a Person or group
acting in concert of either of (A) more than 50% of the outstanding Shares
pursuant to a tender offer, merger or otherwise or (B) more than 50% of the
assets of the Company and the Subsidiaries, taken as a whole, (2) is on terms
that the Company Board or the Independent Committee determines in its good faith
judgment (after consultation with its financial advisor) are more favorable to
the Company's stockholders (in their capacities as stockholders) from a
financial point of view than this Agreement (taking into account any alterations
to this Agreement agreed to by Parent or Merger Co in response thereto) and (3)
which the Company Board or the Independent Committee determines in good faith
(after consultation with a financial advisor of nationally recognized reputation
and its outside legal counsel) is reasonably capable of being consummated,
taking into account all financing contingencies in connection with such
Acquisition Proposal.
SECTION 6.05 Directors' and Officers' Indemnification and Insurance(a) .
(a) For a period of six years after the Effective Time, unless otherwise
required by applicable Law, the certificate of incorporation and bylaws (or
equivalent organizational documents) of the Surviving Corporation and its
Subsidiaries shall contain provisions no less favorable with respect to the
indemnification of and advancement of expenses to directors and officers than
are set forth in the Certificate of Incorporation or Bylaws (or equivalent
organizational documents) of the Company (or the relevant Subsidiary) as in
effect on the date hereof. Parent shall and shall cause the Surviving
Corporation to indemnify and advance expenses to, each present and former
director or officer of the Company and each Subsidiary (collectively, the
"Indemnified Parties"), in and to the extent of their capacities as such and not
as stockholders of the Company or any Subsidiary, in respect of actions,
omissions or events through the Effective Time to the fullest extent permitted
by Law. Without limiting the generality of the preceding sentence, if any
Indemnified Party becomes involved in any actual or threatened action, suit,
claim, proceeding or investigation covered by this Section 6.05 after the
Effective Time, Parent shall, or shall cause the Surviving Corporation to, to
the fullest extent permitted by Law, promptly advance to such Indemnified Party
his or her legal or other expenses (including the cost of any investigation and
preparation incurred in connection therewith).
(b) The Surviving Corporation shall either (i) cause to be obtained
a "tail" insurance policy with a claims period of at least six years from the
Effective Time with respect to directors' and officers' liability insurance in
amount and scope at least as favorable as the Company's existing policies for
claims arising from facts or events that occurred prior to the Effective Time or
(ii) maintain the existing officers' and directors' liability insurance policies
maintained by the Company (provided that the Surviving Corporation may
substitute therefor policies of at least the same coverage containing terms and
conditions that are not less favorable to the Indemnified Parties) for a period
of six years after the Effective Time so long as the annual
34
premium therefor is not in excess of 200% of the last annual premium paid prior
to the date hereof; provided, however, that if the existing officers' and
directors' liability insurance policies expire, are terminated or cancelled
during such six-year period or require an annual premium in excess of 200% of
the current premium paid by the Company for such insurance, the Company will
obtain as much coverage as can be obtained for the remainder of such period for
a premium not in excess of 200% (on an annualized basis) of such current
premium.
(c) If Parent or the Surviving Corporation or any of its successors
or assigns (i) shall consolidate with or merge into any other corporation or
entity and shall not be the continuing or surviving corporation or entity of
such consolidation or merger or shall cease to continue to exist for any reason
or (ii) shall transfer all or substantially all of its properties and assets to
any individual, corporation or other entity, then, and in each such case, proper
provisions shall be made so that the successors and assigns of Parent or the
Surviving Corporation and the transferee or transferees of such properties and
assets, as applicable, shall assume all of the obligations set forth in this
Section 6.05.
SECTION 6.06 Employee Benefits Matters. (a) Parent hereby agrees that, for
a period of one year after the Effective Time, it shall, or it shall cause the
Surviving Corporation and its subsidiaries to, (i) provide each employee of the
Company and the Subsidiaries as of the Effective Time (each, an "Employee"),
with salary, employee benefits and incentive compensation opportunities (other
than equity-based compensation) that are substantially comparable in the
aggregate than those provided to such Employees immediately prior to the
Effective Time. From and after the Effective Time, Parent shall cause the
Surviving Corporation and its subsidiaries to comply with the terms of
(including, without limitation, terms which provide for amendment or
termination) all contracts, agreements, arrangements, policies, plans and
commitments of the Company and the Subsidiaries as in effect immediately prior
to the Effective Time that are applicable to any current or former employees or
directors of the Company or any Subsidiary. Nothing herein shall be deemed to be
a guarantee of employment for any Employee, or to restrict the right of the
Surviving Corporation to terminate any Employee.
(b) Employees shall receive credit for all purposes (including for
purposes of eligibility to participate, vesting, benefit accrual and eligibility
to receive benefits, but excluding benefit accruals under any defined benefit
pension plan) under any employee benefit plan, program or arrangement
established or maintained by Parent, the Surviving Corporation or any of their
respective subsidiaries under which each Employee may be eligible to participate
on or after the Effective Time to the same extent recognized by the Company or
any of the Subsidiaries under comparable Plans immediately prior to the
Effective Time; provided, however, that such crediting of service shall not
operate to duplicate any benefit or the funding of any such benefit. Such plan,
program or arrangement shall credit each such Employee for service accrued or
deemed accrued on or prior to the Effective Time with the Company or any
Subsidiary; provided, however, that such crediting of service shall not operate
to duplicate any benefit or the funding of any such benefit.
(c) With respect to the welfare benefit plans, programs and
arrangements maintained, sponsored or contributed to by Parent or the Surviving
Corporation ("Purchaser Welfare Benefit Plans") in which an active Employee may
become eligible to participate in the
35
one-year period following the Effective Time, Parent shall (i) waive, or use
reasonable best efforts to cause its insurance carrier to waive, all limitations
as to preexisting and at-work conditions, if any, with respect to participation
and coverage requirements applicable to each active Employee under any Purchaser
Welfare Benefit Plan to the same extent waived under a comparable Plan and (ii)
use reasonable best efforts to cause any eligible expenses incurred by any
Employee and his or her covered dependents under comparable Plans during the
plan year in which such individuals move to a comparable Purchaser Welfare
Benefit Plan to be taken into account under the Purchaser Welfare Benefit Plans
for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket
requirements applicable to such Employee and his or her dependents as if such
amounts had been paid in accordance with the Purchaser Welfare Benefit Plans.
(d) On and after the date hereof, no future offering periods will be
commenced under the Company's ESPP. All offering periods in progress immediately
prior to the Effective Time shall cease and the Company shall terminate the ESPP
immediately prior to the Effective Time. With respect to Persons participating
in the ESPP, on the earlier of the date on which (i) the offering periods cease
and (ii) the ESPP terminates (and, in either case, who have not withdrawn from
or otherwise ceased participation in the Plan prior to such date), accumulated
contributions will be applied on such date to the purchase of Company Common
Stock in accordance with the ESPP's terms, it being understood that such
purchases of Common Stock shall occur no later than immediately prior to the
Effective Time. With respect to matters described in this Section 6.06(d), any
material notices or other communication materials to Parent's employees shall be
subject to prior review and approval of Parent.
(e) For the avoidance of doubt, it is expressly agreed that the
provisions of Section 9.06 shall apply to this Section 6.06.
SECTION 6.07 Notification of Certain Matters. Subject to applicable Laws
and the instructions of any Governmental Authority, each of the Company and
Parent shall keep the other apprised of the status of matters relating to
completion of the transactions contemplated hereby, including promptly
furnishing the other with copies of notices or other communications received by
Parent or the Company, as the case may be, or any of its Subsidiaries, from any
third Person and/or any Governmental Authority with respect to the Merger and
the other transactions contemplated by this Agreement. Between the date hereof
and the Effective Time, (i) the Company shall promptly notify Parent in writing
of any breach of any representation, warranty or covenant of the Company
contained herein, (ii) Parent will promptly notify the Company in writing of any
breach of any representation, warranty or covenant of Parent or Merger Co
contained herein and (iii) the Company will notify Parent in writing and Parent
will notify the Company in writing of any communication received (A) from any
Person alleging a consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement or (B) from any
Governmental Authority in connection with the transactions contemplated by this
Agreement.
SECTION 6.08 Financing. (a) Parent shall use its reasonable best efforts
to arrange the Debt Financing on the terms and conditions described in the
Commitment Letter (provided that Parent may replace or amend the Commitment
Letter so long as the terms would not adversely affect or delay the ability of
Parent or Merger Co to consummate the transactions
36
contemplated hereby or the likelihood of consummation of the transactions
contemplated hereby), including using reasonable best efforts to (i) satisfy on
a timely basis all terms, conditions, representations and warranties applicable
to Parent set forth in the Commitment Letter; (ii) enter into definitive
agreements with respect thereto on the terms and conditions contemplated by the
Commitment Letter or on other terms acceptable to Parent; and (iii) enforce its
rights under the Commitment Letter. Parent will furnish correct and complete
copies of all such definitive agreements (excluding any fee letters which, by
their terms, are confidential) to the Company promptly upon their execution. If
any portion of the Debt Financing becomes unavailable on the terms and
conditions contemplated in the Commitment Letter, Parent shall use its
reasonable best efforts to arrange to obtain alternative financing from
alternative sources (on terms and conditions no less favorable to Parent than
the terms and conditions as set forth in the Commitment Letter) in an amount
sufficient to consummate the transactions contemplated by this Agreement.
(b) Parent shall keep the Company informed with respect to all
material activity concerning the status of the financings contemplated by the
Commitment Letter and shall give the Company prompt notice of any material
adverse change with respect to such financings. Without limiting the foregoing,
Parent agrees to notify the Company promptly, and in any event within two (2)
business days, if at any time prior to the Closing Date (i) the Commitment
Letter shall expire or be terminated for any reason, (ii) any financing source
that is a party to the Commitment Letter notifies Parent that such source no
longer intends to provide financing to Parent on the terms set forth therein, or
(iii) for any reason Parent no longer believes in good faith that it will be
able to obtain all or any portion of the financing contemplated by the
Commitment Letter on substantially the terms described therein. Parent shall
not, without the prior written consent of the Company, enter into any
transaction, including any merger, acquisition, joint venture, disposition,
lease, contract or debt or equity financing, that could reasonably be expected
to impair, delay or prevent Parent's obtaining of the financing contemplated by
the Commitment Letter. Parent shall not amend or alter, or agree to amend or
alter, the Commitment Letter in any manner that would impair, delay or prevent
the transactions contemplated by this Agreement without the prior written
consent of the Company.
(c) If the Commitment Letter shall be terminated or modified in a
manner materially adverse to Parent for any reason, Parent shall use its
reasonable best efforts to obtain, and, if obtained, will provide the Company
with a copy of, a new financing commitment that provides for at least the same
amount of financing as the Commitment Letter as originally issued and on terms
and conditions no less favorable to Parent or Merger Co than those included in
the Commitment Letter.
(d) The Company agrees to provide, and shall cause the Subsidiaries
and its and their Representatives to provide, such cooperation (including with
respect to timeliness) in connection with the arrangement of the Debt Financing
(including, without limitation, the issuance of senior notes and/or senior
subordinated notes contemplated by the Commitment Letter) as may be reasonably
requested by Parent (provided that such requested cooperation does not
unreasonably interfere with the ongoing operations of the Company and the
Subsidiaries), including (i) participation in meetings, drafting sessions and
due diligence sessions, (ii) furnishing Parent and its financing sources with
financial and other pertinent information regarding the Company as may be
reasonably requested by Parent, including all financial
37
statements and financial data of the type required by Regulation S-X and
Regulation S-K under the Securities Act and of type and form customarily
included in private placements under Rule 144A of the Securities Act to
consummate the offering of secured or unsecured senior or senior subordinated
notes, (iv) assisting Parent and its financing sources in the preparation of (A)
offering documents for any of the Debt Financing and (B) materials for rating
agency presentations, (v) cooperating with the marketing efforts of Parent and
its financing sources for any of the Debt Financing, (vi) providing and
executing documents as may be reasonably requested by Parent, including a
certificate of the chief financial officer of the Company with respect to
solvency matters and consents of accountants for use of their reports in any
materials relating to the Debt Financing, (vii) facilitating the pledging of
collateral, and (viii) using reasonable best efforts to obtain accountants'
comfort letters, surveys and title insurance as reasonably requested by Parent.
Parent shall, promptly upon request by the Company, reimburse the Company for
all reasonable out-of-pocket costs incurred by the Company or the Subsidiaries
in connection with such cooperation.
SECTION 6.09 Further Action; Reasonable Best Efforts. Upon the terms and
subject to the conditions of this Agreement, each of the Company, Parent and
Merger Co agrees to use its reasonable best efforts to effect the consummation
of the Merger as soon as practicable after the date hereof. Without limiting the
foregoing, (a) each of the Company, Parent and Merger Co agrees to use its
reasonable best efforts to take, or cause to be taken, all actions necessary to
comply promptly with all legal requirements that may be imposed on itself with
respect to the Merger (which actions shall include furnishing all information
required under the HSR Act and in connection with approvals of or filings with
any other Governmental Authority) and shall promptly cooperate with and furnish
information to each other in connection with any such requirements imposed upon
any of them or any of their Subsidiaries in connection with the Merger and (b)
each of the Company, Parent and Merger Co shall, and shall cause its
Subsidiaries to, use its or their reasonable best efforts to obtain (and shall
cooperate with each other in obtaining) any consent, authorization, order or
approval of, or any exemption by, any Governmental Authority or other public or
private third Person required to be obtained or made by Parent, Merger Co, the
Company or any of their subsidiaries in connection with the Merger or the taking
of any action contemplated thereby or by this Agreement.
SECTION 6.10 Public Announcements. The initial press release relating to
this Agreement shall be a joint press release the text of which has been agreed
to by each of Parent and the Company. Thereafter, each of Parent and the Company
shall consult with each other before issuing any press release or otherwise
making any public statements with respect to this Agreement or the Merger,
except to the extent public disclosure is required by applicable Law or the
requirements of the NASDAQ National Market in which case the issuing party shall
use its reasonable best efforts to consult with the other party before issuing
any such release or making any such public statement.
SECTION 6.11 Resignations. The Company shall use its reasonable best
efforts to obtain and deliver to Parent at the Closing evidence reasonably
satisfactory to Parent of the resignation effective as of the Effective Time, of
those directors of the Company or any Subsidiary designated by Parent to the
Company in writing at least ten business days prior to the Closing.
38
ARTICLE VII.
CONDITIONS TO THE MERGER
SECTION 7.01 Conditions to the Obligations of Each Party. The obligations
of the Company, Parent and Merger Co to consummate the Merger are subject to the
satisfaction or waiver in writing (where permissible) as of the Closing of the
following conditions:
(a) Company Stockholder Approval. This Agreement shall have been
adopted by the requisite affirmative vote of the stockholders of the Company in
accordance with the DGCL and the Company's Certificate of Incorporation.
(b) Antitrust Approvals and Waiting Periods. Any waiting period (and
any extension thereof) applicable to the consummation of the Merger and the
transactions contemplated by the Contribution Agreement and the Equity Funding
Letter under applicable United States antitrust Laws, including the HSR Act and
applicable foreign antitrust or competition Laws, shall have expired or been
terminated, and any approvals required thereunder shall have been obtained.
(c) No Order. No Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any injunction, order, decree or ruling
(whether temporary, preliminary or permanent) which is then in effect and has
the effect of making consummation of the Merger illegal or otherwise preventing
or prohibiting consummation of the Merger.
(d) Governmental Consents. Any other approval of any Governmental
Authority or waiting periods under any applicable law or regulation of any
Governmental Authority shall have been obtained or have expired (without the
imposition of any material condition) if the failure to obtain any such approval
or the failure of any such waiting period to expire would constitute a material
violation of Law or subject any party to any material fine or other material
adverse consequences.
SECTION 7.02 Conditions to the Obligations of Parent and Merger Co. The
obligations of Parent and Merger Co to consummate the Merger are subject to the
satisfaction or waiver in writing (where permissible) as of the Closing of the
following additional conditions:
(a) Representations and Warranties.
(i) The representations and warranties set forth in Section 3.03 and
Section 3.04 shall be true and correct in all material respects as of the
Closing Date as though made on and as of such date (except to the extent
that any such representation and warranty expressly speaks as of an
earlier date, in which case such representation and warranty shall be true
and correct as of such earlier date); and
(ii) The other representations and warranties of the Company set
forth in this Agreement shall be true and correct (disregarding any
Company Material Adverse Effect, materiality or similar qualifiers
therein) as of the Effective Time as though made on and as of such date
and time (except to the extent that any such representation and warranty
expressly speaks as of an earlier date, in which case such representation
and warranty shall be true and correct (disregarding any Company Material
Adverse Effect, materially
39
or similar qualifiers) as of such earlier date); provided, however, that
notwithstanding anything herein to the contrary, the condition set forth
in this Section 7.02(a)(ii) shall be deemed to have been satisfied even if
the representations and warranties of the Company are not so true and
correct, unless the failure of such representations and warranties of the
Company to be so true and correct, individually or in the aggregate, has
had, or would reasonably be expected to have, a Company Material Adverse
Effect.
(b) Agreements and Covenants. The Company shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Effective Time.
(c) Officer's Certificate. The Company shall have delivered to each
of Parent and Merger Co a certificate, dated the date of the Closing, signed by
an officer on behalf of the Company and certifying as to the satisfaction of the
conditions specified in Sections 7.02(a) and 7.02(b).
(d) No Company Material Adverse Effect. Since the date of this
Agreement, there shall not have occurred any event, circumstance, development,
change or effect that has had, or could reasonably be expected to have, a
Company Material Adverse Effect.
(e) Debt Financing. The Company, Parent or Merger Co shall have
received the proceeds of the Debt Financing on the terms set forth in the
Commitment Letter or the proceeds of alternate debt financing on the terms and
conditions set forth in the alternate commitment letters described in Section
6.08(c) in the same amount and on terms and conditions no less favorable to
Parent and Merger Co than those included in the Commitment Letter.
(f) Dissenting Shares. The holders of not more than ten percent
(10%) of the Shares outstanding immediately prior to the Effective Time that are
entitled to appraisal of their Shares under Section 262 shall have properly
demanded, and not withdrawn, demands for the appraisal of Shares that are
eligible for appraisal under Section 262.
(g) FIRPTA Affidavit. Prior to the Closing on the Closing Date, the
Company shall cause to be delivered to Parent an executed affidavit, in
accordance with Treasury Regulation Section 1.897-2(h)(2), certifying that an
interest in the Company is not a U.S. real property interest within the meaning
of Section 897(c) of the Code and sets forth the Company's name, address and
taxpayer identification number.
(h) Third Party Consents. The third party consents listed on Section
7.02(h) of the Company Disclosure Schedule shall have been obtained and Parent
shall have been provided with written evidence of such consents in a form
reasonably acceptable to Parent.
SECTION 7.03 Conditions to the Obligations of the Company. The obligations
of the Company to consummate the Merger are subject to the satisfaction or
waiver in writing (where permissible) as of the Closing of the following
additional conditions:
(a) Representations and Warranties. The representations and
warranties of Parent and Merger Co set forth in this Agreement shall be true and
correct (disregarding any materiality or similar qualifiers therein) as of the
Effective Time as though made on and as of
40
such date and time (except to the extent that any such representation and
warranty expressly speaks as of an earlier date, in which case such
representation and warranty shall be true and correct as of such earlier date);
provided, however, that notwithstanding anything herein to the contrary, the
condition set forth in this 7.03(a) shall be deemed to have been satisfied even
if any representations and warranties of Parent and Merger Co are not so true
and correct, unless the failure of such representations and warranties of Parent
and Merger Co to be so true and correct, individually or in the aggregate, would
prevent the consummation of the Merger or prevent Parent or Merger Co from
performing its obligations under this Agreement.
(b) Agreements and Covenants. Merger Co shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Effective Time.
(c) Officer's Certificate. Merger Co shall have delivered to the
Company a certificate, dated the date of the Closing, signed by an officer on
behalf of Merger Co, certifying as to the satisfaction of the conditions
specified in Sections 7.03(a) and 7.03(b).
ARTICLE VIII.
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time by action taken or
authorized by the Board of Directors of the terminating party or parties or, in
the case of the Company, the Independent Committee, notwithstanding any
requisite adoption of this Agreement by the stockholders of the Company, and
whether before or after the stockholders of the Company have approved this
Agreement at the Company Stockholders' Meeting (other than termination by the
Company pursuant to Section 8.01(h), which such termination may only be effected
prior to obtaining the Stockholder Approval), as follows (the date of any such
termination, the "Termination Date"):
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company if the Effective Time shall not
have occurred on or before January 31, 2006 (the "Expiration Date"); provided,
however, that the right to terminate this Agreement under this Section 8.01(b)
shall not be available to the party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the failure of the
Effective Time to occur on or before such date;
(c) by either Parent or the Company if any Governmental Authority
shall have enacted, issued, promulgated, enforced or entered any injunction,
order, decree or ruling or taken any other action (including the failure to have
taken an action) which, in either such case, has become final and non-appealable
and has the effect of making consummation of the Merger illegal or otherwise
preventing or prohibiting consummation of the Merger;
(d) by Parent if (i) any of the representations and warranties of
the Company herein are or become untrue or inaccurate such that Section 7.02(a)
would not be satisfied, or (ii) there has been a breach on the part of the
Company of any of its
41
covenants or agreements herein such that Section 7.02(b) would not be satisfied,
and, in either such case, such breach has not been, or cannot be, cured within
30 days after notice to the Company;
(e) by the Company if (i) any of the representations and warranties
of either Parent or Merger Co herein are or become untrue or inaccurate such
that Section 7.03(a) would not be satisfied, or (ii) there has been a breach on
the part of either Parent or Merger Co of any of its covenants or agreements
herein such that Section 7.03(b) would not be satisfied, and, in either such
case, such breach has not been, or cannot be, cured within 30 days after notice
to Parent or Merger Co, as applicable;
(f) by either Parent or the Company if this Agreement shall fail to
receive the Stockholder Approval at the Company Stockholders' Meeting;
(g) by Parent if the Company Board or the Independent Committee
shall have (i) effected a Change of Board Recommendation, (ii) taken any
position contemplated by Rule 14e-2(a) of the Exchange Act with respect to any
Acquisition Proposal other than recommending rejection of such Acquisition
Proposal, or (iii) failed to include in the Proxy Statement distributed to
stockholders its recommendation that stockholders adopt and approve this
Agreement and the Merger; or
(h) by the Company pursuant to and in accordance with the terms of
Section 6.04(d).
SECTION 8.02 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 8.01, this Agreement shall forthwith become
void, and there shall be no liability under this Agreement on the part of any
party hereto (except that the provisions of Sections 6.03(b), this Section 8.02,
Section 8.03 and Article IX shall survive any such termination); provided,
however, that nothing herein shall relieve the Company from liability for any
material breach of any of its representations, warranties, covenants or
agreements set forth in this Agreement prior to such termination.
SECTION 8.03 Fees and Expenses. (a) Except as otherwise set forth in this
Section 8.03, all Expenses incurred in connection with this Agreement shall be
paid by the party incurring such expenses, whether or not the Merger is
consummated. "Expenses", as used in this Agreement, shall include all reasonable
out-of-pocket documented expenses (including all fees and expenses of counsel,
accountants, investment bankers, financing sources, hedging counterparties,
experts and consultants to a party hereto and its Affiliates) incurred by a
party or on its behalf (or, with respect to Parent and Merger Co, incurred by
their stockholders or on their behalf) in connection with or related to the
transactions contemplated hereby, including the authorization, preparation,
negotiation, execution and performance of this Agreement, the Voting Agreement,
the Contribution Agreement, the Commitment Letter and the other transactions
contemplated hereby or thereby (including the Debt Financing), the preparation,
printing, filing and mailing of the Proxy Statement, the solicitation of
stockholder approval, Financing and all other matters related to the closing of
the Merger.
(b) The Company agrees that if this Agreement shall be terminated:
42
(i) by Parent or the Company pursuant to Section 8.01(b) or (f), or
by Parent pursuant to Section 8.01(d), if (A) at or prior to the
Termination Date, a Person or group shall have made an Acquisition
Proposal to the Company or the stockholders of the Company or an
Acquisition Proposal shall have otherwise become publicly announced and
(B) no later than 12 months after the Termination Date, the Company enters
into, or submits to the stockholders of the Company for adoption, an
agreement with respect to an Acquisition Proposal, or an Acquisition
Proposal (which in each case need not be the same Acquisition Proposal as
the Acquisition Proposal described in clause (A)) is consummated, then the
Company will pay to Parent, on the date of the definitive agreement in
respect of such Acquisition Proposal or, if earlier, the date of the
consummation of the transaction in respect of such Acquisition Proposal,
as may be applicable, the Company Termination Fee in immediately available
funds, as directed by Parent in writing, provided, that for the purpose of
this Section 8.03(b), all references to "20%" in the definition of
Acquisition Proposal shall be changed to "50%"; or
(ii) by Parent pursuant to Section 8.01(g) or by the Company
pursuant to Section 8.01(h), then the Company shall pay to Parent, on the
Termination Date, the Company Termination Fee, in immediately available
funds, as directed by Parent in writing.
(c) For purposes of this Agreement, "Company Termination Fee" means
an amount equal to $30,000,000.
(d) Parent agrees that, if the Company shall terminate this
Agreement pursuant to Section 8.01(e) and, at the time of such termination, the
Company is not in material breach of any representation, warranty, covenant or
agreement contained herein and no representation or warranty of the Company
contained herein shall have become untrue such that the conditions set forth in
Section 7.02(a) would not be satisfied, Parent shall pay to the Company a fee of
$30,000,000 (the "Parent Termination Fee") in immediately available funds no
later than two business days after such termination by the Company.
(e) Each of the Company and Parent acknowledges that the agreements
contained in this Section 8.03 are an integral part of the transactions
contemplated by this Agreement. In the event that the Company or Parent shall
fail to pay the Company Termination Fee or the Parent Termination Fee when due,
the Company or Parent, as appropriate, shall reimburse the other party for all
reasonable costs and expenses actually incurred or accrued by such party
(including reasonable fees and expenses of counsel) in connection with the
collection under and the enforcement of this Section 8.03. Notwithstanding
anything to the contrary in this Agreement, the Company's right to receive
payment of the Parent Termination Fee pursuant to this Section 8.03 shall be the
exclusive remedy of the Company against Parent, Merger Co, the Guarantor or any
their respective stockholders, partners, members, affiliates, directors,
officers or agents for the loss suffered as a result of breach of this Agreement
by Parent or Merger Co or the failure of the Merger to be consummated, and upon
payment of the Parent Termination Fee in accordance with this Section 8.03, none
of Merger Co, the Guarantor or Parent, or any of their respective stockholders,
partners, members, affiliates, directors, officers or agents, as the case may
be, shall have any further liability or obligation relating to or arising out of
this Agreement
43
or the transactions contemplated by this Agreement (except that Parent also
shall be obligated with respect to the second sentence of this Section 8.03(e)).
SECTION 8.04 Amendment. This Agreement may be amended by the parties
hereto by action taken by or on behalf of their respective Boards of Directors
at any time prior to the Effective Time; provided, however, that, after the
adoption of this Agreement by the stockholders of the Company, no amendment
shall be made except as allowed under applicable Law. This Agreement may not be
amended except by an instrument in writing signed by each of the parties hereto.
SECTION 8.05 Waiver. Any party hereto may (a) extend the time for the
performance of any obligation or other act of any other party hereto, (b) waive
any inaccuracy in the representations and warranties of any other party
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any agreement of any other party or any condition to its own
obligations contained herein. Any such extension or waiver shall be valid if set
forth in an instrument in writing signed by the party or parties to be bound
thereby. The failure of any party to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights.
ARTICLE IX.
GENERAL PROVISIONS
SECTION 9.01 Non-Survival of Representations, Warranties and Agreements.
The representations and warranties in this Agreement and in any certificate
delivered pursuant hereto shall terminate at the Effective Time. This Section
9.01 shall not limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
SECTION 9.02 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (a) on the date
of delivery if delivered personally, (b) on the first business day following the
date of dispatch if delivered by a nationally recognized next-day courier
service, (c) on the fifth business day following the date of mailing if
delivered by registered or certified mail (postage prepaid, return receipt
requested) or (d) if sent by facsimile transmission, when transmitted and
receipt is confirmed. All notices under Section 6.04 or Article VIII shall be
delivered by courier and facsimile transmission to the respective parties at the
addresses provided in accordance with this Section 9.02. All notices hereunder
shall be delivered to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 9.02):
if to Parent or Merger Co:
Sunshine Acquisition Corp.
c/o The Carlyle Group
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx XX
Facsimile: (000) 000-0000
with a copy to:
44
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
if to the Company:
SS&C Technologies, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X.X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and a copy to:
Morris, Nichols, Arsht & Xxxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
SECTION 9.03 Certain Definitions. (a) For purposes of this Agreement:
"Affiliate" of a specified Person means a Person who, directly or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, such specified Person.
"beneficial owner", with respect to any Shares, has the meaning ascribed
to such term under Rule 13d-3(a) of the Exchange Act.
"business day" means any day on which the principal offices of the SEC in
Washington, D.C. are open to accept filings, or, in the case of determining a
date when any payment is due, any day on which banks are not required or
authorized to close in The City of New York.
45
"Company Material Adverse Effect" means any event, circumstance,
development, change or effect that is, individually or in the aggregate with all
other events, circumstances, developments, changes and effects, materially
adverse to the business, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken as a whole; provided that
none of the following shall constitute, or shall be considered in determining
whether there has occurred, and no event, circumstance, development, change or
effect resulting primarily from any of the following shall constitute, a Company
Material Adverse Effect: (i) the announcement of the execution of this
Agreement, or the pendency of consummation of the Merger, (ii) changes in the
national or world economy or financial markets as a whole or changes in general
economic conditions that affect the industries in which the Company and its
Subsidiaries conduct their business, so long as such conditions do not adversely
affect the Company or its Subsidiaries in a materially disproportionate manner
relative to other similarly situated participants in the industries or markets
in which they operate, (iii) any change in any applicable Law, rule or
regulation or GAAP or interpretation thereof after the date hereof, (iv) any
failure by the Company to meet any published or internally prepared estimates of
revenues or earnings for any period ending on or after the date of this
Agreement and prior to the Closing (it being understood that the facts and
circumstances giving rise to such failure may be deemed to constitute, and may
be taken into account in determining whether there has been, a Company Material
Adverse Effect if such facts and circumstances are not otherwise included in
clauses (i)-(iii) of this definition), and (v) a decline in the price of the
Company Common Stock on the NASDAQ National Market (it being understood that the
facts and circumstances giving rise to such decline may be deemed to constitute,
and may be taken into account in determining whether there has been, a Company
Material Adverse Effect if such facts and circumstances are not otherwise
included in clauses (i)-(iii) of this definition).
"control" (including the terms "controlled by" and "under common control
with") means the possession, directly or indirectly, or as trustee or executor,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, as trustee or
executor, by contract or credit arrangement or otherwise.
"Environmental Laws" means all foreign, federal, state, or local statutes,
common law, regulations, ordinances, codes, orders or decrees relating to the
protection of the environment, including the ambient air, soil, surface water or
groundwater, or relating to the protection of human health from exposure to
Materials of Environmental Concern.
"Indebtedness" means (i) indebtedness of the Company or any of its
Subsidiaries for borrowed money (including the aggregate principal amount
thereof, the aggregate amount of any accrued but unpaid interest thereon and any
prepayment penalties or other similar amounts payable in connection with the
repayment thereof on or prior to the Closing Date), (ii) obligations of the
Company or any of its Subsidiaries evidenced by bonds, notes, debentures,
letters of credit or similar instruments, (iii) obligations of the Company or
any of its Subsidiaries under capitalized leases, (iv) obligations of the
Company or any of its Subsidiaries under conditional sale, title retention or
similar agreements or arrangements creating an obligation of the Company or any
of its Subsidiaries with respect to the deferred purchase price of property, (v)
obligations in respect of interest rate and currency obligation swaps, xxxxxx or
similar arrangements and (vi) all obligations of any of the Company or any of
its Subsidiaries to
46
guarantee any of the foregoing types of obligations on behalf of any Person
other than the Company or any of its Subsidiaries.
"knowledge of the Company" or "Company's knowledge" means the actual
knowledge of any executive officer of the Company.
"Liens" means any pledges, claims, liens, charges, encumbrances, options
to purchase or lease or otherwise acquire any interest, conditional sales
agreement, restriction (whether on voting, sale, transfer, disposition or
otherwise) and security interests of any kind or nature whatsoever.
"Materials of Environmental Concern" means any hazardous, acutely
hazardous, or toxic substance or waste defined or regulated as such under
Environmental Laws; petroleum, asbestos, lead, polychlorinated biphenyls, radon,
or toxic mold; and any other substance the exposure to which would reasonably be
expected, because of hazardous or toxic qualities, to result in liability under
applicable Environmental Laws.
"Person" means an individual, corporation, partnership, limited
partnership, limited liability company, syndicate, Person (including a "person"
as defined in Section 13(d)(3) of the Exchange Act), trust, association or
entity or government, political subdivision, agency or instrumentality of a
government.
"subsidiary" or "subsidiaries" of the Company, the Surviving Corporation,
Parent, Merger Co or any other Person means an Affiliate controlled by such
Person, directly or indirectly, through one or more intermediaries, and, without
limiting the foregoing, includes any entity in respect of which such Person,
directly or indirectly, beneficially owns 50% or more of the voting securities
or equity.
"Tax" or "Taxes" means any and all federal, state, local and foreign
income, gross receipts, payroll, employment, excise, stamp, customs duties,
capital stock, franchise, profits, withholding, social security, unemployment,
real property, personal property, sales, use, transfer, value added, alternative
or add-on minimum, estimated, or other taxes (together with interest, penalties
and additions to tax imposed with respect thereto) imposed by any Governmental
Authority.
"Tax Returns" means returns, declarations, claims for refund, or
information returns or statements, reports and forms relating to Taxes filed or
required to be filed with any Governmental Authority (including any schedule or
attachment thereto) with respect to the Company or the Subsidiaries, including
any amendment thereof.
(b) The following terms have the meaning set forth in the Sections
set forth below:
Defined Term Location of Definition
------------ ----------------------
Acquisition Proposal ss. 6.04
Action ss. 3.10
Affiliate ss. 9.03
Agreement Preamble
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Defined Term Location of Definition
------------ ----------------------
Annual Maintenance Agreement ss. 3.17
beneficial owner ss. 9.03
business day ss. 9.03
Capitalization Date ss. 3.03
Certificate of Merger ss. 1.03
Certificates ss. 2.02
Change in Board Recommendation ss. 6.04
Closing ss. 1.02
Closing Date ss. 1.02
Code ss. 3.11
Commitment Letter ss. 4.07
Company Preamble
Company Board Recitals
Company Common Stock ss. 2.01
Company Disclosure Schedule ss. 2.04
Company Material Adverse Effect ss. 9.03
Company Permits ss. 3.06
Company Preferred Stock ss. 3.03
Company Stock Option Plans ss. 2.04
Company Stock Options ss. 2.04
Company Stock Plans ss. 3.03
Company Stockholders' Meeting ss. 6.02
Company Warrants ss. 2.04
Company's knowledge ss. 9.03
Computer Software ss. 3.14
Confidentiality Agreement ss. 6.03
Contract ss. 3.05
Contribution Agreement Recitals
Control ss. 9.03
Debt Financing ss. 4.07
DGCL ss. 1.01
Dissenting Shares ss. 2.05
Effective Time ss. 1.03
Employee ss. 6.06
Environmental Laws ss. 9.03
Equity Funding Letter ss. 4.07
ERISA ss. 3.11
ERISA Affiliate ss. 3.11
ESPP ss. 3.03
Exchange Act ss. 3.05
Exchange Fund ss. 2.02
Expenses ss. 8.03
Expiration Date ss. 8.01
Financing ss. 4.07
Foreign Benefit Plan ss. 3.11
48
Defined Term Location of Definition
------------ ----------------------
GAAP ss. 3.07
Governmental Authority ss. 3.05
Guarantee ss. 4.08
Guarantor ss. 4.08
HSR Act ss. 3.05
ICA ss. 3.05
Indebtedness ss. 9.03
Indemnified Parties ss. 6.05
Independent Committee ss. 3.19
Infringe ss. 3.14
Intellectual Property ss. 3.14
Investments ss. 3.03
IRS ss. 3.11
knowledge of the Company ss. 9.03
Law ss. 3.05
Leased Properties ss. 3.13
Leases ss. 3.13
Liens ss. 9.03
Material Subsidiary ss. 3.01
Materials of Environmental Concern ss. 9.03
Merger Recitals
Merger Co Preamble
Merger Consideration ss. 2.01
Multiemployer Plan ss. 3.11
Multiple Employer Plan ss. 3.11
Other Transactions ss. 3.04
Other Filings ss. 6.01
Owned Intellectual Property ss. 3.14
Owned Software ss. 3.14
Parent Preamble
Parent Termination Fee ss. 8.03
Paying Agent ss. 2.02
Person ss. 9.03
Permitted Liens ss. 3.13
Plans ss. 3.11
Principal Stockholder Recitals
Proxy Statement ss. 3.05
Purchaser Welfare Benefit Plans ss. 6.06
Representatives ss. 6.03
Xxxxxxxx-Xxxxx Act ss. 3.06
Schedule 13E-3 ss. 3.05
Scheduled Intellectual Property ss. 3.14
SEC ss. 3.05
SEC Reports ss. 3.07
Section 203 ss. 3.19
49
Defined Term Location of Definition
------------ ----------------------
Section 262 ss. 2.02
Securities Act ss. 3.07
Shares ss. 2.01
Specified Contract ss. 3.17
Stockholder Approval ss. 3.19
subsidiary ss. 9.03
Subsidiary ss. 3.01
Superior Proposal ss. 6.04
Surviving Corporation ss. 1.01
Tax or Taxes ss. 9.03
Tax Returns ss. 9.03
Termination Date ss. 8.01
Third Party Licenses ss. 3.14
Voting Agreement Recitals
(c) When a reference is made in this Agreement to Sections,
Schedules or Exhibits, such reference shall be to a Section, Schedule or Exhibit
of this Agreement, respectively, unless otherwise indicated. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not any particular provision of
this Agreement. The term "or" is not exclusive. The definitions contained in
this Agreement are applicable to the singular as well as the plural forms of
such terms. References to a Person are also to its permitted successors and
assigns. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.
SECTION 9.04 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
SECTION 9.05 Entire Agreement; Assignment. This Agreement, the Guarantee,
the Voting Agreement, the Contribution Agreement and the Confidentiality
Agreement constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, among the parties hereto, or any of them,
with respect to the subject matter hereof and thereof. This Agreement shall not
be assigned (whether pursuant to a merger, by operation of law or otherwise),
except that Parent or Merger Co may assign all or any of their rights and
obligations hereunder to an Affiliate, to a lender or financial institution as
collateral for indebtedness or, after the Closing, in connection with a merger,
consolidation or sale of all or substantially all of the assets of Parent or the
Surviving Corporation and its Subsidiaries provided, however, that no
50
such assignment shall relieve the assigning party of its obligations hereunder
if such assignee does not perform such obligations.
SECTION 9.06 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, other than Section 6.05 (which is intended to be for the benefit of
the Persons covered thereby and may be enforced by such Persons).
SECTION 9.07 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without giving
effect to the choice of law principles therein).
SECTION 9.08 Specific Performance; Submission to Jurisdiction. (a) The
Company agrees that to the extent it has incurred losses or damages in
connection with this Agreement, (i) the maximum aggregate liability of Parent
and Merger Co for such losses or damages shall be limited to $30,000,000, (ii)
the maximum liability of the Guarantor, directly or indirectly, shall be limited
to the express obligations of the Guarantor under the Guarantee, and (iii) in no
event shall the Company seek to recover any money damages in excess of such
amount from Parent, Merger Co or the Guarantor or any their respective
stockholders, partners, members, affiliates, directors, officers or agents in
connection therewith. (b) 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 Court of Chancery or other courts
of the State of Delaware, this being in addition to any other remedy to which
such party is entitled at law or in equity, subject to the limitations in
paragraph (a) of this Section 9.08. In addition, each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of the Court of Chancery
or other courts of the State of Delaware in the event any dispute arises out of
this Agreement or any of the transactions contemplated by this Agreement, (ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from such court, (iii) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than the Court of Chancery or
other courts of the State of Delaware and (iv) to the fullest extent permitted
by Law, consents to service being made through the notice procedures set forth
in Section 9.02. Each party hereto hereby agrees that, to the fullest extent
permitted by Law, service of any process, summons, notice or document by U.S.
registered mail to the respective addresses set forth in Section 9.02 shall be
effective service of process for any suit or proceeding in connection with this
Agreement or the transactions contemplated hereby.
SECTION 9.09 Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable Law any right it may have
to a trial by jury with respect to any litigation directly or indirectly arising
out of, under or in connection with this Agreement or the Merger. Each of the
parties hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce that foregoing waiver and (b)
acknowledges that it and the
51
other parties hereto have been induced to enter into this Agreement and the
Merger, as applicable, by, among other things, the mutual waivers and
certifications in this Section 9.9.
SECTION 9.10 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 9.11 Counterparts. This Agreement may be executed and delivered
(including by facsimile or other electronic transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
52
IN WITNESS WHEREOF, Parent, Merger Co and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
SUNSHINE ACQUISITION CORPORATION
By /s/ Xxxxxxxx X. Xxxxx XX
--------------------------------
Name: Xxxxxxxx X. Xxxxx XX
Title: President
SUNSHINE MERGER CORPORATION
By /s/ Xxxxxxxx X. Xxxxx XX
--------------------------------
Name: Xxxxxxxx X. Xxxxx XX
Title: President
SS&C TECHNOLOGIES, INC.
By /s/ Xxxxxxx X.Xxxxxxx
--------------------------------
Name: Xxxxxxx X.Xxxxxxx
Title: Senior Vice President
and Chief Financial Officer
53