AGREEMENT AND PLAN OF MERGER among NuCO2 ACQUISITION CORP., NuCO2 MERGER CO. and NuCO2 INC. Dated as of January 29, 2008
Exhibit
2.1
EXECUTION
VERSION
among
NuCO2
ACQUISITION CORP.,
NuCO2
MERGER CO.
and
NuCO2
INC.
Dated
as
of January 29, 2008
|
SECTION
1.01
|
||
|
SECTION
2.01
|
||
|
SECTION
2.02
|
||
|
SECTION
2.03
|
||
|
SECTION
2.04
|
||
|
SECTION
2.05
|
||
|
SECTION
2.06
|
||
|
SECTION
3.01
|
||
|
SECTION
3.02
|
||
|
SECTION
3.03
|
||
|
SECTION
3.04
|
||
|
SECTION
3.05
|
||
|
SECTION
4.01
|
||
|
SECTION
4.02
|
||
|
SECTION
4.03
|
||
|
SECTION
4.04
|
||
|
SECTION
4.05
|
||
|
SECTION
4.06
|
||
|
SECTION
4.07
|
||
|
SECTION
4.08
|
||
|
SECTION
4.09
|
||
|
SECTION
4.10
|
||
|
SECTION
4.11
|
||
|
SECTION
4.12
|
||
|
SECTION
4.13
|
||
|
SECTION
4.14
|
||
|
SECTION
4.15
|
||
|
SECTION
4.16
|
||
|
SECTION
4.17
|
||
|
SECTION
4.18
|
||
|
SECTION
4.19
|
||
|
SECTION
4.20
|
||
|
SECTION
4.21
|
||
|
SECTION
4.22
|
||
|
SECTION
4.23
|
||
|
SECTION
4.24
|
||
|
SECTION
4.25
|
||
|
SECTION
4.26
|
|
SECTION
5.01
|
||
|
SECTION
5.02
|
||
|
SECTION
5.03
|
||
|
SECTION
5.04
|
||
|
SECTION
5.05
|
||
|
SECTION
5.06
|
||
|
SECTION
5.07
|
||
|
SECTION
5.08
|
||
|
SECTION
5.09
|
||
|
SECTION
5.10
|
||
|
SECTION
5.11
|
||
|
SECTION
6.01
|
||
|
SECTION
7.01
|
||
|
SECTION
7.02
|
||
|
SECTION
7.03
|
||
|
SECTION
7.04
|
||
|
SECTION
7.05
|
||
|
SECTION
7.06
|
||
|
SECTION
7.07
|
||
|
SECTION
7.08
|
||
|
SECTION
7.09
|
||
|
SECTION
7.10
|
||
|
SECTION
8.01
|
||
|
SECTION
8.02
|
||
|
SECTION
8.03
|
||
|
SECTION
9.01
|
||
|
SECTION
9.02
|
||
|
SECTION
9.03
|
||
|
SECTION
9.04
|
||
|
SECTION
9.05
|
||
|
SECTION
10.01
|
||
|
SECTION
10.02
|
||
|
SECTION
10.03
|
||
|
SECTION
10.04
|
||
|
SECTION
10.05
|
||
|
SECTION
10.06
|
||
|
SECTION
10.07
|
||
|
SECTION
10.08
|
||
|
SECTION
10.09
|
||
|
SECTION
10.10
|
AGREEMENT
AND PLAN OF MERGER, dated as of January 29, 2008 (this “Agreement”), among
NuCO2 ACQUISITION CORP., a Delaware corporation (“Parent”), NuCO2
MERGER CO., a Florida corporation and a wholly owned subsidiary of Parent
(“Merger Sub”),
and NuCO2 INC., a Florida corporation (the “Company”).
WHEREAS,
the Boards of Directors of Parent, Merger Sub and the Company have each
determined that it is in the best interests of their respective stockholders
to
consummate the merger (the “Merger”), upon the
terms and subject to the conditions of this Agreement, of Merger Sub with and
into the Company in accordance with the Florida Business Corporation Act (the
“FBCA”) 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
“Board”), have
recommended that this Agreement be adopted by the Company’s
stockholders);
WHEREAS,
concurrently with the execution of this Agreement, and as a condition to the
willingness of the Company to enter into this Agreement, each of Aurora Equity
Partners III L.P. and Aurora Overseas Equity Partners III, L.P. (each, a “Guarantor” and,
collectively, the “Guarantors”) is
entering into a guarantee (each, a “Guarantee” and,
collectively, the “Guarantees”) with the
Company pursuant to which, among other things, each such Guarantor has
unconditionally agreed to (i) guarantee, on a several, and not joint, basis
as
set forth in the Guarantees, all of the obligations of Parent and Merger Sub
under this Agreement and (ii) take certain other actions in furtherance of
the
transactions contemplated by this Agreement;
WHEREAS,
simultaneously with the execution and delivery of this Agreement, Parent and
certain stockholders of the Company are entering into an agreement pursuant
to
which such stockholders will agree to take specified actions in furtherance
of
the transactions contemplated by this Agreement; and
WHEREAS,
upon consummation of the Merger, each issued and outstanding share of common
stock, par value $0.001 per share, of the Company (the “Company Common
Stock”), will be converted into the right to receive $30.00 per share in
cash, upon the terms and subject to the conditions set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Parent, Merger Sub
and
the Company hereby agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01 Definitions. For
purposes of this Agreement:
“Acceptable
Confidentiality
Agreement” means a confidentiality agreement that contains provisions
that are no less favorable in any material respects to the Company than those
contained in the Confidentiality Agreement.
“Acquisition
Proposal”
means any inquiry, offer or proposal (other than from Parent or Merger
Sub or
their respective Affiliates) concerning any (A) merger, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company, (B) direct or indirect sale, lease,
pledge or other disposition of assets or business of the Company representing
20% or more of the revenues, net income or assets of the Company, in a single
transaction or a series of related transactions, (C) issuance, sale or
other disposition by the Company to any person or group (other than Parent
or
Merger Sub or any of their respective Affiliates) of securities (or options,
rights or warrants to purchase, or securities convertible into or exchangeable
for, such securities) representing 20% or more of the voting power of the
Company, or (D) transaction or series of related transactions in which any
person or group (other than Parent or Merger Sub or their respective Affiliates)
acquires beneficial ownership, or the right to acquire beneficial ownership,
of
20% or more of the outstanding Equity Interests of the Company.
“Action”
means
any
action, arbitration, audit, hearing, litigation, suit or other proceeding
(whether civil, criminal, administrative, private or governmental).
“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” 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 New York
City.
“Code”
means
the
Internal Revenue Code of 1986, as amended.
“Company
Reference Balance
Sheet” means the audited balance sheet of the Company as of June 30, 2007
contained in its Form 10-K, filed with the SEC on September 13,
2007.
“contract”
means
any
agreement, contract, lease, mortgage, power of attorney, evidence of
indebtedness, letter of credit, license, instrument, obligation, purchase or
sales order, or other commitment, whether oral or written, that is legally
binding.
“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.
“Effective
Time” means
the date and time at which the Merger becomes effective.
“Encumbrance”
means
any charge, claim, community property interest, condition, easement, covenant,
warrant, demand, encumbrance, equitable interest, lien, mortgage, option,
purchase right, pledge, security interest, right of first refusal or other
right
of third parties or restriction of any kind, including any restriction on use,
voting, transfer, receipt of income or exercise of any other attribute of
ownership.
“Environmental
Laws”
means Laws relating to, or establishing standards of conduct for, human
health
and safety, worker health and safety, Hazardous Substances, or injury to or
pollution or protection of the environment or natural resources, including
air,
land, soil, surface waters, ground waters, stream and river sediments and/or
biota.
“Equity
Interest”
means (A) with respect to a corporation, any and all classes or series of
shares of capital stock, (B) with respect to a partnership, limited
liability company, trust or similar person, any and all classes or series of
units, interests or other partnership/limited liability company interests and
(C) with respect to any other person, any other security representing any
direct equity ownership or participation in such person.
“Governmental
Authority” means any United States or foreign federal, national, state,
provincial, supranational, county or local government, governmental, regulatory
or administrative authority, agency, self-regulatory body, instrumentality
or
commission, and any court, tribunal, or judicial or arbitral body (including
private bodies) and/or any political or other subdivision, department or branch
of any of the foregoing.
“Hazardous
Substances”
means any chemicals, materials or substances, including without limitation,
any
petroleum, petroleum products, petroleum-derived substances, radioactive
materials, hazardous wastes, polychlorinated biphenyls, lead-based paint, radon,
urea formaldehyde, asbestos or any materials containing asbestos, pesticides
regulated under Environmental Laws or defined as or included in the definition
of “hazardous substances,” “hazardous wastes,” “extremely hazardous substances,”
“hazardous materials,” “hazardous constituents,” “toxic substances,”
“pollutants,” “contaminants,” or any similar denomination intended to classify
or regulate such chemicals, materials or substances by reason of their toxicity,
carcinogenicity, ignitability, corrosivity or reactivity or other
characteristics under any Environmental Law.
“HSR
Act” means the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, or any
successor law, and regulations and rules issued pursuant to that Act or any
successor law.
“Indebtedness”
means
(A) any indebtedness for borrowed money or evidenced by bonds, notes, debentures
or other similar instruments or letters of credit, whether or not contingent,
(B) any obligations under conditional or installment sale contracts or other
retention contracts relating to purchased property, (C) any capital lease
obligations, (D) any guarantee of any such indebtedness of any other person,
(E)
any indebtedness of others secured by a lien on any asset of the Company
(whether or not such indebtedness is assumed by the Company), or (F) any
arrangement having the economic effect of any of the foregoing.
“Intellectual
Property” means (A) United States, international, and foreign
patents and patent applications, including divisionals, continuations,
continuations-in-part, reissues, reexaminations, and extensions thereof and
counterparts claiming priority therefrom; utility models; invention disclosures;
and statutory invention registrations and certificates; (B) United
States and foreign registered, pending, and unregistered trademarks,
service marks, trade dress, logos, trade names, corporate names and other
source
identifiers, domain names, Internet sites and web pages; and registrations
and
applications for registration for any of the foregoing, together with all
of the
goodwill associated therewith; (C) United States and foreign copyrights,
and registrations and applications for registration thereof; rights of
publicity; and copyrightable works; (D) all inventions and design rights
(whether patentable or unpatentable) and all categories of trade secrets
as
defined in the Uniform Trade Secrets Act, including business, technical and
financial information; and (E) confidential and proprietary information,
including know-how.
“knowledge”
means
the
actual knowledge of one or more of the executive officers of the Company after
reasonable investigation, consistent with such officer’s title and
responsibilities.
“Laws”
means
any
foreign, federal, state or local statute, law, rule, ordinance, code or
regulation, any Order, and any regulation, rule, interpretation, guidance or
directive of any Governmental Authority.
“liability”
means
any
liability of any kind whatsoever (whether known or unknown, asserted or
unasserted, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, due or to become due, and whether or not reflected or required
by
GAAP to be reflected on the Company Reference Balance Sheet).
“Material
Adverse
Effect” means any change, event, occurrence, development or effect (any
such item, an “Effect”),
individually or when taken together with all other Effects, that is, or could
reasonably be expected to be, materially adverse to the business, results of
operations, condition (financial or otherwise), assets or liabilities of the
Company.
“Occupational
Safety and
Health Law” means any Law of any Governmental Authority enacted or
promulgated which requires or relates to Occupational Safety and Health
Matters.
“Occupational
Safety and
Health Liabilities” means any cost, damage, expense, liability,
obligation, duty to indemnify, defend or reimburse, or other responsibility
consisting of or relating to (A) fines, penalties, judgments, awards,
settlements, legal or administrative proceedings, damages, losses, claims,
remedial costs and expenses arising under any Occupational Safety and Health
Law, (B) financial responsibility for corrective action, including, without
limitation, any investigation, or abatement action (including, without
limitation, with respect to engineering or administrative controls), or the
use
of required personal protective equipment, required by any applicable
Occupational Safety and Health Law, or by any final decision, injunction, order,
judgment, ruling or decree of any applicable Occupational Safety and Health
jurisdiction, or (C) any other compliance, corrective or remedial measures
required under Occupational Safety and Health Law.
“Occupational
Safety and
Health Matters” means all matters related to health and safety of
employees, temporary employees, independent contractors or employees of
independent contractors at any Property.
“Order”
means
any
award, writ, stipulation, injunction, judgment, order, decree, ruling, subpoena
or verdict entered, issued, made or rendered by, or any contract with, any
Governmental Authority.
“ordinary
course of
business” means the ordinary course of business of the Company consistent
with past practice.
“Permits”
means
all
Orders and all franchises, grants, authorizations, licenses, permits, consents,
certificates and approvals of any Governmental Authority.
“Permitted
Encumbrances” means:
(i) statutory
liens for Taxes, assessments and governmental charges or levies imposed upon
the
Company not yet due and payable or that are being contested in good faith by
appropriate proceedings and for which the Company has made adequate accruals
in
the Company Financials (as defined below) in accordance with GAAP,
(ii) mechanics’,
materialmen’s or similar statutory liens for amounts not yet due or being
diligently contested in good faith in appropriate proceedings and for which
the
Company has made adequate accruals in the Company Financials in accordance
with
GAAP,
(iii) pledges
or deposits to secure obligations under workers’ compensation laws or similar
legislation or to secure public or statutory obligations and for which the
Company has made adequate accruals in the Company Financials in accordance
with
GAAP,
(iv) zoning,
entitlement and other land use regulations by Governmental
Authorities,
(v) easements,
survey exceptions, leases, subleases and other occupancy contracts, reciprocal
easements, restrictions and other customary encumbrances on title to real
property that do not, in any such case, materially interfere with the actual
use
of such real property,
(vi) encumbrances
affecting the interest of the lessor of any Real Property, and
(vii) liens
relating to any indebtedness for borrowed money identified on Section 1.01 of the
Company Disclosure Letter.
“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, Governmental
Authority or other entity.
“Property”
means
any
real property currently or formerly owned, leased, operated or managed by the
Company or any of its former subsidiaries.
“Shares”
means
the
shares of Company Common Stock outstanding immediately prior to the Effective
Time.
“subsidiary”
means
any
person with respect to which a specified person directly or indirectly
(A) owns a majority of the Equity Interests, (B) has the power to
elect a majority of that person’s board of directors or similar governing body,
or (C) otherwise has the power, directly or indirectly, to direct the
business and policies of that person.
“Superior
Proposal”
means any written Acquisition Proposal that the Board determines in
its good
faith judgment (after consultation with its outside legal and financial
advisors) is more favorable to the Company’s stockholders (in their capacity as
such), taking into account all relevant legal, financial, regulatory and other
aspects of the proposal and the person making the proposal, than this Agreement
(considering any changes to this Agreement agreed in writing by Parent in
response thereto) and which the Board determines in good faith is reasonably
likely to be consummated; provided that for
purposes of the definition of “Superior Proposal”,
the references to “20% or more” in the definition of Acquisition Proposal shall
be deemed to be references to “50%.”
“Taxes”
means
any and
all taxes, fees, levies, duties, tariffs, imposts and other charges of any
kind
(together with any and all interest, penalties, additions to tax and additional
amounts imposed with respect thereto) imposed by any Governmental Authority
or
other taxing authority, including: taxes or other charges on or with
respect to income, franchise, windfall or other profits, gross receipts,
property, sales, use, Equity Interests, payroll, employment, social security,
workers’ compensation, unemployment compensation or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer,
value-added or gains taxes; license, registration and documentation fees; and
customers’ duties, tariffs and similar charges.
The
following terms have the respective meanings set forth in the Sections set
forth
below:
|
Defined
Term
|
Location
of
Definition
|
|
Agreement
|
Preamble
|
|
Appraisal
Statute
|
§ 3.05
|
|
Articles
of Merger
|
§ 2.03
|
|
Award
Payment
|
§ 3.04(b)
|
|
Board
|
Recitals
|
|
Certificates
|
§ 3.02(b)
|
|
Closing
|
§ 2.02
|
|
COBRA
|
§ 4.10(e)
|
|
Company
|
Preamble
|
|
Company
Board Approval
|
§ 4.04(b)
|
|
Company
Common Stock
|
Recitals
|
|
Company
Disclosure Letter
|
§ 4.01(a)
|
|
Company
Financials
|
§ 4.07(b)
|
|
Company
Intellectual Property
|
§ 4.15
|
|
Company
Preferred Stock
|
§ 4.03(a)
|
|
Company
Stock Award
|
§ 3.04(a)
|
|
Company
Stock Award Plans
|
§ 3.04(a)
|
|
Confidentiality
Agreement
|
§ 7.02(b)
|
|
Contributed
Assets
|
§ 7.10(b)
|
|
Contribution
|
§ 7.10(b)
|
|
D&O
Insurance
|
§ 7.04(b)
|
|
Debt
Financing
|
§ 5.07
|
|
Debt
Financing Commitment
|
§ 5.07
|
|
Debt
Term Sheet
|
§ 4.04(a)
|
|
Dissenting
Shares
|
§ 3.05
|
|
DOJ
|
§ 7.05(a)
|
|
Effect
|
§ 1.01
|
|
Employees
|
§ 4.11(b)
|
|
Employment
Laws
|
§ 4.11(b)
|
|
Environmental
Permits
|
§ 4.06(a)
|
|
Equity
Financing
|
§ 5.07
|
|
Equity
Financing Commitment
|
§ 5.07
|
|
ERISA
|
§ 4.10(a)
|
|
ERISA
Affiliate
|
§ 4.10(a)
|
|
Exchange
Act
|
§ 4.05(b)
|
|
Excluded
Party
|
§
7.03(b)
|
|
Expense
Reimbursement Amount
|
§ 9.02
|
|
FBCA
|
Recitals
|
|
Financing
|
§ 5.07
|
|
Financing
Commitments
|
§ 5.07
|
|
Financing
Subsidiaries
|
§ 7.10(b)
|
|
FTC
|
§ 7.05(a)
|
|
GAAP
|
§
4.07(b)
|
|
Go-Shop
Period End Date
|
§
7.03(a)
|
|
Indemnified
Parties
|
§ 7.04(a)
|
|
IRS
|
§ 4.10(a)
|
|
Licensed
Intellectual Property
|
§ 4.15
|
|
Merger
|
Recitals
|
|
Merger
Consideration
|
§ 3.01(a)
|
|
Merger
Sub
|
Preamble
|
|
NASDAQ
|
§ 4.05(b)
|
|
Notice
Period
|
§
7.03(d)
|
|
Outside
Date
|
§ 9.01(b)
|
|
Parent
|
Preamble
|
|
Paying
Agent
|
§ 3.02(a)
|
|
Payment
Fund
|
§ 3.02(a)
|
|
Parent
Welfare Benefit Plans
|
§ 7.08(c)
|
|
Plans
|
§ 4.10(a)
|
|
Proxy
Statement
|
§
7.01(b)
|
|
Real
Property
|
§
4.13(a)
|
|
Representatives
|
§ 7.02(a)
|
|
Requisite
Stockholder Vote
|
§ 4.04(a)
|
|
Required
Payments
|
§ 5.07
|
|
Reverse
Termination Fee
|
§ 9.03(c)
|
|
Rights
|
§
4.03(b)
|
|
Rights
Agreement
|
§
4.19
|
|
Xxxxxxxx-Xxxxx
Act
|
§ 4.07(a)
|
|
SEC
|
§ 4.05(b)
|
|
SEC
Reports
|
§ 4.07(a)
|
|
Securities
Act
|
§ 4.07(a)
|
|
Solicited
Person
|
§
7.03(a)
|
|
Solvent
|
§
5.09
|
|
Special
Meeting
|
§
7.01(a)
|
|
Surviving
Corporation
|
§ 2.01
|
|
Swap
Option
|
§ 7.10(c)
|
|
Takeover
Law
|
§ 4.04(c)
|
|
Tax
Returns
|
§
4.16(a)
|
|
Tenant
Leases
|
§
4.13(a)
|
|
Terminating
Company Breach
|
§
9.01(e)
|
|
Terminating
Parent Breach
|
§
9.01(f)
|
|
Termination
Date
|
§ 9.01
|
|
Termination
Fee
|
§ 9.03(b)
|
|
Transaction
Costs
|
§ 9.03(a)
|
|
Transactions
|
§ 4.04(a)
|
|
Voting
Debt
|
§ 4.03(d)
|
ARTICLE
II
THE
MERGER
SECTION
2.01 The
Merger. Upon the terms of this Agreement and subject to the
satisfaction or, if permissible, waiver of the conditions set forth in Article VIII,
and in accordance with the FBCA, at the Effective Time, (A) Merger Sub
shall be merged with and into the Company, (B) the separate corporate
existence of Merger Sub shall cease and (C) the Company shall continue as
the surviving corporation of the Merger (the “Surviving
Corporation”).
SECTION
2.02 Closing. Unless
this Agreement shall have been terminated in accordance with Section 9.01,
and subject to the satisfaction or waiver of the conditions set forth in Article VIII,
the closing of the Merger (the “Closing”) will take
place at 10:00 a.m., New York City time, on a date to be specified by the
parties, which shall be not later than the second business day after the
satisfaction or, if permissible, waiver of the conditions set forth in Article VIII
(other than those that by their terms are to be satisfied or waived at the
Closing), at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, XX, 00000, unless another time, date or place is agreed to in writing
by Parent and the Company; provided, however,
that the
Closing shall not occur until the condition set forth in clause (vi) under
the
heading “Conditions” in the Debt Financing Commitment shall have been satisfied
or waived.
SECTION
2.03 Effective
Time. At the Closing, the parties hereto shall cause the
Merger to be consummated by filing articles of merger (the “Articles of Merger”)
with the Secretary of State of the State of Florida in such form as is required
by, and executed and acknowledged in accordance with, the relevant provisions
of
the FBCA and shall make all other filings or recordings required under the
FBCA
in connection with the Merger. The Merger shall become effective at
such date and time as the Articles of Merger are duly filed with the Secretary
of State of the State of Florida or at such subsequent date and time as Parent
and the Company shall agree and specify in the Articles of Merger.
SECTION
2.04 Effect
of the
Merger. At the Effective Time, the effect of the Merger shall
be as provided in Section 607.1106 and the other applicable provisions of
the FBCA. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the property, rights, privileges,
powers and franchises of the Company and Merger Sub shall vest in the Surviving
Corporation, and all debts, liabilities, obligations, restrictions, disabilities
and duties of the Company and Merger Sub shall become the debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving
Corporation.
SECTION
2.05 Articles
of Incorporation;
Bylaws. At the Effective Time,
(a) the
Articles of Incorporation of the Company, as in effect immediately prior to
the
Effective Time, shall be amended and restated to be in the form of Exhibit A (which
shall be amended to comply with Section 7.04(c) and
may be otherwise amended from time to time by Parent) and as so amended and
restated, shall be the articles of incorporation of the Surviving Corporation
until thereafter amended in accordance with the provisions thereof and as
provided by applicable Law; and
(b) the
bylaws of Merger Sub, as in effect immediately prior to the Effective Time,
shall be the bylaws of the Surviving Corporation until thereafter amended in
accordance with applicable Law, the Articles of Incorporation of the Surviving
Corporation and such bylaws.
SECTION
2.06 Directors
and
Officers. The directors of Merger Sub immediately prior to the
Effective Time shall be the initial directors of the Surviving Corporation,
each
to hold office in accordance with the Articles of Incorporation and bylaws
of
the Surviving Corporation, and the individuals listed on Section 2.06 of
the Company Disclosure Letter (as defined below) shall be the initial officers
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
III
CONVERSION
OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION
3.01 Conversion
of
Securities. At the Effective Time, by virtue of the Merger and
without any action on the part of Merger Sub, the Company or the holders of
any
of the following securities:
(a) Conversion
of Company Common
Stock. Each Share (other than any Shares to be canceled
pursuant to Section 3.01(b)
and any Dissenting Shares) shall be canceled and converted automatically into
the right to receive $30.00 in cash (the “Merger
Consideration”) payable, without interest, to the holder of such Share,
upon surrender, in the manner provided in Section 3.02, of
the Certificate that formerly evidenced such Share.
(b) Cancellation
of Treasury
Stock and Parent-Owned Stock. Each Share held in the treasury
of the Company and each Share owned by Merger Sub, Parent or any direct or
indirect wholly owned subsidiary of Parent shall automatically be canceled
without any conversion thereof and no payment or distribution shall be made
with
respect thereto.
(c) Equity
Interests of Merger
Sub. Each share of common stock of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be converted into
and
exchanged for one validly issued, fully paid and nonassessable share of common
stock of the Surviving Corporation.
SECTION
3.02 Surrender
of
Certificates.
(a) 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 III. At
the Effective Time, Parent shall deposit, or cause the Surviving Corporation
to
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 3.01(a)
(the “Payment
Fund”). Except as contemplated by Section 3.02(d),
the
Payment Fund shall not be used for any other purpose. The Payment
Fund shall be invested by the Paying Agent as directed by Parent; provided, 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 deposit accounts, certificates of
deposit or banker’s acceptances of, repurchase or reverse repurchase contracts
with, or Eurodollar time deposits purchased from, commercial banks with capital,
surplus and undivided profits aggregating in excess of $1 billion (based on
the most recent financial statements of such bank which are then publicly
available).
(b) Payment
Procedures. Promptly after the Effective Time, Parent shall
cause the Paying Agent to mail to each person who was, at the Effective Time,
a
holder of record of Shares entitled to receive the Merger Consideration pursuant
to Section 3.01(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 therefor the Merger Consideration for each
Share
formerly evidenced by such Certificate, and such Certificate shall then be
canceled. 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 have paid all transfer and other
Taxes required by reason of the payment of the Merger Consideration to a person
other than the registered holder of such Certificate or established to the
reasonable satisfaction of the Surviving Corporation that such Taxes either
have
been paid or are not applicable. Until surrendered as contemplated by
this Section 3.02,
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 III. No
interest shall be paid or will accrue on any cash payable to holders of
Certificates pursuant to the provisions of this Article III.
(c) No
Further
Rights. From and after the Effective Time, holders of
Certificates shall cease to have any rights as stockholders of the Company,
except as provided in this Agreement or by applicable Law.
(d) Termination
of Payment
Fund. Any portion of the Payment Fund that remains
undistributed to the holders of Shares one year after the Effective Time shall
be delivered to Parent, upon demand, and any holders of Shares who have not
theretofore complied with this Article III
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. Any portion of the Payment Fund remaining unclaimed by
holders of Shares as of a date that is immediately prior to such time as such
amounts would otherwise escheat to or become property of any Governmental
Authority shall, to the extent permitted by applicable Law, become the property
of the Surviving Corporation free and clear of any claims or other Encumbrance
of any person previously entitled thereto.
(e) No
Liability. None of the Paying Agent, Merger Sub, Parent or the
Surviving Corporation shall be liable to any holder of Shares or any other
person for any such Shares (or dividends or distributions with respect thereto)
or cash or other consideration delivered to a public official pursuant to any
abandoned property, escheat or other Law.
(f) Withholding
Rights. Each of the Paying Agent, the Surviving Corporation
and Parent shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement such amounts as it is required
to
deduct and withhold with respect to such payment under all applicable
Laws. To the extent that amounts are so withheld by the Paying Agent,
the Surviving Corporation or Parent, 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.
(g) 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 3.01(a).
SECTION
3.03 Stock
Transfer
Books. At the Effective Time, the stock transfer books of the
Company shall be closed and thereafter there shall be no further registration
of
transfers of Shares on the records of the Company. From and after the
Effective Time, the holders of Shares or Certificates shall cease to have any
rights with respect to such Shares, or in the case of Certificates, the Shares
evidenced thereby, except as otherwise provided in this Agreement or by
applicable Law. On or after the Effective Time, any Certificates
presented to the Paying Agent, the Surviving Corporation or Parent for any
reason shall be canceled against delivery of the Merger Consideration to which
the holders thereof are entitled pursuant to Section 3.01(a).
SECTION
3.04 Employee
Equity
Awards.
(a) Prior
to the Effective Time, the Company shall take all reasonably necessary action
(which action shall be effective as of the Effective Time) to:
(i) terminate
the Company’s 1995 Stock Option Plan, the Directors’ Stock Option Plan, the 2005
Executive Management Stock Option Plan, the 2005 Non-Employee Directors’ Stock
Option Plan, the 2005 Employee Stock Option Plan and any stock options granted
outside of a formal plan, in each case as amended through the date of this
Agreement (collectively, the “Company Stock Award
Plans”),
(ii) except
as otherwise provided by the terms of any Company Stock Award Plan, provide
that
each outstanding option to purchase shares of Company Common Stock (each, a
“Company Stock
Award”) granted under the Company Stock Award Plans shall become fully
vested, to the extent not already vested, subject to, and conditioned upon,
the
closing of the Merger, and
(iii) cause
any Company Stock Award that is not exchanged for cash as provided in Section 3.04(b) to be
cancelled as of the Effective Time, without the payment of any compensation
therefor.
(b) Each
holder of a Company Stock Award that is outstanding and unexercised as of the
Effective Time and has an exercise price per Share that is less than the Merger
Consideration shall (subject to the provisions of this Section 3.04) be
paid by the Surviving Corporation, in exchange for the cancellation of such
Company Stock Award, an amount in cash (subject to any applicable withholding
Taxes) equal to the product of (i) the difference between the Merger
Consideration and the applicable exercise price per share of such Company Stock
Award, and (ii) the aggregate number of shares of Company Common Stock
issuable upon exercise of such Company Stock Award (the “Award
Payment”). Except as otherwise expressly provided for in any
agreement between the Company and any such holder, the Surviving Corporation
or
the Paying Agent shall make the Award Payments promptly after the
Effective Time. Any such payments shall be subject to all applicable
federal, state and local Tax withholding requirements.
(c) The
Company shall, within a reasonable period of time after the date hereof, prepare
and deliver to Parent for its review drafts of such documentation relating
to or
arising from the termination of the Company Stock Award Plans, shall revise
such
documentation as Parent may reasonably request, and, no later than five days
prior to the Effective Time, shall deliver to Parent final and executed
documentation relating to or arising from the termination of the Company Stock
Award Plans, and shall take any other actions required to be taken pursuant
to
this Section
3.04.
(d) The
Company shall take all necessary action to approve the disposition of the
Company Stock Awards in connection with the transactions contemplated by this
Agreement to the extent necessary to exempt such dispositions under Rule 16b-3
of the Exchange Act.
SECTION
3.05 Dissenting
Shares. Notwithstanding any provision of this Agreement to the
contrary and to the extent available under the FBCA, Shares held by any
stockholder entitled to demand and who properly demands the appraisal for such
Shares (the “Dissenting Shares”)
pursuant to, and who complies in all respects with, the provisions of Section
607.1301, et seq., of
the FBCA (the “Appraisal Statute”)
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 the Appraisal Statute; provided, that,
all Dissenting
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 the Appraisal Statute 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 in the manner provided in Section 3.02 of
the Certificate or Certificates that formerly evidenced such
Shares. The Company shall give Parent prompt notice of any demands
received by the Company for appraisal of shares of Company Common Stock, and
Parent shall have the right to participate in and direct all negotiations and
proceedings with respect to such demands. The Company shall not
settle, make any payments with respect to, or offer to settle, any claim with
respect to Dissenting Shares without the prior written consent of
Parent.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
As
an
inducement to Parent and Merger Sub to enter into this Agreement, the Company
hereby represents and warrants to Parent and Merger Sub that, except as
otherwise disclosed in the SEC Reports filed prior to the date of this Agreement
(excluding any disclosures set forth in any “risk factor” section thereof or any
statements that constitute forward-looking statements in that such statements
are predictive or forward-looking in nature):
SECTION
4.01 Organization
and
Qualification; Subsidiaries.
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the Laws of the State of Florida and has the requisite power
and
authority to own, lease and operate its properties and to carry on its business
as it is now being conducted. The Company is duly qualified or
licensed to do business, and is in good standing, 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 for such
failures to be so qualified or licensed and in good standing that would not
be
reasonably expected to have a Material Adverse Effect. Each such
jurisdiction is listed in Section 4.01(a) of
the disclosure letter delivered by the Company to Parent on the date of the
execution of this Agreement (the “Company Disclosure
Letter”).
(b) The
Company does not have any subsidiaries as of the date hereof. Except
as set forth in Section 4.01(b)
of the Company Disclosure Letter, the Company does not directly or indirectly
own any Equity Interest in, or any interest convertible into or exchangeable
or
exercisable for any Equity Interests in, any person and, except as set forth
in
Section 4.01(b)
of the Company Disclosure Letter, has never had any direct or indirect
subsidiaries since inception. As of the Effective Time, each of the
Financing Subsidiaries (as defined below) shall be duly organized, validly
existing and in good standing under the Laws of its state of
formation.
SECTION
4.02 Articles
of Incorporation
and Bylaws. The Company has heretofore made available to
Parent a complete and correct copy of the articles of incorporation and the
bylaws, each as amended to date, of the Company. Such articles of
incorporation and bylaws are in full force and effect.
SECTION
4.03 Capitalization.
(a) The
authorized Equity Interests of the Company consist of 30,000,000 shares of
Company Common Stock and 5,000,000 shares of preferred stock, no par value
(“Company Preferred
Stock”). As of the date of this Agreement,
(i) 14,769,532
shares of Company Common Stock were issued and outstanding, all of which were
duly authorized, validly issued, fully paid and nonassessable, were issued
in
compliance with the Securities Act and were not issued (A) in violation of
any preemptive rights or (B) at a price per Share in excess of the Merger
Consideration,
(ii) no
shares of Company Common Stock were held in the treasury of the
Company,
(iii) 1,905,070
shares of Company Common Stock were issuable upon exercise of outstanding stock
options granted pursuant to the Company Stock Award Plans,
(iv) 2,848,570
shares of Company Common Stock were reserved for issuance under the Company
Stock Award Plans (including the shares referenced in clause (iii) above),
and
(v) no
shares of Company Preferred Stock were issued and outstanding.
(b) Except
as set forth in Section 4.03(a)
and for the rights issued under the Rights Agreement (as defined below), there
are no
(i) outstanding
Equity Interests in the Company or securities exercisable or exchangeable for
or
convertible into any Equity Interests of the Company.
(ii) outstanding
options, warrants, rights or contracts relating to the issued or unissued Equity
Interests of the Company or obligating the Company to issue or sell any Equity
Interests in the Company,
(iii) outstanding
stock appreciation rights, stock awards, restricted stock, restricted stock
awards, performance units, phantom stock, profit participation or similar rights
with respect to the Company or any of its Equity Interests (collectively, “Rights”) or
obligation of the Company to issue or sell any such Right, or
(iv) voting
trusts, proxies or other contracts with respect to the voting of any Equity
Interests of the Company or giving any person any preemptive rights with respect
to any future issuance of securities by the Company.
(c) All
shares of Company Common Stock subject to issuance under the Company Stock
Award
Plans, upon issuance on the terms and conditions specified in the instruments
pursuant to which they are issuable, will be duly authorized, validly issued,
fully paid and nonassessable and not subject to preemptive
rights. There are no outstanding contractual obligations of the
Company to repurchase, redeem or otherwise acquire any Equity Interests of
the
Company or to provide funds to, or make any investment (in the form of a loan,
capital contribution or otherwise) in, any person.
(d) The
Company does not have outstanding any bonds, debentures, notes or other similar
obligations the holders of which have the right to vote (or convertible into
or
exercisable or exchangeable for securities having the right to vote or other
Equity Interests of the Company) with the stockholders of the Company on any
matter (“Voting
Debt”).
(e) Section
4.03(e) of
the Company Disclosure Letter sets forth a true and complete list of each
current or former Employee, officer, director, consultant or other service
provider of the Company who holds a Company Stock Award under the Company Stock
Award Plans as of the date hereof, together with the number of shares of Company
Common Stock subject to such Company Stock Awards, the date of grant of such
Company Stock Awards, the exercise price of such Company Stock Awards, and
the
expiration date of such Company Stock Awards. All Company Stock
Awards have been issued in compliance with the Securities Act and, to the
Company’s knowledge, any applicable state blue sky laws. The Company
has provided to Parent true and complete copies of the Company Stock Award
Plans
and the forms of all stock option agreements evidencing the Company Stock
Awards. Except as set forth in Section 4.03(e) of
the Company Disclosure Letter, on and after the Effective Time, no Employee,
officer, director, consultant or other service provider of the Company shall
have any right under the Company Stock Award Plans to purchase Company Common
Stock, or any other Equity Interest in, the Company, Merger Sub, the Surviving
Corporation, Parent or any of their respective Affiliates or
subsidiaries.
SECTION
4.04 Power
and
Authority.
(a) The
Company has all necessary power and authority to (i) execute and deliver this
Agreement, (ii) perform its obligations hereunder, (iii) form the Financing
Subsidiaries, (iv) effect the Contribution (as defined below) and (v) perform
all other transactions contemplated by or necessary under this Agreement,
including, without limitation, any transactions contemplated by the Summary
of
Indicative Terms and Conditions attached as Annex I (the “Debt Term Sheet”) to
the Debt Financing Commitment (collectively, the “Transactions”). The
execution and delivery of this Agreement by the Company and the consummation
by
the Company of the Merger have been, and the consummation by the Company of
the
other Transactions will be, duly and validly authorized by all necessary
corporate action on the part of the Company, and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or to
consummate the Merger or the Contribution, as contemplated by the Debt Term
Sheet as of the date hereof (other than the adoption of this Agreement and
the
approval of the Transactions by the holders of a majority of the
then-outstanding shares of Company Common Stock (the “Requisite Stockholder
Vote”) and the filing and recordation of appropriate merger documents as
required by the FBCA). This Agreement has been duly executed and
delivered by the Company and, assuming the due authorization, execution and
delivery of this Agreement by Parent and Merger Sub, constitutes a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforceability thereof
may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors’ rights generally and by principles
of equity regarding the availability of remedies.
(b) The
Board, by resolutions duly adopted by unanimous vote at a meeting duly called
and held (the “Company
Board Approval”), has duly (i) determined that this Agreement and
the Merger are advisable and in the best interests of the Company and its
stockholders, (ii) approved this Agreement and the Merger and
(iii) recommended that the stockholders of the Company adopt this Agreement
and directed that this Agreement and the Merger be submitted for consideration
by the Company’s stockholders in accordance with this Agreement.
(c) No
“fair price,” “moratorium,” “control share acquisition” or other similar
antitakeover Law (each, a “Takeover Law”) is
applicable to the Merger and the Contribution (as contemplated by the Debt
Term
Sheet as of the date hereof). The approval of the Transactions
(including the Contribution (as contemplated by the Debt Term Sheet as of the
date hereof)) by the Requisite Stockholder Vote is the only vote of the holders
of any class or series of Equity Interests of the Company necessary to adopt
this Agreement or approve the Transactions.
(d) The
Board has received the opinion of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial
Advisors, Inc., dated the date, or shortly prior to the date, of this Agreement,
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 certain Excluded
Persons (as defined in such opinion), in the Merger pursuant to this Agreement
is fair to them from a financial point of view, a copy of which opinion has
been
delivered to Parent.
SECTION
4.05 No
Conflict; Required
Filings and Consents.
(a) The
execution and delivery of this Agreement by the Company do not, and the
consummation of the Merger will not,
(i) conflict
with or violate the articles of incorporation or bylaws of the
Company,
(ii) assuming
that all consents, approvals, authorizations and other actions described in
Section 4.05(b)
have been obtained and all filings and notifications described in Section 4.05(b)
have been made, conflict with or violate any Law applicable to the Company
or by
which any property or asset of the Company is bound, or
(iii) except
as set forth in Section 4.05(a) of
the Company Disclosure Letter, require the consent of any person under,
or result in any breach or violation of or constitute a default (or an
event that, with notice or lapse of time or both, would become a default) under,
any contract to which the Company is a party or by which the Company or any
property or asset of the Company is bound,
except,
with respect to clauses (ii) and (iii) of this Section 4.05(a), for
any such conflicts, violations, breaches or defaults that would not be
reasonably expected to have a 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 of the Merger
by the Company will not, require any Permit of, or filing with or notification
to, any Governmental Authority, except for
(i) applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”),
(ii) the
pre-merger notification requirements of the HSR Act,
(iii) the
filing with the Securities and Exchange Commission (the “SEC”) of the
Proxy
Statement,
(iv) any
filings required under the rules and regulations of the NASDAQ Global Market
(“NASDAQ”),
(v) filing
and recordation of appropriate merger documents and the amended and restated
articles of incorporation contemplated by Section 2.05(a) as
required by the FBCA and appropriate documents with the relevant authorities
of
other states in which the Company is qualified to do business, and
(vi) such
Permits, filings and notifications the failure of which to obtain or make would
not be reasonably expected to have a Material Adverse Effect.
SECTION
4.06 Permits;
Compliance.
(a) The
Company is in possession of all Permits necessary to own, lease and operate
its
properties and to carry on its business as it is now being conducted, including
Permits required under Environmental Laws (the “Environmental
Permits”), except where failure to be in possession of such Permits would
not reasonably be expected to have a Material Adverse Effect. Section 4.06 of the
Company Disclosure Letter contains a complete and accurate list of all such
Permits. The Company is, and has been, in compliance with the terms
and conditions of such Permits, except where failure to so comply would not
reasonably be expected to have a Material Adverse Effect and, as of the date
of
this Agreement, no notice of violation, suspension or cancellation of any
such
Permit is pending or, to the Company’s knowledge, threatened.
(b) The
Company is not in violation of any Law, except for such violations that would
not, individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect. The Company is not subject to any current or, to the
Company’s knowledge, threatened investigation regarding a potential violation of
Law and has not received any outstanding or uncured written notice alleging
any
violation of Law or directing the Company to take any remedial action with
respect to such Law and, to the knowledge of the Company, there are no facts,
events or conditions that could reasonably be expected to constitute potential
defaults or violations of any Law, in any such case, except as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION
4.07 SEC Filings;
Financial
Statements; Undisclosed Liabilities.
(a) Other
than as set forth in Section 4.07 of the
Company Disclosure Letter, the Company has timely filed all forms, reports,
statements and other documents (including all exhibits, supplements and
amendments thereto) required to be filed by it with the SEC since July 1, 2004
(collectively, with any amendments thereto, the “SEC
Reports”). Each SEC Report (including any financial statements
or schedules included therein) (i) as of its date of filing and if amended
prior
to the date hereof as of the date of filing of such amendment, complied or,
if
filed subsequent to the date hereof, at the time of filing will comply, in
all
material respects with the requirements of the Securities Act of 1933, as
amended (the “Securities Act”), or
the Exchange Act, as the case may be, and the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx
Act”), including, in each case, the rules and regulations promulgated
thereunder, and (ii) as of its date of filing and if amended prior to the date
hereof as of the date of filing of such amendment did not, or, if filed
subsequent to the date of this Agreement, at the time of filing will not,
contain any untrue statement of a material fact or as of its date of filing
and
if amended prior to the date hereof as of the date of filing of such amendment
did not omit, or, if filed subsequent to the date of this Agreement, at the
time
of filing will not 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 or are made, not misleading.
(b) Each
of the financial statements (including, in each case, any notes and schedules
thereto) included or to be included (or incorporated, or to be incorporated,
by
reference) in the SEC Reports (collectively, the “Company Financials”)
(i) was or will be 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 interim financial statements,
as
may be permitted by the SEC on Form 10-Q under the Exchange Act), and
(ii) fairly presents or will fairly present in all
material
respects the financial position, results of operations, cash flows and changes
in stockholders’ equity of the Company as at the respective dates thereof and
for the respective periods indicated therein except as otherwise noted therein
(except that the unaudited statements may not contain footnotes and are subject
to normal and recurring year-end adjustments, none of which are or are expected
to be material in nature or amount) in all material respects in accordance
with
GAAP and the applicable rules and regulations promulgated by the
SEC.
(c) The
Company does not have any liabilities, other than (i) liabilities reflected
on the Company Reference Balance Sheet, (ii) liabilities incurred
subsequent to the date of the Company Reference Balance Sheet in the ordinary
course of business of the Company and (iii) liabilities that, individually
or in
the aggregate, would not be reasonably expected to have a Material Adverse
Effect.
(d) The
records, systems, controls, data and information of the Company are recorded,
stored, maintained and operated under means (including any electronic,
mechanical or photographic process, whether computerized or not) that are under
the exclusive ownership and direct control of the Company or its accountants
(including all means of access thereto and therefrom), except for any
nonexclusive ownership and nondirect control that has not had and would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has (i) established and maintains
disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14
promulgated under the Exchange Act) designed to ensure that material information
relating to the Company is made known to the Chief Executive Officer and Chief
Financial Officer and (ii) disclosed, based on its most recent evaluation prior
to the date of this Agreement, to the Company's outside auditors and the audit
committee of the Company (A) any significant deficiencies and material
weaknesses in the design or operation of internal control over financial
reporting (as defined in Rule 13a-15(f) of the Exchange Act) that would be
reasonably likely to adversely affect the Company's ability to record, process,
summarize and report financial information and (B) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's internal control over financial reporting. To
the knowledge of the Company, since July 1, 2005, the Company has not suffered,
discovered or been informed of any material weaknesses in the design or
operation of its internal control over financial reporting (as defined in Rule
13a-15(f) of the Exchange Act).
(e) Since
July 1, 2005, (i) neither the Company nor, to the knowledge of the Company,
any
director, officer, employee, auditor, accountant or representative of the
Company has received or otherwise had or obtained knowledge of any material
complaint, allegation, assertion or claim, whether written or oral, regarding
the accounting or auditing practices, procedures, methodologies or methods
of
the Company or its internal control over financial reporting, including any
material complaint, allegation, assertion or claim that the Company has engaged
in questionable accounting or auditing practices and (ii) to the knowledge
of
the Company, no attorney representing the Company, whether or not employed
by
the Company, has reported evidence of a material violation of securities laws,
breach of fiduciary duty or similar violation by the Company or any of its
officers, directors, employees or agents to the Board any committee thereof
or
to any director or officer of the Company.
SECTION
4.08 Absence
of Certain Changes
or Events. Except as set forth in Section 4.08 of
the Company Disclosure Letter, or as expressly contemplated by this Agreement,
since June 30, 2007 and prior to the date of this Agreement, the Company
has conducted its business in the ordinary course consistent with past practice
and there has not occurred (i) any Effect, including any damage to, destruction
or loss of any asset of the Company (whether or not covered by insurance),
constituting or that would reasonably be expected to have a Material Adverse
Effect or (ii) any action or event that would require Parent’s consent under
Section 6.01 if
such action or event had occurred after the date of this Agreement.
SECTION
4.09 Absence
of
Litigation. Except as set forth in Section 4.09 of
the Company Disclosure Letter, as of the date hereof, there is no Action pending
or, to the Company’s knowledge, threatened against the Company or any property
or asset of the Company that (i) involves an amount in controversy in excess
of
$500,000 or (ii) seeks material injunctive or other non-monetary
relief. Neither the Company nor any property or asset of the Company
is subject to any Order that (i) involves an amount in controversy in excess
of
$500,000 or (ii) seeks material injunctive or other non-monetary
relief. As of the date of this Agreement, there is no Action pending
or, to the knowledge of the Company, threatened against the Company or any
property or asset of the Company seeking to prevent, hinder, modify, delay
or
challenge the Transactions contemplated by this Agreement.
SECTION
4.10 Employee
Benefit
Plans.
(a) Section
4.10(a) of
the Company Disclosure Letter lists, with respect to the Company and any trade
or business (whether or not incorporated) which is treated as a single employer
with the Company within the meaning of Section 414(b), (c), (m) or (o) of the
Code (an “ERISA
Affiliate”), (i) all employee benefit plans (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), (ii)
loans
to officers and directors other than advances for expense reimbursements
incurred in the ordinary course of business and any stock option, stock
purchase, phantom stock, stock appreciation right, supplemental retirement,
severance, sabbatical, medical, dental, vision care, disability, employee
relocation, cafeteria benefit (Code Section 125) or dependent care (Code Section
129), life insurance or accident insurance plans, programs, agreements or
arrangements, (iii) all bonus, pension, profit sharing, savings, deferred
compensation or incentive plans, programs, agreements or arrangements, (iv)
other material fringe or employee benefit plans, programs, policies, agreements
or arrangements and (v) any current or former employment, change of control,
retention or executive compensation or severance agreements as to which
unsatisfied obligations of the Company remain for the benefit of, or relating
to, any present or former Employee, consultant or director of the Company,
in
each case, whether or not in writing (together, the “Plans”). With
respect to each Plan (as applicable), the Company has made available to Parent
complete and accurate copies of: (i) the most recent two years’
annual reports on Form 5500, including all schedules thereto; (ii) the most
recent determination letter from the Internal Revenue Service (“IRS”) for any
Plan
that is intended to qualify under Section 401(a) of the Code (other than Plans
for which no determination letter is required); (iii) the plan documents and
summary plan descriptions, or a written description of the terms of any Plan
that is not in writing; (iv) any related trust agreements, insurance contracts,
insurance policies or other documents of any funding arrangements; and (v)
any
notices to or from the IRS or any office or representative of the Department
of
Labor or any similar Governmental Authority, within the last two years, relating
to any material compliance issues in respect of any such Plan.
(b) If
required, any Plan intended to be qualified under Section 401(a) of the Code
has
either obtained from the IRS a favorable determination letter as to its
qualified status under the Code, including all amendments to the Code effected
by the Tax Reform Act of 1986, or has applied or will apply to the IRS for
such
a determination letter prior to the expiration of the requisite period under
applicable Treasury Regulations or IRS pronouncements in which to apply for
such
determination letter and to make any amendments necessary to obtain a favorable
determination or has been established under a standardized prototype plan for
which an IRS opinion letter has been obtained by the plan sponsor and is valid
as to the adopting employer.
(c) Each
Plan has been administered in accordance with its terms and in compliance with
the requirements prescribed by all applicable Laws (including ERISA and the
Code), except as would not reasonably be expected to have a Material Adverse
Effect. The Company and each ERISA Affiliate have performed all
obligations required to be performed by them under, are not in default under
or
violation of, and have no knowledge of any default or violation by any other
party to, any of the Plans, in any such case, except as would not reasonably
be
expected to have a Material Adverse Effect. All contributions and
premiums required to be made by the Company or any ERISA Affiliate to any Plan
have been made on or before their due dates. No Action has been
brought, or to the knowledge of the Company is threatened, against or with
respect to any such Plan, including any audit or inquiry by the IRS or United
States Department of Labor, other than routine claims for benefits.
(d) Neither
the Company nor, to the knowledge of the Company, any fiduciary or party in
interest of any Plan has participated in, engaged in or been a party to any
transaction with respect to any Plan that is prohibited under Section 4975
of
the Code or Section 406 of ERISA and not exempt under Section 4975 of the Code
or Section 408 of ERISA, respectively. With respect to any Plan, (i)
neither the Company nor any of its ERISA Affiliates has had asserted against
it
any claim for Taxes under Chapter 43 of Subtitle D of the Code and Section
5000
of the Code, or for penalties under ERISA Section 502(c), 502(i) or 502 (l),
and
(ii) to the knowledge of the Company, no officer, director or employee of the
Company has committed a breach of any fiduciary responsibility or obligation
imposed by Title I of ERISA that would reasonably be expected to have a Material
Adverse Effect.
(e) With
respect to each Plan, the Company has complied with (i) the applicable health
care continuation and notice provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”) and the
regulations thereunder, (ii) the applicable requirements of the Family Medical
and Leave Act of 1993 and the regulations thereunder and (iii) the applicable
requirements of the Health Insurance Portability and Accountability Act of
1996
and the regulations thereunder, except where the failure to comply with the
applicable requirements of such laws and regulations would not reasonably be
expected to have a Material Adverse Effect..
(f) Except
as disclosed in Section 4.10(f) of
the Company Disclosure Letter or as otherwise provided in this Agreement, the
consummation of the Merger (and either alone or in conjunction with any other
event) will not (i) entitle any current or former Employee, director or
consultant of the Company to any payment (whether of severance pay, unemployment
compensation, golden parachute, bonus or otherwise), (ii) accelerate, forgive
indebtedness, vest, distribute, or increase benefits or obligation to fund
benefits with respect to any Employee or director of the Company, or (iii)
accelerate the time of payment or vesting of Company Stock Awards, or increase
the amount of compensation due any Employee, director or
consultant.
(g) Except
as set forth in Section 4.10(g) of
the Company Disclosure Letter, (i) no amounts payable under any of the Plans
will not be deductible for federal income tax purposes by virtue of Section
162(m) or Section 280G of the Code, and (ii) none of the Plans contains any
provision requiring a gross-up pursuant to Section 280G of the Code or similar
tax provisions.
(h) Except
as set forth in Section 4.10(h) of
the Company Disclosure Letter, no Plan maintained by the Company provides
benefits, including, without limitation, death or medical benefits (whether
or
not insured), with respect to current or former Employees after retirement
or
other termination of service (other than (i) coverage mandated by Section 4980B
of the Code or any similar state Law, (ii) death benefits or retirement benefits
under any “employee pension benefit plan,” as that term is defined in Section
3(2) of ERISA, or (iii) benefits, the full direct cost of which is borne by
the
current or former Employee (or beneficiary thereof)).
(i) Neither
the Company nor any ERISA Affiliate has any liability with respect to any (i)
employee pension benefit plan (within the meaning of Section 3(2) of ERISA)
which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA
or Section 412 of the Code, (ii) “multiemployer plan” as defined in Section
3(37) of ERISA, or (iii) “multiple employer plan” (as defined in Section 4063 or
4064 of ERISA).
(j) Each
Plan that is a non-qualified deferred compensation plan or arrangement subject
to Section 409A of the Code has been operated and administered in good faith
compliance with Section 409A of the Code from the period beginning January
1,
2005, or the date such Plan was established, whichever date is later, through
the date hereof.
SECTION
4.11 Labor
Matters.
(a) Except
as set forth in Section 4.11(a) of
the Company Disclosure Letter, the Company and, to the knowledge of the Company,
its Employees (i) are not a party to any collective bargaining agreement or
other labor union contract and (ii) have not recognized or bargained with,
or
are represented by, any union or labor organization.
(b) Except
as set forth in Section 4.11(b) of
the Company Disclosure Letter, there has not been within the past two years,
nor
is there pending or, to the Company’s knowledge, threatened (i) any strike,
slowdown, picketing or work stoppage by or with respect to any current employees
of the Company (“Employees”) or former
employees of the Company, or (ii) any Action against the Company relating to
a
violation or alleged violation of any Law relating
to or establishing standards of conduct with respect to labor relations or
employment matters (collectively, “Employment Laws”),
including any charge or complaint filed by an Employee or union with the
National Labor Relations Board, the Equal Employment Opportunity Commission,
the
Department of Labor or any other Governmental Authority or in any grievance
or
arbitration process, that would reasonably be expected to have a Material
Adverse Effect.
(c) The
Company is employing all of its Employees in compliance with all applicable
Laws
relating to employment and employment practices, including, without limitation,
all applicable Laws related to taxation, employment standards, workers’
compensation, terms and conditions of employment, occupational health and
safety, disability benefits, wages and hours, termination of employment, human
rights, pay equity, employment equity, and, where applicable, the Worker
Adjustment and Retraining Notification Act, except where failure to so comply
would not reasonably be expected to have a Material Adverse
Effect. Except as set forth in Section 4.11(c) of
the Company Disclosure Letter, during the past three years, there has been
no
harassment, discrimination, retaliatory act or similar claim, action or
proceeding against the Company or any of its officers, directors or Employees
that is or was material to the Company or that is currently
outstanding.
SECTION
4.12 Proxy
Statement. At the date the Proxy Statement (or any amendment
or supplement thereto) is first mailed to stockholders of the Company, the
Proxy
Statement shall not contain any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that no representation or warranty is made by
the
Company with respect to any information contained in the Proxy Statement that
is
based on, and in conformity with, information supplied in writing by Parent,
Merger Sub or any of Parent’s or Merger Sub’s representatives expressly for
inclusion in the Proxy Statement). The Proxy Statement shall comply
in all material respects as to form with the requirements of the Exchange Act
and the rules and regulations thereunder.
SECTION
4.13 Property;
Leases.
(a) Section
4.13(a) of
the Company Disclosure Letter references a true, correct and complete list
of
all real property and interests in real property leased or subleased by the
Company from or to any person (collectively, the “Real
Property”). Section 4.13(a) of
the Company Disclosure Letter references, with respect to each of the Real
Properties, all existing leases, subleases, licenses or other occupancy
contracts to which the Company is a party or by which the Company is bound,
and
all amendments, modifications, extensions and supplements thereto (collectively,
the “Tenant
Leases”). The Company does not own and never has owned any
real property.
(b) A
true, correct and complete copy of each Tenant Lease has been furnished or
made
available to Parent. The Company has a valid and enforceable
leasehold interest under each of the Tenant Leases, to the Company’s knowledge,
free and clear of all Encumbrances other than Permitted Encumbrances, and each
of the Tenant Leases is in full force and effect. Neither the Company
nor, to the knowledge of the Company, any other party to any Tenant Lease is
in
material breach of or in material default under any of the Tenant
Leases. The Company
enjoys undisturbed possession under all Tenant Leases, except for such breaches
of the right to undisturbed possession that do not materially interfere with
the
ability of the Company to conduct its business on such Real
Property.
SECTION
4.14 Contracts.
(a) Section
4.14(a) of
the Company Disclosure Letter lists the following contracts to which the Company
is a party or by which it is bound:
(i) any
contract with respect to the formation, creation, operation, management or
control of a partnership, limited liability company or joint venture, or other
similar agreement or arrangement;
(ii) any
contract that limits or otherwise restricts the Company, or that would, after
the Effective Time, limit or restrict Parent or the Surviving Corporation,
from
engaging or competing in any line of business or in any geographic area, from
selling or purchasing from any person or from hiring any person;
(iii) any
contract relating to collective bargaining;
(iv) any
contract required to be filed as an exhibit to the SEC Reports as a “material
contract” pursuant to Item 601(b)(10) of Regulation S-K;
(v) any
contract relating to Indebtedness and having an outstanding principal amount
in
excess of $250,000;
(vi) any
contract involving the acquisition or disposition, directly or indirectly (by
merger or otherwise), of all or substantially all of the assets of any person
or
business or of capital stock or other equity interests that (A) is
currently in effect or was in effect at any time within the past three years
or
(B) pursuant to which the Company has continuing indemnification,
“earn-out” or other contingent payment obligations (other than acquisitions or
dispositions of inventory in the ordinary course of business consistent with
past practice); and
(vii) any
supply contract that by its terms calls for aggregate payment by the Company
under such contract of more than $1,000,000 per annum.
(b) The
Company has made available to Parent a correct and complete copy of each
contract listed in Section 4.14(a) of
the Company Disclosure Letter. With respect to each such contract
(except as set forth in Section 4.14(a) of
the Company Disclosure Letter or as would not reasonably be expected to have
a
Material Adverse Effect): (i) the contract is legal, valid,
binding and enforceable against the Company and, to the Company’s knowledge, the
other party thereto, and is in full force and effect; (ii) the contract will
continue to be legal, valid, binding and enforceable against the Surviving
Corporation or any applicable Financing Subsidiary and, to the Company’s
knowledge, the other party thereto, and will remain in full force and effect
on
identical terms following the Effective Time; (iii) the Company is not in breach
or default, and no event has occurred that with the passage of time or giving
of
notice would constitute a breach or default by the Company, or permit
termination or acceleration by the
other
party, under the contract; and (iv) to the Company’s knowledge, no other party
to the contract is in breach or default, and no event has occurred that with
the
passage of time or giving of notice would constitute a breach or default by
such
other party, or permit termination or acceleration by the Company, under the
contract.
SECTION
4.15 Intellectual
Property. Section 4.15(a) of
the Company Disclosure Letter contains a description of all registered
Intellectual Property, all applications for registration of Intellectual
Property and all material unregistered Intellectual Property (i) owned by
the Company (the “Company Intellectual
Property”) or (ii) licensed, used or held for use by the Company in
the conduct of its business, other than off-the-shelf software (“Licensed Intellectual
Property”). The Company has, and any applicable Financing
Subsidiary will have following the Effective Time, (i) all right, title and
interest in and to all Company Intellectual Property, free and clear of all
Encumbrances, other than Permitted Encumbrances and (ii) all necessary rights
in
and to all Licensed Intellectual Property, free and clear of all Encumbrances,
other than Permitted Encumbrances. To the Company’s knowledge: (i)
the Company is not infringing, misappropriating or diluting, and has not
infringed, misappropriated or diluted, any Intellectual Property of any third
party and (ii) the Company Intellectual Property is valid, subsisting and
enforceable. The Company has not received any written communication
alleging that it has infringed, misappropriated or diluted the Intellectual
Property rights of any third person or challenging the ownership or validity
of
any Company Intellectual Property or the Company’s rights with respect to any
Company Intellectual Property or Licensed Intellectual Property, which claim
or
allegation is unresolved. To the Company’s knowledge, there is no
unauthorized use, infringement or misappropriation of the Company Intellectual
Property or Licensed Intellectual Property by any third
party. Neither the Company nor, to the Company’s knowledge, any other
party is in material default (or would with the giving of notice or lapse of
time be in material default) under any license to use any of the Licensed
Intellectual Property.
SECTION
4.16 Taxes.
(a) The
Company has timely filed, or caused to be timely filed, all material federal,
state, local and foreign Tax returns and reports required to be filed by it
(collectively, “Tax
Returns”) taking into account applicable extensions, and has paid,
collected or withheld, or caused to be paid, collected or withheld, all material
Taxes required to be paid, collected or withheld, other than such Taxes for
which adequate reserves in the Company Financials have been established. As
of
the date hereof, there are no written claims or assessments pending against
the
Company for any alleged deficiency in any Tax, and the Company has not been
notified in writing of any proposed Tax claims or assessments against the
Company (other than, in each case, claims or assessments that are being
contested by the Company in good faith and for which adequate reserves in the
Company Financials have been established and other than claims or assessments
that are not material to the Company). There are no liens for Taxes
on the assets of the Company, except for Permitted Encumbrances and liens that
are not material to the Company.
(b) The
Company has not constituted either a “distributing corporation” or a “controlled
corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a
distribution of stock (to any person that is not a member of the consolidated
group of which the Company is the common parent corporation) qualifying for
tax-free treatment under Section
355 of the Code (i) within the two-year period ending on the date hereof or
(ii)
in a distribution which could otherwise constitute part of a “plan” or “series
of related transactions” (within the meaning of Section 355(e) of the Code) in
conjunction with the Merger.
(c) Except
as set forth in Section 4.16(c) of
the Company Disclosure Letter, as of the date hereof, the Company is not being
audited by any foreign, federal or state taxing authority or, to the knowledge
of the Company, has been notified by any foreign, federal or state taxing
authority that any such audit is pending.
(d) The
Company is not and (i) has not been at any time within the five-year period
ending on the date hereof a United States real property holding corporation
within the meaning of Section 897(c)(2) of the Code and (ii) has never been
a
member of any consolidated, combined, unitary or affiliated group of
corporations for any Tax purposes other than a group of which the Company is
or
was the common parent corporation.
(e) The
Company is not a party to any agreement providing for the allocation or sharing
of Taxes with any entity under which the Company could reasonably be expected
to
have material liability for Taxes after the Closing.
(f) To
the knowledge of the Company, the Company has not participated in any
transaction that is, or is reasonably expected to become, a listed transaction
within the meaning of Treasury Regulations Section 1.6011-4.
SECTION
4.17 Environmental
Matters.
(a) The
Company is not, to its knowledge, the subject of any investigation by any
Governmental Authority, and the Company has not received any written notice
or
claim, or entered into any negotiations or agreements with any person, relating
to any material liability or material remedial action under any applicable
Environmental Laws.
(b) The
Company has for the past five years complied, and is currently in compliance
with, all Environmental Laws, except for failures to comply that would not
reasonably be expected to have a Material Adverse Effect.
(c) The
Company has not manufactured, treated, stored, disposed of, generated, handled
or released any Hazardous Substances in a manner that has given or is reasonably
expected to give rise to any liability to the Company under Environmental Laws,
except for actions that would not reasonably be expected to have a Material
Adverse Effect.
(d) No
Hazardous Substances have been released from or otherwise come to be located
at
any Property in a manner that has given rise to any liability to the Company
under Environmental Laws, except as would not reasonably be expected to have
a
Material Adverse Effect.
(e) The
Company has provided copies of all environmental assessments, audits, studies
and other environmental reports in its possession that relate to any
Property.
(f) The
representations in this Section 4.17 and
Section
4.06(a)
are the sole and exclusive representations and warranties concerning
environmental matters, environmental compliance or the environmental condition
of the Property.
SECTION
4.18 Brokers. Except
for UBS Securities LLC and Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial Advisors,
Inc., the fees of which will be borne by the Company, no broker, finder or
investment banker is entitled to any brokerage, finder’s or other fee or
commission in connection with the Transactions based upon arrangements made
by
or on behalf of the Company. The Company has provided to Parent true
and correct copies of its engagement letters with each of UBS Securities LLC
and
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial Advisors, Inc.
SECTION
4.19 Rights
Plan. The Rights Agreement, dated as of March 27, 2003 (the
“Rights
Agreement”), between the Company and Continental Stock Transfer &
Trust Company, as rights agent, expires in accordance with its terms
on March
27, 2008. The Board has approved, and the Company and Continental
Stock Transfer & Trust Company have entered into, an amendment to the Rights
Agreement, as a result of which neither the execution and delivery of this
Agreement nor the consummation of the Transactions will result in (i) Parent,
Merger Sub or any of their respective Affiliates becoming an Acquiring Person
or
(ii) the occurrence of (A) a Distribution Date, (B) the Shares Acquisition
Date,
(C) a Section 11(a)(ii) Event or (D) a Section 13 Event, in each case as such
terms are defined in the Rights Agreement.
SECTION
4.20 Insurance. The
Company is covered by valid and currently effective insurance policies issued
in
favor of the Company that, to the knowledge of the Company, are customary and
adequate for companies of similar size in the industries and locations in which
the Company operates.
SECTION
4.21 Related
Party
Transactions. All transactions, agreements or arrangements
between the Company, on the one hand, and its Affiliates or other persons,
on
the other hand, that are required to be disclosed in the Company SEC Reports
in
accordance with Item 404 of Regulation S-K under the Securities Act have been
so
disclosed. Any Affiliate Transaction as of the time it was entered
into and as of the time of any amendment or renewal thereof contained such
terms, provisions and conditions as were at least as favorable to the Company
as
would have been obtainable by the Company in a similar transaction with an
unaffiliated third party.
SECTION
4.22 Certain
Payments. Neither the Company nor, to the knowledge of the
Company, any of its directors, executive officers, representatives, agents
or
employees (a) has used or is using any corporate funds for any illegal
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (b) has used or is using any corporate funds for any direct
or indirect unlawful payments to any foreign or domestic governmental officials
or employees, (c) has violated or is violating any provision of the Foreign
Corrupt Practices Act of 1977, (d) has established or maintained, or is
maintaining, any unlawful fund of corporate monies or other properties or (e)
has made any bribe, unlawful rebate, payoff, influence payment, kickback or
other unlawful payment of any nature.
SECTION
4.23 Suppliers. As
of the date of this Agreement, the existing suppliers of the Company are
adequate for the operation of the business of the Company as presently
conducted. Except as would not have a Material Adverse Effect, since
July 1, 2007 and through the date hereof, (a) the Company has not received
any
written notice or threat of any change in relations with any of the major
suppliers of the Company, and (b) the Company has not received from any of
the
major suppliers of the Company any written notice of termination or material
alteration of any contract or business relationship governed thereby and, to
the
Company's knowledge, no other party to any such contract intends to or has
indicated to the Company in writing an intent to (i) terminate, (ii) not renew
or extend (if contemplated by the terms thereof and requested by the Company),
(iii) seek to materially amend or modify, or (iv) not fully perform its
obligations under any contract.
SECTION
4.24 Warranties. There
are no material claims pending or, to the knowledge of the Company, threatened
against the Company with respect to any product alleged to have been
manufactured, sold, leased or otherwise distributed by the Company, and alleged
to have been defective or improperly designed or manufactured or in breach
of
any express or implied product warranty, except to the extent reflected or
reserved for in the Company Financials most recently filed in the Company SEC
Reports prior to the date hereof.
SECTION
4.25 Occupational
Safety and
Health Matters.
(a) Except
as set forth on Section 4.25(a) of
the Company Disclosure Letter, the Company is and, during the past two years,
has been in compliance with, and is not in violation of, or liable under, any
applicable Occupational Safety and Health Laws, in any such case, except for
such failures as would not reasonably be expected to have a Material Adverse
Effect.
(b) Except
as set forth on Section 4.25(b) of
the Company Disclosure Letter, the Company has not, within the past two years,
received any written notice or other communication from any Governmental
Authority or any other person regarding (i) any failure to comply in any
material respect with any applicable Occupational Safety and Health Law or
(ii)
any obligation to undertake or bear any material cost of any Occupational Safety
and Health Liabilities.
(c) Except
as set forth on Section 4.25(c) of
the Company Disclosure Letter, to the Company’s knowledge, no closure on any
Property is required pursuant to any Occupational Safety and Health
Law.
(d) To
the Company’s knowledge, the Company has made available to Parent copies of any
occupational and safety assessment or audit reports or similar studies or
analyses relating to the business of the Company or any Property that have
been
prepared on behalf of the Company since January 1, 2002.
SECTION
4.26 Investment
Company
Act/Public Utilities Holding Company Act. The Company is not
(i) an “investment company” or a company controlled by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, or (ii)
a
“holding company” or a “subsidiary company” or an “affiliate” of a “holding
company” within the
meaning of the Public Utility Holding Company Act of 1935, as
amended. Similarly, the Company is not subject to regulation as a
“holding company,” an “affiliate” of a “holding company” or a “subsidiary
company” of a “holding company” within the meaning of the Public Utility Holding
Company Act of 2005, as amended.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF PARENT AND MERGER SUB
As
an
inducement to the Company to enter into this Agreement, Parent and Merger Sub
hereby, jointly and severally, represent and warrant to the Company
that:
SECTION
5.01 Corporate
Organization. Each of Parent and Merger Sub is a corporation
duly incorporated, validly existing and in good standing under the Laws of
the
state of its incorporation and has the requisite corporate power and authority
to own, lease and operate its properties and to carry on its business as it
is
now being conducted.
SECTION
5.02 Power
and
Authority. Each of Parent and Merger Sub has all necessary
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the Transactions. The
execution and delivery of this Agreement by Parent and Merger Sub and the
consummation by Parent and Merger Sub of the Merger have been, and the
consummation by Parent and Merger Sub of the other Transactions will be, duly
and validly authorized by all necessary corporate action on the part of Parent
and Merger Sub, and no other corporate proceedings on the part of Parent or
Merger Sub are necessary to authorize this Agreement or to consummate the Merger
(other than, with respect to the Merger, the filing and recordation of
appropriate merger documents as required by the FBCA). This Agreement
has been duly and validly executed and delivered by Parent and Merger Sub and,
assuming due authorization, execution and delivery of this Agreement by the
Company, constitutes a legal, valid and binding obligation of each of Parent
and
Merger Sub enforceable against each of Parent and Merger Sub in accordance
with
its terms, except to the extent that enforceability thereof may be limited
by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by principles of
equity regarding the availability of remedies.
SECTION
5.03 No Conflict;
Required
Filings and Consents.
(a) The
execution and delivery of this Agreement by Parent and Merger Sub do not, and
the consummation of the Merger will not,
(i) conflict
with or violate the certificate or articles of incorporation or bylaws of either
Parent or Merger Sub,
(ii) assuming
that all consents, approvals, authorizations and other actions described in
subsection (b) have been obtained and all filings and notifications
described in subsection (b) have been made, conflict with or violate any
Law applicable to Parent or Merger Sub or by which any property or asset of
either of them is bound, or
(iii) result
in any breach or violation of, or constitute a default (or an event that, with
notice or lapse of time or both, would become a default) under, any contract
to
which Parent or Merger Sub is a party or by which Parent or Merger Sub or any
property or asset of either of them is bound except, with respect to clauses
(ii) and (iii), for any such conflicts, violations, breaches or defaults that
would not prevent or delay consummation of the Merger or otherwise prevent
Parent or Merger Sub from performing its obligations under this
Agreement.
(b) The
execution and delivery of this Agreement by Parent and Merger Sub do not, and
the performance of this Agreement by Parent and Merger Sub and the consummation
of the Merger by Parent and Merger Sub will not, require any 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,
(iii) the
filing with the SEC of the Proxy Statement,
(iv) any
filings required under the rules and regulations of the NASD,
(v) filing
and recordation of appropriate merger documents and the amended and restated
articles of incorporation contemplated by Section 2.05(a) as
required by the FBCA and appropriate documents with the relevant authorities
of
other states in which the Company is qualified to do business, and
(vi) such
Permits, filings and notifications the failure of which to obtain or make would
not prevent or delay consummation of the Merger or otherwise prevent Parent
or
Merger Sub from performing its obligations under this Agreement.
SECTION
5.04 Proxy
Statement. None of the information supplied by Parent or
Merger Sub in writing expressly for inclusion in the Proxy Statement shall,
at
the date the Proxy Statement (or any amendment or supplement thereto) is first
mailed to stockholders of the Company contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
SECTION
5.05 Interim
Operations of Merger
Sub. Merger Sub was formed solely for the purpose of engaging
in the Transactions and has not engaged in any business activities or conducted
any operations other than in connection with the Transactions.
SECTION
5.06 Ownership
of Company Equity
Interests. As of the date of this Agreement, none of the
Guarantors, Parent, Merger Sub or any of their respective Affiliates or
associates is the record or beneficial owner of any Equity Interests of the
Company.
SECTION
5.07 Financing. Parent
has delivered to the Company (i) a true and complete copy of an executed
written commitment from the lender to the borrower thereunder, including
the Debt Term Sheet (as the same may be amended or modified from time to
time
after the date hereof with Parent’s consent (not to be unreasonably withheld,
delayed or conditioned), including, without limitation, at the request of
any
rating agency or insurance company insuring all or any part of the financing
thereunder, the “Debt
Financing Commitment”), pursuant to which the lender party thereto has
agreed, subject only to the terms and conditions set forth therein, to provide
or cause to be provided to Parent and/or Merger Sub debt financing in the
amounts set forth therein for the purposes of financing the Transactions
and
related fees and expenses and the other purposes set forth therein (the “Debt Financing”) and
(ii) a true and complete copy of an executed written commitment (the “Equity Financing
Commitment” and, together with the Debt Financing Commitment, the “Financing
Commitments”), pursuant to which the parties thereto have agreed, subject
only to the terms and conditions set forth therein, to provide or cause to
be
provided to Parent and/or Merger Sub equity financing in the amounts set
forth
therein for the purposes of financing the Transactions and related fees and
expenses (the “Equity
Financing” and, together with the Debt Financing, the “Financing”).
As of
the date of this Agreement, none of the Financing Commitments has been amended
or modified, and the respective commitments contained in the Financing
Commitments have not been withdrawn or rescinded, in any respect. Parent
has
fully paid any and all commitment fees or other fees in connection with the
Financing Commitments that are required to be paid on or before the date
of this
Agreement in connection therewith or pursuant thereto, and the Financing
Commitments 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 the Financing Commitments. No event has occurred
which, with or without notice, lapse of time or both, would constitute a
breach
or default on the part of Parent or Merger Sub under any of the Financing
Commitments. Subject to the terms and conditions of the Financing Commitments,
and subject to the terms and conditions of this Agreement, the aggregate
proceeds contemplated by the Financing Commitments, together with the cash
on
hand of Parent and Merger Sub at the Effective Time, will be sufficient to
pay
the aggregate Merger Consideration and any other amounts required to be paid
in
connection with the consummation of the Transactions, to make any repayment
or
refinancing of indebtedness contemplated in connection with the Transactions
and
to pay all related fees and expenses (collectively, the “Required
Payments”).
SECTION
5.08 Brokers. No
broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission from the Company or any of its Affiliates (but excluding
the Surviving Corporation) in connection with the Transactions based upon
arrangements made by or on behalf of Parent or Merger Sub.
SECTION
5.09 Solvency. Assuming
(a) that the Company is solvent immediately prior to the Effective Time,
(b) the satisfaction of the conditions to Parent’s and Merger Sub’s
obligations to consummate the Merger, or waiver of such conditions, (c) the
accuracy and completeness of the representations and warranties of the Company
set forth in Article
IV, and (d) that the Company Financials fairly present in all
material respects the financial condition of the Company as of the end of the
periods covered thereby and the results of operations of the Company for the
periods covered thereby, and after giving effect to the Transactions, including
the Financing, any alternative financing and the payment of the aggregate Merger
Consideration, payment of all amounts required to be paid in connection with
the
consummation of the Transactions, and payment of all related fees and expenses,
each of Parent and the Surviving
Corporation
will be Solvent as of the Effective Time and immediately after the consummation
of the Transactions. For the purposes of this Agreement, the term “Solvent” when used
with respect to any person means that, as of any date of determination,
(i) the amount of the “fair saleable value” of the assets of such person
will, as of such date, exceed (A) the value of all “liabilities of such
person, including contingent and other liabilities,” as of such date, as such
quoted terms are generally determined in accordance with applicable Laws
governing determinations of the insolvency of debtors, and (B) the amount
that will be required to pay the probable liabilities of such person on its
existing debts (including contingent and other liabilities) as such debts become
absolute and mature, (ii) such person will not have, as of such date, an
unreasonably small amount of capital for the operation of the businesses in
which it is engaged or proposed to be engaged following such date, and
(iii) such person will be able to pay its liabilities, including contingent
and other liabilities, as they mature. For purposes of this definition, “not
have an unreasonably small amount of capital for the operation of the businesses
in which it is engaged or proposed to be engaged” and “able to pay its
liabilities, including contingent and other liabilities, as they mature” means
that such person will be able to generate enough cash from operations, asset
dispositions or refinancing, or a combination thereof, to meet its obligations
as they become due.
SECTION
5.10 Management
Arrangements. As of the date hereof, none of Parent or Merger
Sub, or any of their respective Affiliates, has entered into any contract,
agreement, arrangement or understanding with any of the officers or directors
of
the Company, or any of their respective Affiliates, that is currently in effect
or that would become effective in the future (upon consummation of the
Transactions or otherwise) and that has not been disclosed to the Company.
SECTION
5.11 Investigation
by Parent and
Merger Sub. Each of Parent and Merger Sub:
(a) acknowledges
that, except as set forth in this Agreement, none of the Company or any of
its
directors, officers, Employees, Affiliates, agents or other Representatives
makes any representation or warranty, either express or implied, as to the
accuracy or completeness of any of the information provided or made available
to
Parent or Merger Sub or their respective Representatives prior to the execution
of this Agreement; and
(b) agrees,
to the fullest extent permitted by Law (except with respect to claims of fraud),
that none of the directors, officers, Employees, stockholders, Affiliates,
or
Representatives of the Company shall have any liability or responsibility
whatsoever to Parent and Merger Sub on any basis (including, in contract, tort
or otherwise) based upon any information provided or made available or
statements made, to Parent or Merger Sub prior to the execution of this
Agreement.
ARTICLE
VI
CONDUCT
OF BUSINESS PENDING THE MERGER
SECTION
6.01 Conduct
of Business by the
Company Pending the Merger.
(a) Between
the date of this Agreement and the Effective Time, except as set forth in Section 6.01(a)
of the Company Disclosure Letter, as otherwise contemplated by this Agreement,
as contemplated by the Financing or any of the other transactions described
in
the Financing Commitments or as required by applicable Law, the Company shall
(i) conduct its business in all material respects in the ordinary course of
business; and (ii) use its commercially reasonable efforts to preserve
substantially intact the business organization of the Company, to keep available
the services of the current officers, Employees and consultants of the Company,
and to preserve, in all material respects, the current relationships of the
Company with customers, licensees, suppliers and other persons with which the
Company has business relations.
(b) Without
limiting the foregoing, except as otherwise contemplated by this Agreement,
as
contemplated by the Financing or any of the other transactions described in
the
Financing Commitments or as disclosed in Section 6.01(b)
of the Company Disclosure Letter, the Company shall not, between the date of
this Agreement and the Effective Time, directly or indirectly, do or agree
to
do, any of the following without the prior written consent of Parent (not to
be
unreasonably withheld, delayed or conditioned):
(i) make,
revoke or change any material Tax election, change in any material respect
any
method of Tax accounting, settle, compromise or incur any material liability
for
Taxes, fail to timely file any Tax Return that is due, file any amended Tax
Return or material claim for refund, surrender any right to claim a material
Tax
refund, or consent to any extension or waiver of the statute of limitations
period applicable to any material Tax claim or assessment, in each case except
as required by GAAP or applicable Law;
(ii) make
any material change in the accounting principles used by it unless required
by a
change in GAAP, applicable Law or any Governmental Authority;
(iii) except
for (A) short-term borrowings incurred in the ordinary course of business
consistent with past practice under its existing credit facility or (B) other
Indebtedness not in excess of $2,000,000 in the aggregate incurred or guaranteed
in the ordinary course of business, incur or guarantee
Indebtedness;
(iv) make
any capital expenditures (other than for tanks and nitrogen generators) either
(A) in excess of $2,000,000 in the aggregate or (B) outside the ordinary course
of business;
(v) except
as expressly permitted by Section 7.03, sell,
lease, license, dispose or permit an Encumbrance (by merger, consolidation,
sale
of stock or assets or otherwise) of any material assets other than sales of
inventory or obsolete equipment in the ordinary course of business and
consistent with past practices;
(vi) make
any change in any compensation arrangement or contract with any present or
former Employee, officer, director, consultant, stockholder or other service
provider of the Company or establish, terminate or materially amend any Plan
or
materially increase benefits (including acceleration of benefits under Plans
other than the Company Stock Award Plans) under any Plan, or grant any Company
Stock Awards or other awards under any Company Stock Award Plan, in each case
other than (A) required pursuant to the terms of any Plan as in effect on
the date of this Agreement or (B) required by Law;
(vii) declare,
set aside or pay any dividend or make any other distribution with respect to
Equity Interests of the Company, or otherwise make any payments to stockholders
in their capacity as such;
(viii) effect
a “plant closing” or “mass layoff,” as those terms are defined in the Worker
Adjustment and Retraining Notification Act;
(ix) (i) issue,
deliver, sell, pledge, transfer, convey, dispose or permit the imposition of
an
Encumbrance on any Equity Interests, or any options, warrants, securities
exercisable, exchangeable or convertible into any Equity Interest or any Right
or Voting Debt other than the issuance of Shares upon the exercise of Company
Stock Awards outstanding as of the date of this Agreement, (ii) redeem, purchase
or otherwise acquire, or propose to redeem, purchase or otherwise acquire,
any
of its outstanding Equity Interests or (iii) split, combine, subdivide or
reclassify any Equity Interests;
(x) enter
into any material contract providing for the sale or license of Intellectual
Property;
(xi)
license, lease, acquire, sublease, grant any material Encumbrance affecting
and/or transfer any material interest in any Real Property other than leases
entered into in the ordinary course of business, or enter into any material
amendment, extension or termination of any leasehold interest in any Real
Property other than in the ordinary course of business;
(xii) make
any acquisition of any person (whether by way of merger, consolidation, tender
offer, share exchange or other activity), or make any capital contributions
to,
or investment in, any person, except for acquisitions of persons or assets
to be
wholly owned, directly or indirectly, by the Company not in excess of $2,000,000
in the aggregate;
(xiii) except
as otherwise expressly permitted by Section 7.03, merge
or consolidate with any person;
(xiv) enter
into, terminate or materially amend any contract listed in Section 4.14(a) of
the Company Disclosure Letter or that would be required to be so listed had
such
contract been entered into prior to the date hereof, or extend the existing,
or
enter into a new, Rights Agreement that does not permit the consummation of
the
Transactions contemplated by this Agreement, as the same may be amended with
the
approval of Parent;
(xv) waive,
release, assign, settle or compromise any material claims, or any material
litigation or arbitration;
(xvi) satisfy,
discharge, waive or settle any material liabilities, other than in the ordinary
course of business;
(xvii) amend
the articles of incorporation or bylaws of the Company; or
(xviii) enter
into any contract, or agree or commit, in writing or otherwise, to do any of
the
foregoing.
ARTICLE
VII
ADDITIONAL
AGREEMENTS
SECTION
7.01 Special
Meeting; Proxy
Statement. Following the execution of this Agreement, the
Company, acting through its Board, shall, in accordance with applicable
Law:
(a) with
reasonable promptness, duly call, give notice of, convene and (unless this
Agreement has been terminated) hold a special meeting of its stockholders (the
“Special
Meeting”) for the purposes of considering and taking action upon the
approval and adoption of this Agreement and, to the extent required, the
Transactions, including adjourning such meeting for up to ten (10) business
days
to obtain such approval. Except to the extent that the Board shall
have withdrawn or modified its approval or recommendation of this Agreement
as
permitted by Section
7.03, the Company shall (i) use commercially reasonable efforts to
solicit the approval of this Agreement and, to the extent required, the
Transactions by the stockholders of the Company and (ii) include in the Proxy
Statement the Board’s declaration of the advisability of this Agreement and its
recommendation to the stockholders of the Company that they adopt this Agreement
and, to the extent required, approve the Transactions, and include disclosure
regarding the approval of the Board. Notwithstanding the foregoing,
the Company may adjourn or postpone the Special Meeting as and to the extent
required by applicable Law;
(b) within
fifteen (15) days after the date hereof, prepare and file with the SEC a
preliminary proxy statement relating to the Merger, this Agreement and the
Transactions and, after consultation with Parent, respond as promptly as
practicable to any comments made by the SEC with respect to the preliminary
proxy statement (including filing as promptly as reasonably practicable any
amendments or supplements thereto necessary to be filed in response to any
such
comments or as required by Law), use its commercially reasonable efforts to
have
the SEC confirm that it has no further comments and as promptly as practicable
thereafter cause a definitive proxy statement, including any amendments or
supplements thereto (the “Proxy Statement”), to
be mailed to its stockholders at the earliest practicable date after the date
that the SEC confirms it has no further comments; provided, however,
that no
amendments or supplements to the Proxy Statement will be made by the Company
without prior consultation with Parent and its counsel; provided, further,
however,
that,
notwithstanding anything to the contrary contained herein, the Company shall
not
be required to mail the Proxy Statement to its stockholders, or to call, give
notice of, convene or hold the Special Meeting, on or prior to the Go-Shop
Period End Date; notwithstanding the foregoing, prior to filing or mailing
of
any preliminary proxy statement or the Proxy Statement (or any amendment or
supplement thereto) or responding to any comments of the SEC with respect
thereto, the Company shall give Parent and its counsel a reasonable opportunity
to review and comment on such document or response and shall give due
consideration to all reasonable additions, deletions or changes suggested
thereto by Parent and its counsel; and
(c) notify
Parent promptly of the receipt of any comments from the SEC or its staff and
of
any request by the SEC or its staff for amendments or supplements to the proxy
statement or for additional information and will supply Parent with copies
of
all correspondence between the Company or any of its Representatives, on the
one
hand, and the SEC or its staff, on the other hand, with respect to the proxy
statement. The Company shall give Parent a reasonable opportunity to
comment on any correspondence with the SEC or its staff or any proposed material
to be included in the proxy statement prior to transmission to the SEC or its
staff and shall not, unless required by Law, transmit any such material to
which
Parent reasonably objects. If at any time prior to the Special
Meeting there shall be discovered any information that should be set forth
in an
amendment or supplement to the Proxy Statement, after obtaining the consent
of
Parent to such amendment or supplement (which consent shall not be unreasonably
withheld or delayed), the Company shall promptly transmit such amendment or
supplement to its stockholders.
SECTION
7.02 Access
to Information;
Confidentiality.
(a) From
the date of this Agreement to the Effective Time and in compliance with
applicable Laws, the Company shall, and shall cause the officers, directors,
employees, auditors, investment bankers, counsel, agents and other
representatives (“Representatives”) of
the Company to afford the Representatives of Parent and Merger Sub reasonable
access at all reasonable times to the officers, employees, properties, offices
and other facilities, books and records of the Company, and shall furnish Parent
and Merger Sub with such financial, operating and other data and information
as
Parent or Merger Sub, through its officers, employees or agents, may reasonably
request.
(b) All
information obtained by Parent or Merger Sub pursuant to this Section 7.02
shall be kept confidential in accordance with the confidentiality agreement,
dated July 13, 2007 and as amended to date (the “Confidentiality
Agreement”), between Aurora Management Partners LLC and the
Company.
(c) No
investigation pursuant to this Section 7.02 or
otherwise shall affect or be deemed to modify any representation or warranty
in
this Agreement of any party hereto.
SECTION
7.03 Solicitation.
(a) Notwithstanding
any other provision of this Agreement to the contrary, during the period
beginning on the date of this Agreement and continuing until 11:59 p.m.,
New York City time, on March 14, 2008 (the “Go-Shop Period End
Date”), the Company and its Representatives shall have the right, acting
under the direction of the Board, to directly
or indirectly: (i) initiate, solicit and encourage Acquisition
Proposals, including by way of public disclosure and by way of providing access
to non-public information to any person (each a “Solicited Person”)
pursuant to one or more Acceptable Confidentiality Agreements; provided, that the
Company shall provide to Parent any material non-public information concerning
the Company that is provided to any Solicited Person given such access which
was
not previously provided to Parent within one business day after provision to
such Solicited Person; and (ii) enter into and maintain, or participate in,
discussions or negotiations with respect to Acquisition
Proposals.
(b) Subject
to Section
7.03(c), from the Go-Shop Period End Date until the Effective Time or, if
earlier, the termination of this Agreement in accordance with Article IX, the
Company shall not, and shall use commercially reasonable efforts to cause its
Representatives not to, directly or indirectly, (i) initiate, solicit or
encourage (including by way of providing non-public information) the submission
of any Acquisition Proposal or engage in any discussions or negotiations with
respect thereto or (ii) approve or recommend, or publicly propose to
approve or recommend, an Acquisition Proposal or enter into any merger
agreement, letter of intent, agreement in principle, share purchase agreement,
asset purchase agreement or share exchange agreement, option agreement or other
similar agreement providing for or relating to an Acquisition Proposal or
consummate any such transaction or enter into any agreement or agreement in
principle requiring the Company to abandon, terminate or fail to consummate
the
Merger or resolve or agree to do any of the
foregoing. Notwithstanding the foregoing, the Company may continue to
take any of the actions described in clauses (i) and (ii) above from and after
the Go-Shop Period End Date with respect to any party that has made an
Acquisition Proposal after the date hereof which was received by the Company
prior to the Go-Shop Period End Date and with whom the Company is having ongoing
discussions or negotiations as of the Go-Shop Period End Date regarding an
Acquisition Proposal, in each case, to the extent the requirements of Section 7.03(c)(i)
can be satisfied on the Go-Shop Period End Date with respect to such Acquisition
Proposal (each such party, an “Excluded
Party”). Any determination by the Board that any Acquisition
Proposal received prior to the Go-Shop Period End Date initially meets the
requirements of Section 7.03(c)(i)
shall be made not later than one business day after the Go-Shop Period End
Date. Notwithstanding anything contained in this Section 7.03 to the
contrary, any Excluded Party shall cease to be an Excluded Party for all
purposes under this Agreement immediately at such time as the Acquisition
Proposal made by such party is withdrawn, is terminated or expires or fails
to
satisfy the requirements of Section
7.03(c)(i). The Company shall promptly notify Parent when an
Excluded Party ceases to be an Excluded Party. Subject to Section 7.03(c)(i),
at the Go-Shop Period End Date, other than with respect to Excluded Parties,
the
Company shall immediately cease and cause to be terminated any solicitation,
encouragement, discussion or negotiation with any Solicited Person conducted
theretofore by the Company or any of its Representatives with respect to any
Acquisition Proposal and use its (and will cause its Representatives to use
their) commercially reasonable efforts to cause to be returned or destroyed
all
confidential information provided or made available to such Solicited Person
on
behalf of the Company.
(c)
(i) Notwithstanding
anything to the contrary contained in Section 7.03(b),
if at any time following the Go-Shop Period End Date and prior to obtaining
the
Requisite
Stockholder Vote, (x) the Company has received a written Acquisition Proposal
from a third party that the Board believes in good faith to be bona fide and
(y)
the Board determines in good faith, after consultation with its outside
financial and legal advisors, that (1) such Acquisition Proposal constitutes
or
could reasonably be expected to result in a Superior Proposal and (2) the
failure to take the actions referred to in clauses (A) and (B) of this Section 7.03(c)(i)
would be inconsistent with the fulfillment of its fiduciary duties to the
stockholders of the Company under applicable Law, then the Company may
(A) furnish information with respect to the Company to the person making
such Acquisition Proposal and (B) participate in discussions or
negotiations with the person making such Acquisition Proposal regarding such
Acquisition Proposal; provided, that the
Company (x) shall not, and shall not allow any of its Representatives to,
disclose any material non-public information to such person without entering
into an Acceptable Confidentiality Agreement, and (y) will provide or make
available to Parent any material non-public information concerning the Company
provided to such other person which was not previously provided to Parent within
one business day after provision to such other person.
(ii) Notwithstanding
anything to the contrary contained in Section 7.03(b),
prior to obtaining the Requisite Stockholder Vote, the Company shall be
permitted to take the actions described in clauses (A) and (B) above
with respect to any Excluded Party so long as such Excluded Party continues
to
qualify as such.
(iii) No
later than the earlier of the second business day or the third calendar day
immediately following the Go-Shop Period End Date, the Company shall notify
Parent, in writing, of the identity of each Excluded Party and shall provide
Parent a copy of each Acquisition Proposal received from any Excluded Party
(or,
where no such copy is available, a description of the material terms and
conditions of such Acquisition Proposal). From and after the Go-Shop
Period End Date, the Company shall promptly (and in any event within one
business day) notify Parent in writing if it receives (or after it becomes
aware
that one of its Representatives has received) (A) an Acquisition Proposal from
a
person or group of related persons or written indication that such person or
group is considering making an Acquisition Proposal, including the material
terms and conditions thereof and the identity of the person making such
Acquisition Proposal, to the extent known, (B) any request by any person or
group of related persons for non-public information relating to the Company
other than requests in the ordinary course of business and reasonably believed
by the Company to be unrelated to an Acquisition Proposal or (C) any inquiry
or
request for discussions or negotiations regarding any Acquisition Proposal
by
any person or group of related persons, and shall keep
Parent apprised and shall promptly update Parent as to any material
developments, discussions and negotiations concerning such Acquisition
Proposal. Without limiting the foregoing, the Company shall inform
Parent in writing within one business day in the event that it determines to
begin providing information or engaging in discussions or negotiations
concerning an Acquisition Proposal pursuant to this Section
7.03.
(d) Neither
the Board nor any committee thereof shall directly or indirectly withdraw or
modify in a manner adverse to Parent or Merger Sub, or publicly propose to
withdraw or modify in a manner adverse to Parent or Merger Sub, its
recommendation in favor of the Merger; provided, that at
any
time prior to obtaining the Requisite Stockholder Vote, if the Company receives
an Acquisition Proposal (including from an Excluded Party) after
the
date
hereof and the Board concludes in good faith, after consultation with its
outside financial and legal advisors, that such Acquisition Proposal constitutes
a Superior Proposal and that the failure to withdraw or modify its approval
of
this Agreement or its recommendation that the Company’s stockholders adopt this
Agreement and approve the Merger would be inconsistent with the fulfillment
of
its fiduciary duties, the Board may (i) cause the Company to terminate this
Agreement pursuant to Section 9.01(g) to
concurrently enter into a definitive agreement with respect to such Superior
Proposal and/or (ii) withdraw or modify its approval of this Agreement or
its recommendation that the Company’s stockholders adopt this Agreement and
approve the Merger; provided, however,
that the
Company shall not terminate this Agreement pursuant to the foregoing clause
(i)
and any purported termination pursuant to the foregoing clause (i) shall be
void
and of no force and effect, unless concurrently with such termination the
Company pays the Termination Fee payable pursuant to Section 9.03; and
provided,
further,
that the
Company may not terminate this Agreement pursuant to the foregoing clause (i)
and the Board may not effect a withdrawal or modification of its approval of
this Agreement pursuant to the foregoing clause (ii) unless the Company
shall have provided prior written notice to Parent, at least four business
days in advance (the “Notice Period”), of
its intention to withdraw or modify its approval of this Agreement or terminate
this Agreement to enter into a definitive agreement with respect to such
Superior Proposal, which notice shall include a written summary of the material
terms and conditions of such Superior Proposal (including the identity of the
party making such Superior Proposal), and shall have contemporaneously provided
a copy of the relevant proposed transaction agreements with the party making
such Superior Proposal and any other material documents relating
thereto. During the Notice Period, the Company shall, and shall cause
its Representatives to, negotiate with Parent and Merger Sub in good faith
(to
the extent Parent and Merger Sub desire to negotiate) to make such adjustments
in the terms and conditions of this Agreement, and the Board shall take into
account any changes to the financial and other terms of this Agreement proposed
by Parent in response to any such written notice by the Company or otherwise,
so
that the Acquisition Proposal ceases to constitute a Superior Proposal (it
being
understood and agreed that any amendment to the financial terms or other
material terms of such Superior Proposal shall require a new written notice
by
the Company and a new four-business day period).
(e) Notwithstanding
anything to the contrary contained in this Section 7.03 or
elsewhere in this Agreement, the Board may, prior to obtaining the Requisite
Stockholder Vote and other than in connection with an Acquisition Proposal
(which is subject to Section 7.03(d)),
withdraw or modify its approval of this Agreement or its recommendation that
the
Company’s stockholders adopt this Agreement and approve the Merger, if the Board
determines in good faith (after consultation with its outside legal advisors)
that the failure to take such action would be inconsistent with the fulfillment
of its fiduciary duties under applicable Law.
(f) Subject
to this Section
7.03, the Company shall not terminate, waive, amend or modify any
material provision of any standstill or confidentiality agreement to which
it is
a party (including each Acceptable Confidentiality Agreement) that relates
to a
transaction of a type described in the definition of Acquisition Proposal;
provided, however¸
that
the
Company may permit to be taken any of the actions prohibited under a standstill
agreement if the Board determines in good faith, after consultation with outside
counsel, that failure to take such action would be inconsistent with the
fulfillment of its fiduciary duties to the stockholders of the Company under
applicable Law; provided, further,
however,
that,
notwithstanding the
foregoing,
(i) this Section
7.03(f) shall in no way prohibit the taking of any action by the Board,
the Company or any of its Representatives with respect to any party to a
standstill agreement that is not otherwise prohibited by this Section 7.03 and (ii)
the Company shall not be deemed to be in violation of this Section 7.03(f) if a
party to a standstill agreement submits an unsolicited Acquisition Proposal
to
the Board. To the extent that prior to the date hereof the Company
has entered into any confidentiality agreement that would prevent the Company
from providing information to Parent that the Company would otherwise be
required to provide to Parent pursuant to the terms of Section 7.02 or 7.03,
the Company
shall use its commercially reasonable efforts to obtain a waiver of such
confidentiality or standstill agreement to enable the Company to provide such
information to Parent in accordance with the terms of Sections 7.02 and
7.03;
provided,
however,
that, so
long as the Company has used such commercially reasonable efforts, the failure
of the Company to obtain any such waiver and any resulting inability to provide
any such information to Parent shall not cause the Company to be in breach
of
any of the provisions of Sections 7.02 and
7.03.
(g) Nothing
contained in this Section 7.03 or
elsewhere in this Agreement shall prohibit the Company from taking and
disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule
14e-2(a) promulgated under the Exchange Act or from otherwise making any
disclosure to its stockholders that is required by applicable Law.
SECTION
7.04 Directors’
and Officers’
Indemnification.
(a) From
and after the Effective Time, the Surviving Corporation shall indemnify and
hold
harmless each present and former director and officer of the Company
(collectively, the “Indemnified Parties”)
(and the Surviving Corporation shall also advance expenses to such persons
as
incurred, provided that the
person to whom expenses are advanced provides an undertaking to repay such
advances if it is ultimately determined that such person is not entitled to
indemnification) against any and all costs, expenses (including reasonable
attorneys’ fees), judgments, fines, losses, claims, damages and liabilities
incurred in connection with any Action, whether civil, criminal, administrative
or investigative, arising out of or pertaining to any action or omission or
matters existing or occurring at or prior to the Effective Time, including
the
Transactions, in each case to the same extent as provided in the articles of
incorporation or bylaws of the Company, or any other applicable contract with
respect to the relevant director or officer, in each such case as in effect
on
the date hereof and disclosed to Parent in Section 7.04(a) of
the Company Disclosure Letter.
(b) For
six years from the Effective Time, the Surviving Corporation shall maintain
in
effect for the benefit of the directors and officers of the Company currently
covered by the officers’ and directors’ liability insurance policies of the
Company an insurance and indemnification policy with an insurer with a Standard
& Poor’s rating of at least A that provides coverage for acts or omissions
occurring on or prior to the Effective Time (the “D&O Insurance”)
covering each such person on terms with respect to coverage and in amounts
no
less favorable than those of the Company’s directors’ and officers’ insurance
policy in effect on the date of this Agreement, other than immaterial
differences; provided, however,
that the
Surviving Corporation shall not be required to pay an annual premium for the
D&O Insurance in excess of 300% of the annual premium
currently paid by the Company for such coverage; provided, further,
that if the
annual premiums for such insurance coverage exceed 300% of such
annual
premium,
the Surviving Corporation shall obtain a policy with the greatest coverage
available for a cost not exceeding such amount. The Surviving
Corporation may satisfy its obligations under this Section 7.04(b) by
purchasing a “tail” policy from an insurer with a Standard & Poor’s rating
of at least A or under the Company’s existing directors’ and officers’ insurance
policy, that in either such case (i) has an effective term of six years from
the
Effective Time, (ii) covers each director and officer currently covered by
the
Company’s directors’ and officers’ insurance policy in effect on the
date of this Agreement for actions and omissions occurring on or prior to the
Effective Time, and (iii) contains terms that are no less favorable than those
of the Company’s directors’ and officers’ insurance policy in effect on the date
of this Agreement, other than immaterial differences.
(c) The
articles of incorporation and bylaws of the Surviving Corporation shall contain
provisions no less favorable with respect to indemnification than are set forth
in the articles of incorporation and bylaws, respectively, of the Company,
unless any modification thereof shall be required by Law and then such
modification shall be made only to the minimum extent required by such Law,
which provisions shall not be amended, repealed or otherwise modified, except
as
provided in this Section
7.04(c), for a period of six years from the Effective Time in
any manner that would affect adversely the rights thereunder of individuals
who,
at or prior to the Effective Time, were directors or officers of the
Company.
(d) The
provisions of this Section 7.04 are
intended to be for the benefit of, and will be enforceable by, each Indemnified
Party, his or her heirs and his or her representatives and are in addition
to,
and not in substitution for, any other rights to indemnification or contribution
that any such person may have by contract or otherwise.
(e) Notwithstanding
anything herein to the contrary, if any claim, action, suit, proceeding or
investigation (whether arising before, at or after the Effective Time) is made
against any Indemnified Party or any other party covered by directors’ and
officers’ liability insurance, on or prior to the sixth anniversary of the
Effective Time, the provisions of this Section 7.04
shall continue in effect until the final disposition of such claim, action,
suit, proceeding or investigation.
(f) If
the Surviving Corporation or any of its successors or assigns
(i) consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger
or
(ii) transfers all or substantially all of its properties and assets to any
person, then, and in each such case, proper provision shall be made so that
the
successors and assigns of the Surviving Corporation shall assume the obligations
set forth in this Section 7.04.
SECTION
7.05 Regulatory
Filings;
Commercially Reasonable Efforts.
(a) As
soon as reasonably practicable following the execution of this Agreement, the
Company, on the one hand, and Parent and Merger Sub, on the other hand, each
shall file with the U.S. Federal Trade Commission (the “FTC”) and the
Antitrust Division of the U.S. Department of Justice (the “DOJ”) Notification
and Report Forms relating to the Transactions as required by the HSR Act and
will use commercially reasonable efforts to obtain an early termination of
any
applicable waiting period thereunder; provided, however,
that
the
parties
shall not be required to file such Notification and Report Forms until the
second business day after the Go-Shop Period End Date unless Parent shall elect
otherwise and notify the Company at least 10 days prior to filing. The Company,
on the one hand, and Parent and Merger Sub, on the other hand, each shall
promptly (i) supply the other party with any information which may be
required in order to effectuate such filing and (ii) supply any additional
information which reasonably may be required by the FTC or the DOJ in connection
with such filing. Each of the Company, on the one hand, and Parent and Merger
Sub, on the other hand, will notify the other party promptly upon the receipt
of
(i) any comments from any officials of the FTC or the DOJ in connection
with any filing made pursuant hereto and (ii) any request by any officials
of the FTC or the DOJ for amendments or supplements to any filing made pursuant
to, or information provided to comply with, the requirements of the HSR Act.
Whenever any event occurs that is required to be set forth in an amendment
or
supplement to any filing made pursuant to this Section 7.05(a),
the Company, on the one hand, and Parent and Merger Sub, on the other hand,
as
the case may be, will promptly inform the other party of such occurrence and
cooperate in filing such amendment or supplement. The parties hereto
will consult and cooperate with one another, and consider in good faith the
views of one another, in connection with, and provide to the other parties’
counsel in advance, any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on behalf of any
party
hereto in connection with any Action under or relating to the HSR Act. The
parties may designate any such documents “outside counsel only” and if so
designated, such documents may not be disclosed to the other party.
(b) Subject
to the terms and conditions herein provided, each party agrees to use its
commercially reasonable efforts to take, or cause to be taken, all actions
and
to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective as promptly as practicable the Transactions,
including obtaining all consents, authorizations and approvals from Governmental
Authorities and other third parties required for the consummation of the
Transactions. Upon the terms and subject to the conditions hereof, each party
agrees to use its commercially reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary to satisfy
the
conditions to the consummation of the Transactions to be satisfied by
it.
SECTION
7.06 Public
Announcements. Parent and the Company agree that no public
release or announcement concerning the Transactions or the Merger shall be
issued by either party without the prior consent of the other party (which
consent shall not be unreasonably withheld), except as such release or
announcement may be required by Law or the rules or regulations of any
securities exchange, in which case the party required to make the release or
announcement shall use its commercially reasonable efforts to allow the other
party reasonable time to comment on such release or announcement in advance
of
such issuance; provided, however,
that each of
Parent and the Company may make any public statement in response to specific
questions by the press, analysts, investors or those attending industry
conferences or financial analyst conference calls, so long as any such
statements are not inconsistent with previous public releases or announcements
made by Parent or the Company in compliance with this Section 7.06 and do
not reveal non-public information regarding the other party; provided, further,
however,
that the
Company may issue any public release or announcement, without prior consultation
with Parent, contemplated by, or with respect to any action taken pursuant
to,
Section
7.03.
SECTION
7.07 Confidentiality
Agreement. At the Effective Time, the Confidentiality
Agreement shall be deemed to have terminated without further action by the
parties thereto. If this Agreement is terminated, each party shall
return to the other party or destroy any documents furnished by the other party
and all copies thereof any of them may have made and will hold in confidence
any
information obtained from the other party except to the extent (a) such
party is required to retain or disclose such information by applicable Law
or
such retention or disclosure is necessary in connection with the pursuit or
defense of a claim or (b) such information becomes generally available to
the public other than by breach of this Section
7.07. Prior to any disclosure of information pursuant to the
exception in clause (a) of the preceding sentence, the party intending to
disclose such information shall so notify the party that provided such
information in order that such party may seek a protective order or other
appropriate remedy should it choose to do so.
SECTION
7.08 Benefit
Plans and Employee
Matters.
(a) Parent
hereby agrees that, for a period of one year immediately following the Effective
Time, it shall, or it shall cause the Surviving Corporation or any applicable
Financing Subsidiary to, (i) provide each Employee of the Company as of the
Effective Time with at least the same level of base salary, cash incentive
compensation and other cash variable compensation that was provided to each
such
Employee immediately prior to the Effective Time, and (ii) provide the Employees
with employee benefits (other than equity-based compensation) that are no less
favorable, determined in the aggregate on a Plan-by-Plan basis, than those
provided to such Employees immediately prior to the Effective
Time. From and after the Effective Time, Parent shall cause the
Surviving Corporation or any applicable Financing Subsidiary to honor, in
accordance with their terms, all contracts, agreements, arrangements, policies,
plans and commitments of the Company as in effect immediately prior to the
Effective Time that are applicable to any current or former Employees or
directors of the Company.
(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 (including vacation plans,
programs and arrangements) 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 for service with
the Company and any ERISA Affiliate through the Effective Time to the same
extent recognized by the Company and any ERISA Affiliate under comparable Plans
immediately prior to the Effective Time. 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 and any ERISA Affiliate; 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, the Surviving Corporation or any
applicable Financing Subsidiary (“Parent Welfare Benefit
Plans”) in which an Employee may be eligible to participate on or after
the Effective Time, Parent shall use commercially reasonable efforts, subject
to
applicable Law, to (a) waive, or 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 Employee under any Parent Welfare
Benefit Plan to the same extent waived under a comparable Plan, and (b) provide
credit to each Employee for any co-payments, deductibles and out-of-pocket
expenses paid by such Employee under the Plans during the relevant plan year,
up
to and including the Effective Time.
(d) From
and after the Effective Time, the Surviving Corporation or any applicable
Financing Subsidiary shall, and Parent shall cause them to, honor, in accordance
with their terms, all employment and severance agreements listed in Section 7.08(d) of
the Company Disclosure Letter in effect immediately prior to the Effective
Time
that are applicable to any current or former Employees or directors of the
Company.
SECTION
7.09 Advice
of
Changes. The Company shall promptly advise Parent of any
change or event (A) having or that would be reasonably expected to have a
Material Adverse Effect or (B) that constitutes a breach of any of its
representations, warranties or covenants contained in this Agreement that would
reasonably be expected to result in a failure of a condition set forth in Section 8.02(a) or
8.02(b);
provided, that
no such
notification shall affect the representations, warranties, covenants or
agreements of the Company (or remedies with respect thereto) or the conditions
to the obligations of the parties under this Agreement.
SECTION
7.10 Financing.
(a) Parent
shall use commercially reasonable efforts to take, or cause Merger Sub to take,
all actions and to do, or cause Merger Sub to do, all things reasonably
necessary, proper or advisable to arrange, as soon as practicable after the
date
hereof, and to consummate, concurrently with the Closing, the Financing on
the
terms and conditions described in the Financing Commitments, including using
commercially reasonable efforts to (i) maintain in effect the Financing
Commitments, (ii) satisfy on a timely basis all conditions applicable to
Parent and Merger Sub to obtaining the Financing set forth in the Financing
Commitments that are within their control (including by consummating the Equity
Financing pursuant to the terms of the Equity Financing Commitments and by
assisting in the syndication or marketing of the Debt Financing contemplated
by
the Debt Financing Commitments) and (iii) enter into definitive agreements
with respect thereto on the terms and conditions contemplated by the Financing
Commitments. Subject to the terms and conditions contained herein, at the
Closing Parent shall draw down on the Financing Commitments if the conditions
to
the Financing Commitments are then satisfied. If any portion of the Financing
becomes unavailable on the terms and conditions contemplated in the Financing
Commitments, Parent shall use commercially reasonable efforts to arrange to
obtain alternative financing from alternative sources on terms not materially
less beneficial to Parent and Merger Sub (as determined in the reasonable
judgment of Parent) in an amount sufficient to make the Required Payments.
Parent shall keep the Company reasonably apprised of material developments
related to the Financing and shall provide to the Company (i) a copy of each
material agreement related to the Financing promptly after such agreement is
executed and delivered by the parties thereto and (ii) such other information
as
the Company may reasonably request in connection with the
Financing. For the avoidance of doubt, if the conditions set forth in
Sections 8.01
and 8.02 of
this Agreement are satisfied or waived, Parent and Merger Sub shall be obligated
to consummate the Transactions on the terms contemplated by this Agreement
regardless of whether the Equity Financing has been or can be
obtained.
(b) The
Company agrees to provide, and shall cause its officers, directors, employees,
financial advisors, counsel, accountants and other representatives and
Affiliates to provide, all cooperation reasonably requested by Parent in
connection with the arrangement of the Financing, including, without limitation,
organizing certain new direct or indirect subsidiaries of the Company (the
“Financing
Subsidiaries”) and transferring thereto (the “Contribution”)
certain assets and property of the Company (the “Contributed Assets”),
and using its commercially reasonable efforts to obtain any required consents
from the counterparties of certain contracts to the assignment of such contracts
to the applicable Financing Subsidiary, in each case as specified in the Debt
Financing Commitment. Without limiting the generality of the
foregoing, the Company and the Financing Subsidiaries (as applicable) shall
comply with the covenants applicable to any of them set forth in, and shall
use
commercially reasonable efforts to cause to be satisfied all conditions to
the
obligations of Parent’s lenders to fund the Debt Financing set forth in, the
Debt Financing Commitment, including, without limitation, the Debt Term Sheet,
each as in effect as of the date hereof or as amended with the consent of the
Company (not to be unreasonably withheld, delayed or
conditioned). The Company hereby consents to the reasonable use of
its logos (without granting to any person any right, title or interest therein
except for the limited rights expressly provided in this sentence) in connection
with the Financing so long as such logos are used solely in a manner that is
not
intended to nor reasonably likely to harm or disparage the Company or the
reputation or goodwill of the Company or any of its marks or other Intellectual
Property. Prior to executing or filing any agreement, organizational
document or other document in connection with the Contribution, the Company
shall give Parent and its counsel a reasonable opportunity to review and
reasonably approve the form of any such agreement, organizational document
or
other document prepared in connection with the Contribution. If any
portion of the Financing becomes unavailable on the terms and conditions
contemplated in the Financing Commitments, the Company shall provide such
cooperation as may be reasonably requested by Parent and Merger Sub necessary
for them to obtain alternative financing from alternative sources.
(c) At
the request of Parent given at any time prior to the expiration of five business
days after the execution and delivery of this Agreement, the Company will
purchase an option, at a cost not to exceed $8,000,000, to enter into a pay
fixed rate swap (the “Swap Option”) that
grants the Company the right (but not the obligation) to enter into a pay fixed
swap at the Effective Time with respect to amounts to be borrowed under the
Debt
Financing. If Parent has not made such request to the Company by
10:00 a.m. Eastern Time on a business day, then the Company may purchase the
Swap Option on the next business day. Upon any Termination Date (as
defined below), Parent will reimburse the Company for the premium paid to the
counterparty to the Swap Option (plus all interest accrued under the Credit
Agreement, dated as of May 27, 2005, as amended, among the Company, each lender
from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, with respect to any amounts borrowed
thereunder by the Company to finance the payment of such premium) and, upon
such
reimbursement, the Company will assign the Swap Option to Parent without
recourse for no further charge or cost to Parent; provided, however,
that,
notwithstanding anything to the contrary contained herein, such reimbursement
by
Parent to the Company shall be in addition to amounts, if any, that Parent
shall
be obligated to pay to the Company pursuant to Section 9.02(ii) or
Section
9.03(c). If the Swap Option may not be so assigned for any
reason, the Company will, following reimbursement by Parent, (i) hold the Swap
Option in trust for the benefit of Parent, (ii) account to Parent with respect
to all proceeds realized
from the sale or other disposition or exercise of the Swap Option and (iii)
deal
with the Swap Option in accordance with the instructions received from Parent
from time to time in writing.
ARTICLE
VIII
CONDITIONS
TO THE MERGER
SECTION
8.01 Conditions
to the
Merger. The obligations of each party to consummate the Merger
shall be subject to the satisfaction or waiver (where permissible), at or prior
to the Effective Time, of the following conditions:
(a) Stockholder
Approval. This Agreement shall have been adopted and, to the
extent required, the Transactions shall have been approved by the Requisite
Stockholder Vote in accordance with the FBCA and the governing documents of
the
Company.
(b) HSR
Act. The applicable waiting period under the HSR Act shall
have expired or been terminated.
(c) No
Order. No Governmental Authority in the United States shall
have enacted, issued, promulgated, enforced or entered any Law or Order (whether
temporary, preliminary or permanent) that is then in effect and has the effect
of making the Merger illegal or otherwise preventing or prohibiting consummation
of the Merger.
SECTION
8.02 Conditions
to the
Obligations of Parent and Merger Sub. The obligations of
Parent and Merger Sub to consummate the Merger are subject to the satisfaction
or waiver (where permissible), at or prior to the Effective Time, of the
following additional conditions at or prior to the Effective Time:
(a) Representations
and
Warranties. The representations and warranties of the Company
contained in this Agreement shall be true and correct as of the date of this
Agreement and as of the Effective Time as though made at and as of the Effective
Time (except for the representations and warranties that address matters only
as
of a particular date, which shall remain true and correct as of such date),
except where the failure to be so true and correct would not reasonably be
expected to have a Material Adverse Effect (it being understood that, for
purposes of determining the accuracy of such representations and warranties,
all
materiality and “Material Adverse Effect” qualifications and exceptions
contained in such representations and warranties shall be
disregarded).
(b) Agreements
and
Covenants. The Company shall have performed, in all material
respects, all obligations and complied with, in all material respects, its
agreements and covenants to be performed or complied with by it under this
Agreement on or prior to the Effective Time.
(c) Officer
Certificate. The Company shall have delivered to Parent a
certificate, dated the date of the Closing, signed by any executive officer
of
the Company, certifying in such capacity but not as an individual as to the
satisfaction of the conditions specified in Sections 8.02(a)
and 8.02(b).
(d) Maximum
Dissenting
Shares. The holders of not more than 10% of the Company Common
Stock outstanding immediately prior to the Effective Time shall have properly
exercised appraisal rights with respect thereto to the extent available under,
and in accordance with, applicable Law.
(e) Debt
Financing
Commitment. The conditions set forth in the Debt Financing
Commitment under the heading “Conditions” and in Annex II thereof shall have
been satisfied or waived.
(f) Holdback
Amount. No portion of the Senior Holdback Amount or the
Subordinated Holdback Amount shall be required to be held in a collateral
account by the Indenture Trustee (as such terms are defined in the Debt
Financing Commitment as in effect as of the date hereof) as of the Effective
Time.
SECTION
8.03 Conditions
to the
Obligations of the Company. The obligations of the Company to
consummate the Merger are subject to the satisfaction or waiver (where
permissible) of the following additional conditions, at or prior to the
Effective Time:
(a) Representations
and
Warranties. The representations and warranties of Parent and
Merger Sub contained in this Agreement shall be true and correct in all material
respects as of the Effective Time, as though made at and as of the Effective
Time, provided,
that the representations and warranties that address matters only as of a
particular date shall remain true and correct in all respects as of such
date.
(b) Agreements
and
Covenants. Parent and Merger Sub shall have performed, in all
material respects, all obligations or complied with, in all material respects,
all agreements and covenants to be performed or complied with by them under
this
Agreement on or prior to the Effective Time.
(c) Officer
Certificate. Parent shall have delivered to the Company a
certificate, dated the date of the Closing, signed by any executive officer
of
Parent, certifying in such capacity but not as an individual as to the
satisfaction of the conditions specified in Sections 8.03(a) and
8.03(b).
(d) Merger
Consideration. Parent shall have deposited with the Paying
Agent, for the benefit of the holders of the Shares, cash in an amount
sufficient to pay the aggregate Merger Consideration required to be paid
pursuant to Section
3.01(a).
ARTICLE
IX
TERMINATION,
AMENDMENT AND WAIVER
SECTION
9.01 Termination. This
Agreement may be terminated and the Merger and the other Transactions may be
abandoned at any time prior to the Effective Time, notwithstanding any requisite
approval and adoption of this Agreement and the Merger (the date of any such
termination, the “Termination Date”) as
follows:
(a) By
mutual written consent of each of Parent, Merger Sub and the Company duly
authorized by the Boards of Directors of Parent, Merger Sub and the Company;
or
(b) By
either Parent, Merger Sub or the Company, by written notice (which notice may
be
delivered no earlier than the day following the Outside Date), if the Effective
Time shall not have occurred on or before May 31, 2008 (the “Outside Date”); provided,
however,
that, if the
Deadline (as defined in the Debt Financing Commitment) is extended, the Outside
Date shall be extended to the same date without any further action of the
parties; provided, further,
however,
that the
right to terminate this Agreement under this Section 9.01(b)
shall not be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the failure of
the
Merger to be consummated on or before the Outside Date; or
(c) By
either Parent, Merger Sub or the Company, by written notice, if any Governmental
Authority shall have enacted, issued, promulgated, enforced or entered any
Order
or applicable Law that is, in each case, then in effect and is final and
nonappealable and has the effect of preventing or prohibiting the consummation
of the Merger; provided, however,
that the
right to terminate this Agreement under this Section 9.01(c) shall
not be available to any party whose failure to fulfill any obligation under
this
Agreement has been the cause of, or resulted in, any such Order to have been
enacted, issued, promulgated, enforced or entered; or
(d) By
written notice of Parent or Merger Sub if any of the following actions or events
occur and whether or not they are permitted by the terms hereof:
(i) the
Board withdraws, amends, modifies or changes its recommendation of the adoption
of this Agreement in a manner adverse to Parent or Merger Sub or shall have
resolved or publicly proposed to do so,
(ii) the
Board shall have recommended to the stockholders of the Company an Acquisition
Proposal or shall have resolved or publicly proposed to do so or shall have
entered into any letter of intent or similar document or any contract accepting
any Acquisition Proposal,
(iii) the
Company fails publicly to reaffirm its recommendation of the Merger within
seven
(7) business days after the date any Acquisition Proposal or any material
modification thereto is first publicly announced or otherwise becomes generally
known to the public, or
(iv) the
Company shall have materially breached its obligations under Section
7.03.
(e) By
written notice of Parent or Merger Sub (if Parent is not in material breach
of
its obligations or its representations and warranties under this Agreement),
if
there has been a breach by the Company of any representation, warranty, covenant
or agreement contained in this Agreement, or if any representation or warranty
of the Company shall have become untrue, in either case that would result in
a
failure of a condition set forth in Section 8.02(a) or
8.02(b)
(a
“Terminating Company
Breach”); provided, that
if such
Terminating Company Breach is reasonably curable by the Company within 20 days
after the occurrence of such
Terminating Company Breach through the exercise of its commercially reasonable
efforts and for as long as the Company continues to exercise such commercially
reasonable efforts, Parent may not terminate this Agreement under this Section 9.01(e) until
the earlier of the expiration of such 20-day period and the Outside
Date;
(f) By
written notice of the Company (if the Company is not in material breach of
its
obligations or its representations and warranties under this Agreement), if
there has been a breach by Parent of any representation, warranty, covenant
or
agreement contained in this Agreement, or if any representation or warranty
of
Parent shall have become untrue, in either case that would result in a failure
of a condition set forth in Section 8.03(a) or
8.03(b)
(a
“Terminating Parent
Breach”); provided, that
if such
Terminating Parent Breach is reasonably curable by Parent within 20 days of
the
occurrence of such Terminating Parent Breach through the exercise of its
commercially reasonable efforts and for as long as Parent continues to exercise
such commercially reasonable efforts, the Company may not terminate this
Agreement under this Section 9.01(f) until
the earlier of the expiration of such 20-day period and the Outside Date;
or
(g) By
written notice of the Company in accordance with Section 7.03(d),
if the Company shall have concurrently entered into a definitive agreement
with
respect to a Superior Proposal and paid the Termination Fee set forth in Section
9.03(b);
(h) By
written notice of the Company if (i) (x) Parent shall have notified the Company
that the Debt Financing cannot be consummated for any reason; provided, that Parent
shall be obligated to give such notice to the Company within one business day
after it makes such determination that the Debt Financing cannot be consummated
and in no event later than the Outside Date, and (y) Parent has not secured
commitments for alternative financing (as contemplated by Section 7.10) in an
amount sufficient to make the Required Payments by no later than the earlier
of
30 days after the date of such notice and the Outside Date; or (ii) the Debt
Financing or any alternative financing contemplated by clause (y) above is
not
consummated by the Outside Date and, in the case of either clause (i) or (ii),
such failure is either primarily caused by, or primarily results from, (A)
any
breach of Section
7.10 by Parent, Merger Sub, any of their respective Affiliates or any of
their or their respective Affiliates’ Representatives, (B) the breach by any
lender of its obligation to provide all or any part of the Debt Financing (it
being understood that no such breach can occur unless all conditions set forth
in the Debt Financing Commitment shall have been satisfied or have been waived
by the relevant lenders) or (C) the failure of all or any part of the Equity
Financing (or any substitute or replacement equity financing) to be obtained,
other than due to the failure of any condition set forth in Sections 8.01 and
8.02
(other
than the condition set forth in Section 8.02(e) to
the extent the failure of such condition is due to the failure of any such
equity financing to be obtained);
(i) By
written notice of Parent, Merger Sub or the Company, if, at the Special Meeting
(including any adjournment thereof), the Requisite Stockholder Vote is not
obtained.
SECTION
9.02 Effect
of
Termination. In the event of the termination of this Agreement
pursuant to Section 9.01,
this Agreement shall forthwith become void, and there shall be no liability
on
the part of any party hereto or any of their respective Affiliates or the
directors, officers,
employees, agents or Representatives of any of them, and all rights and
obligations of each party hereto shall cease, except (i) as set forth in
Section 7.10(c), this
Section 9.02
and in Section 9.03 and
Article
X; (ii)
in the case of a termination of this Agreement pursuant to Section 9.01(e) or
9.01(f)
arising
out of an inaccuracy in any representation as of the date hereof or a breach
of
any warranty or covenant, the breaching party shall reimburse the terminating
party for its reasonable, documented Transaction Costs, up to a maximum amount
of $5,000,000 (the “Expense Reimbursement
Amount”), within ten (10) business days of receipt of a reasonably
detailed accounting of such expenses, and the breaching party will not have
any
other liability hereunder except as provided in clause (iii) or in Section 9.03; and
(iii) in the case of a willful breach of any representation, warranty or
covenant, the parties hereto acknowledge and agree that the damages suffered
or
to be suffered by the Company, in the case of a willful breach of this Agreement
by Parent or Merger Sub, or by Parent and Merger Sub, in the case of a willful
breach of this Agreement by the Company, shall not be limited to the Expense
Reimbursement Amount and may include the benefit of the bargain of the Merger
to
such party (and, in the case of the Company, its stockholders), adjusted
to
account for the time value of money. Without limiting the foregoing,
Sections
7.02(b), 7.06,
7.07,
this Section 9.02, Section
9.03 and
Article
X shall
survive the termination of this Agreement. Notwithstanding anything
to the contrary contained in this Agreement, but subject to Section 9.03, nothing
shall limit or prevent any party from exercising any rights or remedies it
may
have under Section
10.06 hereof in lieu of terminating this Agreement pursuant to Section
9.01.
SECTION
9.03 Fees
and
Expenses.
(a) Except
as otherwise set forth in this Section 9.03, all
Transaction Costs incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such expenses, whether or
not
any of the Transactions is consummated. As used in this Agreement,
“Transaction
Costs” shall include all out-of-pocket expenses (including all fees and
expenses of counsel, accountants, investment bankers, financing sources, experts
and consultants to a party hereto and its Affiliates) incurred by a party or
on
its behalf in connection with or related to the authorization, preparation,
negotiation, execution or performance of this Agreement, the preparation,
printing, filing or mailing of the Proxy Statement, the solicitation of
stockholder approvals and all other matters related to the consummation of
the
Transactions, and including any reimbursement by Parent pursuant to Section
7.10(c).
(b) The
Company agrees that if this Agreement shall be terminated by
(i) Parent
or Merger Sub pursuant to Section 9.01(d) (if
Parent or Merger Sub is not then in material breach of any of its obligations,
representations or warranties under this Agreement),
(ii) the
Company pursuant to Section 9.01(g),
or
(iii) Parent
or Merger Sub (I) (x) pursuant to Section 9.01(b) and,
at any time after the date of this Agreement but prior to the Outside Date,
an
Acquisition Proposal shall have been publicly disclosed or otherwise become
generally known to the public or communicated to the senior management or the
Board of the Company and not withdrawn or terminated, or (y) pursuant to Section 9.01(e) and,
at any time after the date of this Agreement
and
prior
to the Terminating Company Breach giving rise to the right of Parent or Merger
Sub to terminate this Agreement, an Acquisition Proposal shall have been
publicly disclosed or otherwise become generally known to the public or
communicated to the senior management or the Board of the Company and not
withdrawn or terminated or (z) pursuant to Section 9.01(i) and,
at any time after the date of this Agreement and prior to the vote of the
Company’s stockholders seeking approval of the Merger at the Special Meeting, an
Acquisition Proposal shall have been publicly disclosed or otherwise become
generally known to the public and not withdrawn or terminated, and (II), in
any
of cases (x), (y) and (z), within nine (9) months after the date of such
termination, the Company enters into a definitive agreement with respect to
or
consummates an Acquisition Proposal (whether or not such Acquisition Proposal
was made prior to termination of this Agreement or by the same person); provided that for
the
purposes of this Section 9.03(b)(iii)
the term “Acquisition Proposal” shall have the meaning assigned to such term in
Section 1.01, except that the references to “20%” shall be deemed to be
references to “more than 50%”:
then
the
Company shall pay Parent the Termination Fee in immediately available funds
(x) within two business days after the Termination Date, in the case of
clause (i), (y) concurrently with such termination, in the case of clause (ii)
and (z) upon the earlier of entry into the definitive agreement with respect
to,
or consummation of, the Acquisition Proposal, in the case of clause (iii) (in
the case of Section
9.03(b)(iii)(I)(y), with a credit for any Expense Reimbursement Amount
previously paid as provided in Section
9.02(ii)). If this Agreement shall be terminated by Parent or
Merger Sub pursuant to Section 9.01(i) but
the other conditions set forth in Section 9.03(b)(iii)
for payment of the Termination Fee have not yet been satisfied, then the Company
shall reimburse Parent for its reasonable, documented Transaction Costs, up
to a
maximum amount of $5,000,000, within ten (10) business days of receipt of a
reasonably detailed accounting of such expenses, and, if such conditions are
later satisfied, the Termination Fee shall be payable net of such Transaction
Costs previously paid. “Termination Fee”
means $20,000,000;
provided,
however,
that “Termination Fee”
shall mean
$15,000,000 if the Acquisition Proposal that results in the action or
event that forms the basis for such termination is submitted by an Excluded
Party (whether such Acquisition Proposal is submitted before or after the
Go-Shop Period End Date) and the right to terminate this Agreement arises no
later than March 29, 2008; provided, that, in
any event, the Termination Fee shall be reduced by any Expense Reimbursement
Amount paid pursuant to Section
9.02. In no event shall payment of more than one Termination
Fee be made. Notwithstanding anything to the contrary contained in
this Agreement: (i) Parent’s right to receive the Termination Fee or
Transaction Costs pursuant to this Section 9.03(b) shall
be Parent’s sole and exclusive remedy against the Company or any of its
Affiliates, stockholders, directors, officers, Employees, agents or
Representatives for any loss, claim, damage, liability or expense suffered
as a
result of the failure of any of the Transactions to be consummated in
circumstances giving rise to the obligation of the Company to pay the
Termination Fee or Transaction Costs under this Section 9.03(b);
(ii) the provisions of Section 10.06
shall be inapplicable in any circumstance giving rise to the obligation of
the
Company to pay the Termination Fee or Transaction Costs; and (iii) upon payment
of all amounts that are required to be paid pursuant to this Section 9.03(b), none
of the Company or any of its Affiliates, stockholders, directors, officers,
Employees, agents or Representatives shall have any further liability or
obligation relating to or arising out of this Agreement or the Transactions
(other than any obligation to pay any amounts due pursuant to the second
sentence of Section 9.03(d)).
(c) Parent
agrees that if this Agreement shall be terminated by the Company pursuant to
Section
9.01(h), then Parent shall pay the Company the Reverse Termination Fee in
immediately available funds within two business days after the Termination
Date. “Reverse Termination
Fee” means $15,000,000. Notwithstanding anything to the
contrary contained in this Agreement, but other than the reimbursement set
forth
in Section
7.10(c): (i) the Company’s right to receive the Reverse
Termination Fee pursuant to this Section 9.03(c) shall
be the Company’s sole and exclusive remedy against Parent, Merger Sub or any of
their Affiliates, stockholders, directors, officers, employees, agents or
Representatives for any loss, claim, damage, liability or expense suffered
as a
result of the failure of any of the Transactions to be consummated in
circumstances giving rise to the obligation of Parent to pay the Reverse
Termination Fee under this Section 9.03(c); (ii)
the provisions of Section 10.06 shall
be inapplicable in any circumstance giving rise to the obligation of Parent
to
pay the Reverse Termination Fee; and (iii) upon payment of the Reverse
Termination Fee that is required to be paid pursuant to this Section 9.03(c), none
of Parent, Merger Sub or any of their Affiliates, stockholders, directors,
officers, employees, agents or Representatives shall have any further liability
or obligation relating to or arising out of this Agreement or the Transactions
(other than any obligation to pay any amounts due pursuant to the second
sentence of Section 9.03(d)).
(d) The
parties acknowledge that the agreements contained in this Section 9.03 are
an integral part of the transactions contemplated by this Agreement and that
without these agreements, the other party would not enter into this
Agreement. If a party shall fail to pay any amount payable pursuant
to Section
9.02(ii) or 9.03,
as applicable,
when due, the party failing to pay shall reimburse the other party for all
costs
and expenses actually incurred or accrued by such party (including reasonable
fees and expenses of counsel) in connection with the collection under and
enforcement of such Section.
SECTION
9.04 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, that,
after the
adoption of this Agreement by the stockholders of the Company, no amendment
may
be made that would reduce the amount or change the type of consideration into
which each Share shall be converted upon consummation of the Merger or that
would otherwise by Law require approval of the stockholders of the Company,
without approval of such stockholders. This Agreement may only be
amended pursuant to a written agreement signed by each of the parties
hereto.
SECTION
9.05 Waiver. At
any time prior to the Effective Time, any party hereto may in its sole
discretion (i) extend the time for the performance of any obligation or
other act of any other party hereto, (ii) waive any inaccuracy in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any agreement or condition
contained herein. Any such extension or waiver shall be valid only if
set forth in an instrument in writing signed by the party or parties to be
bound
thereby.
ARTICLE
X
GENERAL
PROVISIONS
SECTION
10.01 Non-Survival
of
Representations, Warranties andAgreements. The
representations, warranties and agreements in this Agreement shall terminate
at
the Effective Time or upon the termination of this Agreement pursuant to Section 9.01, as
the case may be, except that the agreements set forth in Articles III and
X
and Sections 7.04
and 7.08 shall
survive the Effective Time and those set forth in Sections 7.02(b),
7.06,
7.07,
7.10(c),
9.02
and 9.03 and Article
X shall
survive termination indefinitely.
SECTION
10.02 Notices. All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly given
upon
receipt) by delivery in person, by facsimile, by a recognized overnight courier
service or by registered or certified mail (postage prepaid, return receipt
requested) 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 10.02):
if
to
Parent or Merger Sub:
c/o
Aurora Management Partners LLC
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx
X. Xxxx, Esq.
Facsimile: (000)
000-0000
with
a
copy to:
Xxxxxx
Xxxx & Xxxxxxxx LLP
000
Xxxxx
Xxxxx Xxxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx
X. Xxxxx
Facsimile: (000)
000-0000
if
to the
Company:
NuCO2
Inc.
0000
XX
Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxx 00000
Attention: Xxxx
X. Xxxxxxxx, Esq.
Facsimile: (000)
000-0000
with
a
copy to:
Xxxxxx
Xxxxxxxx Frome
Xxxxxxxxxx
& Wolosky LLP
Park
Avenue Tower
00
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxxx
Xxxxxxx, Esq.
Facsimile: (000)
000-0000
SECTION
10.03 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 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 be
consummated as originally contemplated to the fullest extent
possible.
SECTION
10.04 Entire
Agreement;
Assignment. This Agreement, the Guarantees and the
Confidentiality Agreement constitute the entire agreement among the parties
with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. This Agreement shall not be
assigned by operation of law or otherwise without the prior written consent
of
the other parties, and any assignment without such consent shall be null and
void, except that Parent and Merger Sub may assign all or any of their rights
and obligations hereunder to any direct or indirect wholly owned subsidiary
of
Parent, provided that no such assignment shall relieve the assigning party
of
its obligations hereunder.
SECTION
10.05 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 Sections 7.04
and 7.08 (which
are intended to be for the benefit of the persons covered thereby and may be
enforced by such persons).
SECTION
10.06 Specific
Performance. Subject to the provisions of Section 9.03,
the
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement were not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity.
SECTION
10.07 Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with, the Laws of the State of New York without regard
to
the conflict of laws principles thereof, except to the extent that the
provisions of Articles
II and III of
this Agreement
are mandatorily governed by the FBCA. All Actions arising out of or
relating to this Agreement shall be heard and determined exclusively in any
state or federal court located in New York County. The parties hereto
hereby (A) submit to the exclusive jurisdiction of any state or federal
court located in New York County for the purpose of any Action arising out
of or
relating to this Agreement brought by any party hereto, and (B) irrevocably
waive, and agree not to assert by way of motion, defense, or otherwise, in
any
such Action, any claim that it is not subject personally to the jurisdiction
of
the above-named courts, that its property is exempt or immune
from attachment or execution, that the Action is brought in an inconvenient
forum, that the venue of the Action is improper, or that this Agreement or
the
Transactions may not be enforced in or by any of the above-named courts; provided, however,
that such
consent to jurisdiction is solely for the purpose referred to in this Section 10.07 and
shall not be deemed to be a general submission to the jurisdiction of such
court
or in the State of New York other than for such purposes.
SECTION
10.08 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 Action directly or indirectly arising out of, under or in
connection with this Agreement or the Transactions. 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 any Action, seek to enforce that foregoing waiver
and
(B) acknowledges that it and the other parties hereto have been induced to
enter into this Agreement and the Transactions, as applicable, by, among other
things, the mutual waivers and certifications in this Section 10.08.
SECTION
10.09 Interpretation.
(a) When
a reference is made in this Agreement to an Article, a Section or Exhibit,
such
reference shall be to an Article of, a Section of, or an Exhibit to, this
Agreement unless otherwise indicated.
(b) The
table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
(c) Whenever
the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation.”
(d) The
words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not
to
any particular provision of this Agreement.
(e) All
terms defined in this Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(f) The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term.
SECTION
10.10 Counterparts. This
Agreement may be executed and delivered (including by facsimile 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.
IN
WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
|
NuCO2
ACQUISITION CORP.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxx | ||
|
Name:
|
Xxxxxxx X. Xxxx | ||
|
Title:
|
V.P., Secretary and General Counsel | ||
|
NuCO2
MERGER CO.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxx | ||
|
Name:
|
Xxxxxxx X. Xxxx | ||
|
Title:
|
V.P., Secretary and General Counsel | ||
|
NuCO2
INC.
|
|||
|
By:
|
/s/ Xxxxxxx X. XxXxxxxxxx | ||
|
Name:
|
Xxxxxxx X. XxXxxxxxxx | ||
|
Title:
|
Chairman and Chief Executive Officer | ||
