<\/p>\n Plans 4.10(a)
\n Proxy Statement 4.12
\n Purchaser Preamble
\n Rights 4.03
\n Rights Agreement 4.03
\n Schedule 14D-9 2.02(b)
\n Schedule TO 2.01(b)
\n SEC 2.01(a)
\n SEC Reports 4.07(a)
\n Securities Act 4.07(a)
\n Shares Recitals
\n Stockholders’ Meeting 7.01(a)
\n Subsidiary 4.01(a)
\n Surviving Corporation 3.03
\n Transactions 2.02(a)
\n 1998 Balance Sheet 4.07(c)
\n<\/c><\/s><\/table>\n
ARTICLE II<\/p>\n
THE OFFER<\/p>\n
SECTION 2.01. The Offer. (a) Provided that none of the events
\nset forth in Annex A hereto shall have occurred and be continuing, Purchaser
\nshall commence the Offer as promptly as reasonably practicable after the date
\nhereof. The obligation of Purchaser to accept for payment Shares tendered
\npursuant to the Offer shall be subject to the condition (the “Minimum
\nCondition”) that at least the number of Shares that shall constitute two-thirds
\nof the then outstanding Shares on a fully diluted basis (including, without
\nlimitation, all Shares issuable upon the conversion of any convertible
\nsecurities or upon the exercise of any options, warrants or rights (other than
\nthe Rights (as defined in Section 4.03) and other than any Shares issuable upon
\nthe exercise of any options in respect of which the Purchaser has received an
\nagreement from the option holder not to exercise such option until after the
\nrecord date for any meeting of the stockholders of the Company for the purpose
\nof considering and taking action on this Agreement and the Transactions) shall
\nhave been validly tendered and not withdrawn prior to the expiration of the
\nOffer and also shall be subject to the satisfaction of each of the other
\nconditions set forth in Annex A hereto. Purchaser expressly reserves the right
\nto waive any such condition, to increase the price per Share payable in the
\nOffer, and to make any other changes in the terms and conditions of the Offer;
\nprovided, however, that no change may be made which decreases the price per
\nShare payable in the Offer or which reduces the maximum number of Shares to be
\npurchased in the Offer or which imposes conditions to the Offer in addition to
\nthose set forth in Annex A hereto. Notwithstanding the foregoing, Purchaser may,
\nwithout the consent of the
\n 11
\n 7<\/p>\n
Company, (i) extend the Offer beyond the scheduled expiration date, which shall
\nbe 20 business days following the commencement of the Offer, if, at the
\nscheduled expiration of the Offer, any of the conditions to Purchaser’s
\nobligation to accept for payment Shares, shall not be satisfied or waived, (ii)
\nextend the Offer for any period required by any rule, regulation or
\ninterpretation of the Securities and Exchange Commission (the “SEC”), or the
\nstaff thereof, applicable to the Offer, or (iii) extend the Offer for an
\naggregate period of not more than 10 business days beyond the latest applicable
\ndate that would otherwise be permitted under clause (i) or (ii) of this
\nsentence, if, as of such date, all of the conditions to Purchaser’s obligations
\nto accept for payment Shares are satisfied or waived, but the number of Shares
\nvalidly tendered and not withdrawn pursuant to the Offer equals 80% or more, but
\nless than 90%, of outstanding Shares on a fully diluted basis. In addition, if,
\non the initial scheduled expiration date of the Offer, the sole condition
\nremaining unsatisfied is the failure of the waiting period under the
\nHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR
\nAct”), to have expired or been terminated, then, Purchaser shall extend the
\nOffer from time to time until the earlier to occur of (i) June 30, 2000 and (ii)
\nthe fifth business day after the expiration or termination of the applicable
\nwaiting period under the HSR Act. The Per Share Amount shall, subject to
\napplicable withholding of taxes, be net to the seller in cash, upon the terms
\nand subject to the conditions of the Offer. Purchaser shall pay for all Shares
\nvalidly tendered and not withdrawn promptly following the acceptance of Shares
\nfor payment pursuant to the Offer. Notwithstanding the immediately preceding
\nsentence and subject to the applicable rules of the SEC and the terms and
\nconditions of the Offer, Purchaser expressly reserves the right to delay payment
\nfor Shares in order to comply in whole or in part with applicable laws. Any such
\ndelay shall be effected in compliance with Rule 14e-1(c) under the Securities
\nExchange Act of 1934, as amended (the “Exchange Act”). If the payment equal to
\nthe Per Share Amount in cash (the “Merger Consideration”) is to be made to a
\nperson other than the person in whose name the surrendered certificate formerly
\nevidencing Shares is registered on the stock transfer books of the Company, it
\nshall be a condition of payment that the certificate so surrendered shall be
\nendorsed properly or otherwise be in proper form for transfer and that the
\nperson requesting such payment shall have paid all transfer and other taxes
\nrequired by reason of the payment of the Merger Consideration to a person other
\nthan the registered holder of the certificate surrendered, or shall have
\nestablished to the satisfaction of Purchaser that such taxes either have been
\npaid or are not applicable.<\/p>\n
(b) As promptly as reasonably practicable on the date of
\ncommencement of the Offer, Purchaser shall file with the SEC a Tender Offer
\nStatement on Schedule TO (together with all amendments and supplements thereto,
\nthe “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or
\nshall incorporate by reference an offer to purchase (the “Offer to Purchase”)
\nand forms of the related letter of transmittal and any related summary
\nadvertisement (the Schedule TO, the Offer to Purchase and such other documents,
\ntogether with all supplements and amendments thereto, being referred to herein
\ncollectively as the “Offer Documents”). Parent, Purchaser and the Company agree
\nto correct promptly any information
\n 12
\n 8<\/p>\n
provided by any of them for use in the Offer Documents that shall have become
\nfalse or misleading, and Parent and Purchaser further agree to take all steps
\nnecessary to cause the Schedule TO, as so corrected, to be filed with the SEC,
\nand the other Offer Documents, as so corrected, to be disseminated to holders of
\nShares, in each case as and to the extent required by applicable federal
\nsecurities laws.<\/p>\n
SECTION 2.02. Company Action. (a) The Company hereby approves
\nof and consents to the Offer and represents that (i) the Board, at a meeting
\nduly called and held on March 10, 2000, has unanimously (A) determined that this
\nAgreement and the transactions contemplated hereby, including each of the Offer
\nand the Merger, and the transactions (collectively, the “Transactions”), are
\nfair to, and in the best interests of, the holders of Shares, (B) approved,
\nadopted and declared advisable this Agreement and the Transactions (such
\napproval and adoption having been made in accordance with Missouri Law) and (C)
\nresolved to recommend that the holders of Shares accept the Offer and tender
\nShares pursuant to the Offer, and approve and adopt this Agreement and the
\nTransactions, and (ii) Piper Jaffray has delivered to the Board an opinion,
\nwhich will be confirmed promptly in writing, that the consideration to be
\nreceived by the holders of Shares pursuant to each of the Offer and the Merger
\nis fair to the holders of Shares from a financial point of view. The Company
\nhereby consents to the inclusion in the Offer Documents of the recommendation of
\nthe Board described in the immediately preceding sentence, and the Company shall
\nnot withdraw or modify such recommendation in any manner adverse to Purchaser or
\nParent except as provided in Section 7.05(b). The Company has been advised by
\nits directors and executive officers that they intend either to tender all
\nShares beneficially owned by them to Purchaser pursuant to the Offer or to vote
\nsuch Shares in favor of the approval and adoption by the stockholders of the
\nCompany of this Agreement and the Transactions.<\/p>\n
(b) As promptly as reasonably practicable on the date of
\ncommencement of the Offer, the Company shall file with the SEC a
\nSolicitation\/Recommendation Statement on Schedule 14D-9 (together with all
\namendments and supplements thereto, the “Schedule 14D-9”) containing, except as
\nprovided in Section 7.05(b), the recommendation of the Board described in
\nSection 2.02(a), and shall disseminate the Schedule 14D-9 to the extent required
\nby Rule 14d-9 promulgated under the Exchange Act, and any other applicable
\nfederal securities laws. The Company, Parent and Purchaser agree to correct
\npromptly any information provided by any of them for use in the Schedule 14D-9
\nwhich shall have become false or misleading, and the Company further agrees to
\ntake all steps necessary to cause the Schedule 14D-9, as so corrected, to be
\nfiled with the SEC and disseminated to holders of Shares, in each case as and to
\nthe extent required by applicable federal securities laws.<\/p>\n
(c) The Company shall promptly furnish Purchaser with mailing
\nlabels containing the names and addresses of all record holders of Shares and
\nwith security position listings of Shares held in stock depositories, each as of
\na recent date, together with all other
\n 13
\n 9<\/p>\n
available listings and computer files containing names, addresses and security
\nposition listings of record holders and beneficial owners of Shares. The Company
\nshall promptly furnish Purchaser with such additional information, including,
\nwithout limitation, updated listings and computer files of stockholders, mailing
\nlabels and security position listings, and such other assistance in
\ndisseminating the Offer Documents to holders of Shares as Parent or Purchaser
\nmay reasonably request. Subject to the requirements of applicable law, and
\nexcept for such steps as are necessary to disseminate the Offer Documents and
\nany other documents necessary to consummate the Offer or the Merger, Parent and
\nPurchaser shall hold in confidence the information contained in such labels,
\nlistings and files, shall use such information only in connection with the
\nTransactions, and, if this Agreement shall be terminated in accordance with
\nSection 9.01, shall deliver to the Company all copies of such information then
\nin their possession.<\/p>\n
ARTICLE III<\/p>\n
THE MERGER<\/p>\n
SECTION 3.01. The Merger. Upon the terms and subject to the
\nconditions set forth in Article VIII, and in accordance with Delaware Law and
\nMissouri Law, Purchaser shall be merged with and into the Company.<\/p>\n
SECTION 3.02. Effective Time; Closing. As promptly as
\npracticable after the satisfaction or, if permissible, waiver of the conditions
\nset forth in Article VIII, the parties hereto shall cause the Merger to be
\nconsummated by filing this Agreement or a certificate of merger or certificate
\nof ownership and merger with the Secretary of State of the State of Delaware and
\narticles of merger with the Secretary of State of the State of Missouri
\n(collectively, the “Certificate of Merger”), in such forms as are required by,
\nand executed in accordance with, the relevant provisions of Delaware Law and
\nMissouri Law (the date and time of such filing being the “Effective Time”).
\nPrior to such filing, a closing shall be held at the offices of Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022, or such other place as
\nthe parties shall agree, for the purpose of confirming the satisfaction or
\nwaiver, as the case may be, of the conditions set forth in Article VIII.<\/p>\n
SECTION 3.03. Effect of the Merger. As a result of the Merger,
\nthe separate corporate existence of Purchaser shall cease and the Company shall
\ncontinue as the surviving corporation of the Merger (the “Surviving
\nCorporation”). At the Effective Time, the effect of the Merger shall be as
\nprovided in the applicable provisions of Delaware Law and Missouri Law. Without
\nlimiting the generality of the foregoing, and subject thereto, at the Effective
\nTime, all the property, rights, privileges, powers and franchises of the Company
\nand Purchaser shall vest in the Surviving Corporation, and all debts,
\nliabilities, obligations, restrictions, disabilities and
\n 14
\n 10<\/p>\n
duties of the Company and Purchaser shall become the debts, liabilities,
\nobligations, restrictions, disabilities and duties of the Surviving Corporation.<\/p>\n
SECTION 3.04. Certificate of Incorporation; By-laws. (a) At
\nthe Effective Time, subject to Section 7.07(a), the Certificate of Incorporation
\nof Purchaser, as in effect immediately prior to the Effective Time, shall be the
\nArticles of Incorporation of the Surviving Corporation until thereafter amended
\nas provided by law and such Articles of Incorporation; provided, however, that,
\nat the Effective Time, Article I of the Articles of Incorporation of the
\nSurviving Corporation shall be amended to read as follows: “The name of the
\ncorporation is Wave Technologies International, Inc.”<\/p>\n
(b) Unless otherwise determined by Parent prior to the
\nEffective Time, and subject to Section 7.07(a), the By-laws of Purchaser, as in
\neffect immediately prior to the Effective Time, shall be the By-laws of the
\nSurviving Corporation until thereafter amended as provided by law, the
\nCertificate of Incorporation of the Surviving Corporation and such By-laws.<\/p>\n
SECTION 3.05. Directors and Officers. The directors of
\nPurchaser immediately prior to the Effective Time shall be the initial directors
\nof the Surviving Corporation, each to hold office in accordance with the
\nCertificate of Incorporation and By-laws of the Surviving Corporation, and the
\nofficers of the Company immediately prior to the Effective Time shall be the
\ninitial officers of the Surviving Corporation, in each case until their
\nrespective successors are duly elected or appointed and qualified or until their
\nearlier death, resignation or approval.<\/p>\n
SECTION 3.06. Conversion of Securities. At the Effective Time,
\nby virtue of the Merger and without any action on the part of Purchaser, the
\nCompany or the holders of any of the following securities:<\/p>\n
(a) Each Share issued and outstanding immediately prior to the
\n Effective Time (other than any Shares to be canceled pursuant to
\n Section 3.06(b) and any Dissenting Shares (as hereinafter defined))
\n shall be canceled and shall be converted automatically into the right
\n to receive an amount equal to the Merger Consideration payable, without
\n interest, to the holder of such Share, upon surrender, in the manner
\n provided in Section 3.09, of the certificate that formerly evidenced
\n such Share;<\/p>\n
(b) Each Share held in the treasury of the Company and each
\n Share owned by Purchaser, Parent or any direct or indirect wholly owned
\n subsidiary of Parent or of the Company immediately prior to the
\n Effective Time shall be canceled without any conversion thereof and no
\n payment or distribution shall be made with respect thereto; and<\/p>\n
(c) Each share of common stock, par value $.01 per share, of
\n Purchaser issued and outstanding immediately prior to the Effective
\n Time shall be converted into and
\n 15
\n 11<\/p>\n
exchanged for one validly issued, fully paid and nonassessable share of
\n common stock, par value $0.50 per share, of the Surviving Corporation.<\/p>\n
SECTION 3.07. Employee Stock Options. Effective as of the
\nEffective Time, the Company shall use reasonable best efforts, including
\nobtaining the consent of the individual option holders, if necessary, to (i)
\nterminate the Company’s 1993 Stock Option Plan, 1995 Stock Option Plan, the
\nCompany’s Outside Directors Stock Option Plan and 1997 Stock Option Plan, each
\nas amended through the date of this Agreement (the “Company Stock Option
\nPlans”), and (ii) cancel, at the Effective Time, each outstanding option to
\npurchase shares of Company Common Stock granted under the Company Stock Option
\nPlans (each, a “Company Stock Option”) that is outstanding and unexercised as of
\nsuch date. Each holder of a Company Stock Option that is outstanding and
\nunexercised at the Effective Time shall be entitled to receive from the
\nSurviving Corporation immediately after the Effective Time, in exchange for the
\ncancellation of such Company Stock Option, an amount in cash equal to the
\nexcess, if any, of (x) the Per Share Amount over (y) the per share exercise
\nprice of such Company Stock Option, multiplied by the number of shares of
\nCompany Common Stock subject to such Company Stock Option as of the Effective
\nTime. Any such payment shall be subject to all applicable federal, state and
\nlocal tax withholding requirements. The Company shall take all necessary action
\nto approve the disposition of the Company Stock Options in connection with the
\ntransactions contemplated by this Agreement to the extent necessary to exempt
\nsuch dispositions and acquisitions under Rule 16b-3 of the Exchange Act.<\/p>\n
SECTION 3.08. Dissenting Shares. (a) Notwithstanding any
\nprovision of this Agreement to the contrary, Shares that are outstanding
\nimmediately prior to the Effective Time and that are held by stockholders who
\nshall have neither voted in favor of the Merger nor consented thereto in writing
\nand who shall have demanded properly in writing appraisal for such Shares in
\naccordance with Section 351.455 of Missouri Law (collectively, the “Dissenting
\nShares”) shall not be converted into, or represent the right to receive, the
\nMerger Consideration. Such stockholders shall be entitled to receive payment of
\nthe appraised value of such Shares held by them in accordance with the
\nprovisions of such Section 351.455, except that all Dissenting Shares held by
\nstockholders who shall have failed to perfect or who effectively shall have
\nwithdrawn or lost their rights to appraisal of such Shares under such Section
\n351.455 shall thereupon be deemed to have been converted into, and to have
\nbecome exchangeable for, as of the Effective Time, the right to receive the
\nMerger Consideration, without any interest thereon, upon surrender, in the
\nmanner provided in Section 3.09, of the certificate or certificates that
\nformerly evidenced such Shares.<\/p>\n
(b) The Company shall give Parent (i) prompt notice of any
\ndemands for appraisal received by the Company, withdrawals of such demands, and
\nany other instruments served pursuant to Missouri Law and received by the
\nCompany and (ii) the opportunity to direct all negotiations and proceedings with
\nrespect to demands for appraisal under Missouri Law. The
\n 16
\n 12<\/p>\n
Company shall not, except with the prior written consent of Parent, make any
\npayment with respect to any demands for appraisal or offer to settle or settle
\nany such demands.<\/p>\n
SECTION 3.09. Surrender of Shares; Stock Transfer Books. (a)
\nPrior to the Effective Time, Purchaser shall designate a bank or trust company
\nto act as agent (the “Paying Agent”) for the holders of Shares to receive the
\nfunds to which holders of Shares shall become entitled pursuant to Section
\n3.06(a). Such funds shall be invested by the Paying Agent as directed by the
\nSurviving Corporation.<\/p>\n
(b) Promptly after the Effective Time, the Surviving
\nCorporation shall cause to be mailed to each person who was, at the Effective
\nTime, a holder of record of Shares entitled to receive the Merger Consideration
\npursuant to Section 3.06(a) a form of letter of transmittal (which shall specify
\nthat delivery shall be effected, and risk of loss and title to the certificates
\nevidencing such Shares (the “Certificates”) shall pass, only upon proper
\ndelivery of the Certificates to the Paying Agent) and instructions for use in
\neffecting the surrender of the Certificates pursuant to such letter of
\ntransmittal. Upon surrender to the Paying Agent of a Certificate, together with
\nsuch letter of transmittal, duly completed and validly executed in accordance
\nwith the instructions thereto, and such other documents as may be required
\npursuant to such instructions, the holder of such Certificate shall be entitled
\nto receive in exchange therefor the Merger Consideration for each Share formerly
\nevidenced by such Certificate, and such Certificate shall then be canceled. No
\ninterest shall accrue or be paid on the Merger Consideration payable upon the
\nsurrender of any Certificate for the benefit of the holder of such Certificate.
\nIf the payment equal to the Merger Consideration is to be made to a person other
\nthan the person in whose name the surrendered certificate formerly evidencing
\nShares is registered on the stock transfer books of the Company, it shall be a
\ncondition of payment that the certificate so surrendered shall be endorsed
\nproperly or otherwise be in proper form for transfer and that the person
\nrequesting such payment shall have paid all transfer and other taxes required by
\nreason of the payment of the Merger Consideration to a person other than the
\nregistered holder of the certificate surrendered, or shall have established to
\nthe satisfaction of Purchaser that such taxes either have been paid or are not
\napplicable.<\/p>\n
(c) At any time following the sixth month after the Effective
\nTime, the Surviving Corporation shall be entitled to require the Paying Agent to
\ndeliver to it any funds which had been made available to the Paying Agent and
\nnot disbursed to holders of Shares (including, without limitation, all interest
\nand other income received by the Paying Agent in respect of all funds made
\navailable to it), and, thereafter, such holders shall be entitled to look to the
\nSurviving Corporation (subject to abandoned property, escheat and other similar
\nlaws) only as general creditors thereof with respect to any Merger Consideration
\nthat may be payable upon due surrender of the Certificates held by them.
\nNotwithstanding the foregoing, neither the Surviving Corporation nor the Paying
\nAgent shall be liable to any holder of a Share for any
\n 17
\n 13<\/p>\n
Merger Consideration delivered in respect of such Share to a public official
\npursuant to any abandoned property, escheat or other similar law.<\/p>\n
(d) At the close of business on the day of the Effective Time,
\nthe stock transfer books of the Company shall be closed and thereafter there
\nshall be no further registration of transfers of Shares on the records of the
\nCompany. From and after the Effective Time, the holders of Shares outstanding
\nimmediately prior to the Effective Time shall cease to have any rights with
\nrespect to such Shares except as otherwise provided herein or by applicable law.<\/p>\n
ARTICLE IV<\/p>\n
REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n
As an inducement to Parent and the Purchaser to enter into
\nthis Agreement, the Company hereby represents and warrants to Parent and
\nPurchaser that, except as otherwise disclosed in the disclosure schedule
\ndelivered simultaneously herewith:<\/p>\n
SECTION 4.01. Organization and Qualification; Subsidiaries.
\n(a) Each of the Company and each subsidiary of the Company (“Subsidiary”) is a
\ncorporation duly organized, validly existing and, to the extent applicable, in
\ngood standing under the laws of the jurisdiction of its incorporation and has
\nthe requisite corporate power and authority and all necessary governmental
\napprovals to own, lease and operate its properties and to carry on its business
\nas it is now being conducted. The Company and each Subsidiary is duly qualified
\nor licensed as a foreign corporation to do business, and is in good standing, in
\neach jurisdiction where the character of the properties owned, leased or
\noperated by it or the nature of its business makes such qualification or
\nlicensing necessary. Section 4.01(a) of the Disclosure Schedule lists
\njurisdictions in which the Company is in the process of withdrawing its
\nqualification as a foreign corporation.<\/p>\n
(b) Except as disclosed in Section 4.01(b) of the Disclosure
\nSchedule (the “Disclosure Schedule”), the Company does not directly or
\nindirectly own any equity or similar interest in, or any interest convertible
\ninto or exchangeable or exercisable for any equity or similar interest in, any
\ncorporation, partnership, joint venture or other business association or entity.<\/p>\n
SECTION 4.02. Articles of Incorporation and By-laws. The
\nCompany has heretofore furnished to Parent a complete and correct copy of the
\nArticles of Incorporation and the By-laws or equivalent organizational
\ndocuments, each as amended to date, of the Company and each Subsidiary. Such
\nArticles of Incorporation, By-laws or equivalent organizational documents are in
\nfull force and effect. Neither the Company nor any Subsidiary is in violation of
\n 18
\n 14<\/p>\n
any of the provisions of its Articles of Incorporation, By-laws or equivalent
\norganizational documents.<\/p>\n
SECTION 4.03. Capitalization. The authorized capital stock of
\nthe Company consists of 20,000,000 Shares and 1,000,000 shares of preferred
\nstock, no par value (“Company Preferred Stock”). As of the date hereof, (a)
\n4,256,555 Shares are issued and outstanding, all of which are validly issued,
\nfully paid and nonassessable, (b) no Shares are held in the treasury of the
\nCompany, (c) no Shares are held by any Subsidiary, and (d) 606,492 Shares are
\nreserved for future issuance pursuant to outstanding employee stock options or
\nstock incentive rights granted pursuant to the Company Stock Option Plans. As of
\nthe date hereof, no shares of Company Preferred Stock are issued and
\noutstanding. Except as set forth in this Section 4.03 and Section 4.03 of the
\nDisclosure Schedule, and except for the rights (the “Rights”) issued pursuant to
\nthe Rights Agreement, dated as of September 17, 1998 (the “Rights Agreement”),
\nbetween the Company and ChaseMellon Shareholder Services, L.L.C., as rights
\nagent, there are no options, warrants or other rights, agreements, arrangements
\nor commitments of any character relating to the issued or unissued capital stock
\nof the Company or any Subsidiary or obligating the Company or any Subsidiary to
\nissue or sell any shares of capital stock of, or other equity interests in, the
\nCompany or any Subsidiary. All Shares subject to issuance as aforesaid, upon
\nissuance on the terms and conditions specified in the instruments pursuant to
\nwhich they are issuable, will be duly authorized, validly issued, fully paid and
\nnonassessable. There are no outstanding contractual obligations of the Company
\nor any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any
\ncapital stock of any Subsidiary or to provide funds to, or make any investment
\n(in the form of a loan, capital contribution or otherwise) in, any Subsidiary or
\nany other person. Each outstanding share of capital stock of each Subsidiary is
\nduly authorized, validly issued, fully paid and nonassessable, and each such
\nshare is owned by the Company or another Subsidiary free and clear of all
\nsecurity interests, liens, claims, pledges, options, rights of first refusal,
\nagreements, limitations on the Company’s or any Subsidiary’s voting rights,
\ncharges and other encumbrances of any nature whatsoever.<\/p>\n
SECTION 4.04. Authority Relative to This Agreement. The
\nCompany has all necessary power and authority to execute and deliver this
\nAgreement, to perform its obligations hereunder and to consummate the
\nTransactions. The execution and delivery of this Agreement by the Company and
\nthe consummation by the Company of the Transactions have been duly and validly
\nauthorized by all necessary corporate action, and no other corporate proceedings
\non the part of the Company are necessary to authorize this Agreement or to
\nconsummate the Transactions (other than, with respect to the Merger, the
\napproval and adoption of this Agreement by the holders of a majority of the
\nthen-outstanding Shares, if and to the extent required by applicable law, and
\nthe filing and recordation of appropriate merger documents as required by
\nDelaware Law and Missouri Law). This Agreement has been duly executed and
\ndelivered by the Company and, assuming the due authorization, execution and
\ndelivery by Parent
\n 19
\n 15<\/p>\n
and Purchaser, constitutes a legal, valid and binding obligation of the Company,
\nenforceable against the Company in accordance with its terms.<\/p>\n
SECTION 4.05. No Conflict; Required Filings and Consents. (a)
\nExcept as set forth in Section 4.05 of the Disclosure Schedule, the execution
\nand delivery of this Agreement by the Company do not, and the performance of
\nthis Agreement by the Company will not, (i) conflict with or violate the
\nArticles of Incorporation or By-laws or equivalent organizational documents of
\nthe Company or any Subsidiary, (ii) assuming all consents, approvals,
\nauthorizations and other actions described in Section 4.05(b) have been obtained
\nor taken, conflict with or violate any United States or non-United States
\nstatute, law, ordinance, regulation, rule, code, executive order, injunction,
\njudgment, decree or other order (“Law”) applicable to the Company or any
\nSubsidiary or by which any property or asset of the Company or any Subsidiary is
\nbound or affected, or (iii) result in any breach of or constitute a default (or
\nan event which, with notice or lapse of time or both, would become a default)
\nunder, or give to others any right of termination, amendment, acceleration or
\ncancellation of, or result in the creation of a lien or other encumbrance on any
\nproperty or asset of the Company or any Subsidiary pursuant to, any note, bond,
\nmortgage, indenture, contract, agreement, lease, license, permit, franchise or
\nother instrument or obligation, except, with respect to clauses (ii) and (iii),
\nfor any such conflicts, violations, breaches, defaults or other occurrences
\nwhich would not prevent or materially delay consummation of the Offer or the
\nMerger or otherwise prevent or materially delay the Company from performing its
\nobligations under this Agreement and would not have a Material Adverse Effect.<\/p>\n
(b) The execution and delivery of this Agreement by the
\nCompany do not, and the performance of this Agreement by the Company will not,
\nrequire any consent, approval, authorization or permit of, or filing with or
\nnotification to, any United States federal, state, county or local or United
\nKingdom or other non-United States government, governmental, regulatory or
\nadministrative authority, agency, instrumentality or commission or any court,
\ntribunal, or judicial or arbitral body (a “Governmental Authority”), except (i)
\nfor applicable requirements, if any, of the Exchange Act, state securities or
\n“blue sky” laws (“Blue Sky Laws”) and the pre-merger notification requirements
\nof the HSR Act, and filing and recordation of appropriate merger documents as
\nrequired by Delaware Law and Missouri Law, and (ii) where the failure to obtain
\nsuch consents, approvals, authorizations or permits, or to make such filings or
\nnotifications, would not prevent or materially delay consummation of the Offer
\nor the Merger, or otherwise prevent or materially delay the Company from
\nperforming its obligations under this Agreement, and would not have a Material
\nAdverse Effect.<\/p>\n
SECTION 4.06. Permits; Compliance. Except as set forth in
\nSection 4.06 of the Disclosure Schedule, each of the Company and the
\nSubsidiaries is in possession of all franchises, grants, authorizations,
\nlicenses, permits, easements, variances, exceptions, consents, certificates,
\napprovals and orders of any Governmental Authority necessary for each of the
\nCompany or the
\n 20
\n 16<\/p>\n
Subsidiaries to own, lease and operate its properties or to carry on its
\nbusiness as it is now being conducted (the “Permits”), except where the failure
\nto have, or the suspension or cancellation of, any of the Permits would not
\nprevent or materially delay consummation of the Offer or the Merger or otherwise
\nprevent or materially delay the Company from performing its obligations under
\nthis Agreement and would not have a Material Adverse Effect. As of the date
\nhereof, no suspension or cancellation of any of the Permits is pending or, to
\nthe knowledge of the Company, threatened, except where the failure to have, or
\nthe suspension or cancellation of, any of the Permits would not prevent or
\nmaterially delay consummation of the Offer or the Merger or otherwise prevent or
\nmaterially delay the Company from performing its obligations under this
\nAgreement and would not have a Material Adverse Effect. Except as set forth in
\nSection 4.06 of the Disclosure Schedule, neither the Company nor any Subsidiary
\nis in conflict with, or in default, breach or violation of, (a) any Law
\napplicable to the Company or any Subsidiary or by which any property or asset of
\nthe Company or any Subsidiary is bound or affected, or (b) any note, bond,
\nmortgage, indenture, contract, agreement, lease, license, Permit, franchise or
\nother instrument or obligation to which the Company or any Subsidiary is a party
\nor by which the Company or any Subsidiary or any property or asset of the
\nCompany or any Subsidiary is bound, except for any such conflicts, defaults,
\nbreaches or violations that would not prevent or materially delay consummation
\nof the Offer or the Merger or otherwise prevent or materially delay the Company
\nfrom performing its obligations under this Agreement and would not have a
\nMaterial Adverse Effect.<\/p>\n
SECTION 4.07. SEC Filings; Financial Statements. (a) The
\nCompany has filed all forms, reports and documents required to be filed by it
\nwith the SEC since April 30, 1996 and has heretofore delivered to Parent, in the
\nform filed with the SEC, (i) its Annual Reports on Form 10-KSB for the fiscal
\nyears ended April 30, 1997 and 1998 and on form 10-K for the fiscal year ended
\nApril 30, 1999, respectively, (ii) its Quarterly Reports on Form 10-Q for the
\nperiods ended July 31, 1999 and October 31, 1999, (iii) all proxy statements
\nrelating to the Company’s meetings of stockholders (whether annual or special)
\nheld since April 30, 1996 and (iv) all other forms, reports and other
\nregistration statements (other than Quarterly Reports on Form 10-Q not referred
\nto in clause (ii) above) filed by the Company with the SEC since April 30, 1999
\n(the forms, reports and other documents referred to in clauses (i), (ii), (iii)
\nand (iv) above being, collectively, the “SEC Reports”). The SEC Reports (i) were
\nprepared in accordance with either the requirements of the Securities Act of
\n1933, as amended (the “Securities Act”), or the Exchange Act, as the case may
\nbe, and the rules and regulations promulgated thereunder, and (ii) did not, at
\nthe time they were filed, or, if amended, as of the date of such amendment,
\ncontain any untrue statement of a material fact or omit to state a material fact
\nrequired to be stated therein or necessary in order to make the statements made
\ntherein, in the light of the circumstances under which they were made, not
\nmisleading. No Subsidiary is required to file any form, report or other document
\nwith the SEC.
\n 21
\n 17<\/p>\n
(b) Each of the consolidated financial statements (including,
\nin each case, any notes thereto) contained in the SEC Reports was prepared in
\naccordance with United States generally accepted accounting principles (“GAAP”)
\napplied on a consistent basis throughout the periods indicated (except as may be
\nindicated in the notes thereto) and each fairly presents, in all material
\nrespects, the consolidated financial position, results of operations and cash
\nflows of the Company and its consolidated Subsidiaries as at the respective
\ndates thereof and for the respective periods indicated therein, except as
\notherwise noted therein (subject, in the case of unaudited statements, to normal
\nand recurring year-end adjustments which would not have had, and would not have,
\na Material Adverse Effect).<\/p>\n
(c) Except as and to the extent set forth on the consolidated
\nbalance sheet of the Company and the consolidated Subsidiaries as at April 30,
\n1999, including the notes thereto (the “1999 Balance Sheet”), neither the
\nCompany nor any Subsidiary has any liability or obligation of any nature
\n(whether accrued, absolute, contingent or otherwise), except for liabilities and
\nobligations, incurred in the ordinary course of business consistent with past
\npractice since April 30, 1999, which would not prevent or materially delay
\nconsummation of the Offer or the Merger or otherwise prevent or materially delay
\nthe Company from performing its obligations under this Agreement and would not
\nhave a Material Adverse Effect.<\/p>\n
(d) The Company has heretofore furnished to Parent complete
\nand correct copies of all amendments and modifications that have not been filed
\nby the Company with the SEC to all agreements, documents and other instruments
\nthat previously had been filed by the Company with the SEC and are currently in
\neffect.<\/p>\n
SECTION 4.08. Absence of Certain Changes or Events. Since
\nApril 30, 1999, except as set forth in Section 4.08 of the Disclosure Schedule,
\nor as expressly contemplated by this Agreement, (a) the Company and the
\nSubsidiaries have conducted their businesses only in the ordinary course and in
\na manner consistent with past practice, (b) there has not been any Material
\nAdverse Effect, and (c) none of the Company nor any Subsidiary has taken any
\naction that, if taken after the date of this Agreement, would constitute a
\nbreach of any of the covenants set forth in Section 6.01.<\/p>\n
SECTION 4.09. Absence of Litigation. There is no litigation,
\nsuit, claim, action, proceeding or investigation (an “Action”) pending or, to
\nthe knowledge of the Company, threatened against the Company or any Subsidiary,
\nor any property or asset of the Company or any Subsidiary, before any
\nGovernmental Authority that (a) would have a Material Adverse Effect or (b)
\nseeks to materially delay or prevent the consummation of any Transaction,.
\nNeither the Company nor any Subsidiary nor any property or asset of the Company
\nor any Subsidiary is subject to any continuing order of, consent decree,
\nsettlement agreement or similar written agreement with, or, to the knowledge of
\nthe Company, continuing investigation by, any Governmental Authority, or any
\norder, writ, judgment, injunction, decree, determination or
\n 22
\n 18<\/p>\n
award of any Governmental Authority that would prevent or materially delay
\nconsummation of the Offer or the Merger or otherwise prevent or materially delay
\nthe Company from performing its obligations under this Agreement or would have a
\nMaterial Adverse Effect.<\/p>\n
SECTION 4.10. Employee Benefit Plans. (a) Section 4.10(a) of
\nthe Disclosure Schedule lists (i) all employee benefit plans (as defined in
\nSection 3(3) of the Employee Retirement Income Security Act of 1974, as amended
\n(“ERISA”)) and all bonus, stock option, stock purchase, restricted stock,
\nincentive, deferred compensation, retiree medical or life insurance,
\nsupplemental retirement, severance or other benefit plans, programs or
\narrangements, and all employment, termination, severance or other contracts or
\nagreements, whether legally enforceable or not, to which the Company or any
\nSubsidiary is a party, with respect to which the Company or any Subsidiary has
\nany obligation or which are maintained, contributed to or sponsored by the
\nCompany or any Subsidiary for the benefit of any current or former employee,
\nofficer or director of the Company or any Subsidiary, (ii) each employee benefit
\nplan for which the Company or any Subsidiary could incur liability under Section
\n4069 of ERISA in the event such plan has been or were to be terminated, (iii)
\nany plan in respect of which the Company or any Subsidiary could incur liability
\nunder Section 4212(c) of ERISA, and (iv) any contracts, arrangements or
\nunderstandings between the Company or any Subsidiary and any employee of the
\nCompany or any Subsidiary including, without limitation, any contracts,
\narrangements or understandings relating in any way to a sale of the Company or
\nany Subsidiary (collectively, the “Plans”). Each Plan is in writing and the
\nCompany has furnished to Purchaser a true and complete copy of each Plan and has
\ndelivered to Purchaser a true and complete copy of each material document, if
\nany, prepared in connection with each such Plan, including, without limitation,
\n(i) a copy of each trust or other funding arrangement, (ii) each summary plan
\ndescription and summary of material modifications, (iii) the most recently filed
\nInternal Revenue Service (“IRS”) Form 5500, (iv) the most recently received IRS
\ndetermination letter for each such Plan, and (v) the most recently prepared
\nactuarial report and financial statement in connection with each such Plan.
\nNeither the Company nor any Subsidiary has any express or implied commitment,
\nwhether legally enforceable or not, (i) to create, incur liability with respect
\nto or cause to exist any other employee benefit plan, program or arrangement,
\n(ii) to enter into any contract or agreement to provide compensation or benefits
\nto any individual, or (iii) to modify, change or terminate any Plan, other than
\nwith respect to a modification, change or termination required by this
\nAgreement, ERISA or the Internal Revenue Code of 1986, as amended (the “Code”).<\/p>\n
(b) None of the Plans is a multiemployer plan (within the
\nmeaning of Section 3(37) or 4001(a)(3) of ERISA) (a “Multiemployer Plan”) or a
\nsingle employer pension plan (within the meaning of Section 4001(a)(15) of
\nERISA) for which the Company or any Subsidiary could incur liability under
\nSection 4063 or 4064 of ERISA (a “Multiple Employer Plan”). Except as set forth
\nin Section 4.10 of the Disclosure Schedule, none of the Plans (i) provides for
\nthe payment of separation, severance, termination or similar-type benefits to
\nany person, (ii)
\n 23
\n 19<\/p>\n
obligates the Company or any Subsidiary to pay separation, severance,
\ntermination or similar-type benefits solely or partially as a result of any
\ntransaction contemplated by this Agreement, or (iii) obligates the Company or
\nany Subsidiary to make any payment or provide any benefit as a result of a
\n“change in control”, within the meaning of such term under Section 280G of the
\nCode. None of the Plans provides for or promises retiree medical, disability or
\nlife insurance benefits to any current or former employee, officer or director
\nof the Company or any Subsidiary. Each of the Plans other than Non-U.S. Benefit
\nPlans (defined below) is subject only to the Laws of the United States or a
\npolitical subdivision thereof.<\/p>\n
(c) Except as set forth in Section 4.10 of the Disclosure
\nSchedule, each Plan is now and, to the knowledge of the Company, always has been
\noperated in all material respects in accordance with its terms and the
\nrequirements of all applicable Laws including, without limitation, ERISA and the
\nCode. Except as set forth in Section 4.10 of the Disclosure Schedule, the
\nCompany and the Subsidiaries have performed all material obligations required to
\nbe performed by them under, are not in any respect in default under or in
\nviolation of, and have no knowledge of any default or violation by any party to,
\nany Plan. No Action is pending or, to the knowledge of the Company, threatened
\nwith respect to any Plan (other than claims for benefits in the ordinary course)
\nand no fact or event exists that could give rise to any such Action.<\/p>\n
(d) Each Plan that is intended to be qualified under Section
\n401(a) of the Code or Section 401(k) of the Code has timely received a favorable
\ndetermination letter from the IRS covering all of the provisions applicable to
\nthe Plan for which determination letters are currently available that the Plan
\nis so qualified and each trust established in connection with any Plan which is
\nintended to be exempt from federal income taxation under Section 501(a) of the
\nCode has received a determination letter from the IRS that it is so exempt, and
\nno fact or event has occurred since the date of such determination letter or
\nletters from the IRS to adversely affect the qualified status of any such Plan
\nor the exempt status of any such trust.<\/p>\n
(e) Except as set forth in Section 4.10 of the Disclosure
\nSchedule, there has not been any prohibited transaction (within the meaning of
\nSection 406 of ERISA or Section 4975 of the Code) with respect to any Plan.
\nNeither the Company nor any Subsidiary has incurred any liability under, arising
\nout of or by operation of Title IV of ERISA (other than liability for premiums
\nto the Pension Benefit Guaranty Corporation arising in the ordinary course),
\nincluding, without limitation, any liability in connection with (i) the
\ntermination or reorganization of any employee benefit plan subject to Title IV
\nof ERISA, or (ii) the withdrawal from any Multiemployer Plan or Multiple
\nEmployer Plan, and no fact or event exists which could give rise to any such
\nliability.<\/p>\n
(f) Except as set forth in Section 4.10 of the Disclosure
\nSchedule, all contributions, premiums or payments required to be made with
\nrespect to any Plan have been made on or before their due dates. All such
\ncontributions have been fully deducted for income
\n 24
\n 20<\/p>\n
tax purposes and no such deduction has been challenged or disallowed by any
\nGovernmental Authority and no fact or event exists which could give rise to any
\nsuch challenge or disallowance.<\/p>\n
(g) In addition to the foregoing, with respect to each Plan
\nthat is not subject to United States law (a “Non-U.S. Benefit Plan”):<\/p>\n
(i) all employer and employee contributions to each Non-U.S.
\n Benefit Plan required by law or by the terms of such Non-U.S. Benefit
\n Plan have been made, or, if applicable, accrued in accordance with
\n normal accounting practices, and a pro rata contribution for the period
\n prior to and including the date of this Agreement has been made or
\n accrued;<\/p>\n
(ii) the fair market value of the assets of each funded
\n Non-U.S. Benefit Plan, the liability of each insurer for any Non-U.S.
\n Benefit Plan funded through insurance or the book reserve established
\n for any Non-U.S. Benefit Plan, together with any accrued contributions,
\n is sufficient to procure or provide for the benefits determined on any
\n ongoing basis (actual or contingent) accrued to the date of this
\n Agreement with respect to all current and former participants under
\n such Non-U.S. Benefit Plan according to the actuarial assumptions and
\n valuations most recently used to determine employer contributions to
\n such Non-U.S. Benefit Plan, and no Transaction shall cause such assets
\n or insurance obligations to be less than such benefit obligations; and<\/p>\n
(iii) each Non-U.S. Benefit Plan required to be registered has
\n been registered and has been maintained in good standing with
\n applicable regulatory authorities. Each Non-U.S. Benefit Plan is now
\n and always has been operated in full compliance with all applicable
\n non-United States laws.<\/p>\n
SECTION 4.11. Labor and Employment Matters. (a) Except as set
\nforth in Section 4.11 of the Disclosure Schedule, (i) there are no controversies
\npending or, to the knowledge of the Company, threatened between the Company or
\nany Subsidiary and any of their respective employees, which controversies would
\nprevent or materially delay consummation of the Offer or the Merger or otherwise
\nprevent or materially delay the Company from performing its obligations under
\nthis Agreement or would have a Material Adverse Effect; (ii) neither the Company
\nnor any Subsidiary is a party to any collective bargaining agreement or other
\nlabor union contract applicable to persons employed by the Company or any
\nSubsidiary, nor, to the knowledge of the Company, are there any activities or
\nproceedings of any labor union to organize any such employees; (iii) neither the
\nCompany nor any Subsidiary has breached or otherwise failed to comply with any
\nprovision of any such agreement or contract, and there are no grievances
\noutstanding against the Company or any Subsidiary under any such agreement or
\ncontract; (iv) there are no unfair labor practice complaints pending against the
\nCompany or any
\n 25
\n 21<\/p>\n
Subsidiary before the National Labor Relations Board or any current union
\nrepresentation questions involving employees of the Company or any Subsidiary;
\nand (v) there is no strike, slowdown, work stoppage or lockout, or, to the
\nknowledge of the Company, threat thereof, by or with respect to any employees of
\nthe Company or any Subsidiary.<\/p>\n
(b) The Company and the Subsidiaries are in compliance with
\nall applicable laws relating to the employment of labor, including those related
\nto wages, hours, collective bargaining and the payment and withholding of taxes
\nand other sums as required by the appropriate Governmental Authority and has
\nwithheld and paid to the appropriate Governmental Authority or are holding for
\npayment not yet due to such Governmental Authority all amounts required to be
\nwithheld from employees of the Company or any Subsidiary and are not liable for
\nany arrears of wages, taxes, penalties or other sums for failure to comply with
\nany of the foregoing. The Company and the Subsidiaries have paid in full to all
\nemployees or adequately accrued for in accordance with GAAP consistently applied
\nall wages, salaries, commissions, bonuses, benefits and other compensation due
\nto or on behalf of such employees and there is no claim with respect to payment
\nof wages, salary or overtime pay that has been asserted or is now pending or
\nthreatened before any Governmental Authority with respect to any persons
\ncurrently or formerly employed by the Company or any Subsidiary. Neither the
\nCompany nor any Subsidiary is a party to, or otherwise bound by, any consent
\ndecree with, or citation by, any Governmental Authority relating to employees or
\nemployment practices. There is no charge or proceeding with respect to a
\nviolation of any occupational safety or health standards that has been asserted
\nor is now pending or threatened with respect to the Company. There is no charge
\nof discrimination in employment or employment practices, for any reason,
\nincluding, without limitation, age, gender, race, religion or other legally
\nprotected category, which has been asserted or is now pending or threatened
\nbefore the United States Equal Employment Opportunity Commission, or any other
\nGovernmental Authority in any jurisdiction in which the Company or any
\nSubsidiary have employed or employ any person.<\/p>\n
SECTION 4.12. Offer Documents; Schedule 14D-9; Proxy
\nStatement. Neither the Schedule 14D-9 nor any information supplied by the
\nCompany for inclusion in the Offer Documents shall, at the times the Schedule
\n14D-9, the Offer Documents or any amendments or supplements thereto are filed
\nwith the SEC or are first published, sent or given to stockholders of the
\nCompany, as the case may be, contain any untrue statement of a material fact or
\nomit to state any material fact required to be stated therein or necessary to
\nmake the statements therein, in the light of the circumstances under which they
\nwere made, not misleading. Neither the proxy statement to be sent to the
\nstockholders of the Company in connection with the Stockholders’ Meeting (as
\nhereinafter defined) or the information statement to be sent to such
\nstockholders, as appropriate (such proxy statement or information statement, as
\namended or supplemented, being referred to herein as the “Proxy Statement”),
\nshall, at the date the Proxy Statement (or any amendment or supplement thereto)
\nis first mailed to stockholders of the Company, at the time of the Stockholders’
\nMeeting and at the Effective Time, contain any statement which, at the time
\n 26
\n 22<\/p>\n
and in light of the circumstances under which it was made, is false or
\nmisleading with respect to any material fact, or which omits to state any
\nmaterial fact necessary in order to make the statements therein not false or
\nmisleading or necessary to correct any statement in any earlier communication
\nwith respect to the solicitation of proxies for the Stockholders’ Meeting which
\nshall have become false or misleading. The Schedule 14D-9 and the Proxy
\nStatement shall comply in all material respects as to form with the requirements
\nof the Exchange Act and the rules and regulations thereunder.<\/p>\n
SECTION 4.13. Property and Leases. (a) The Company and the
\nSubsidiaries have sufficient title to all their properties and assets to conduct
\ntheir respective businesses as currently conducted or as contemplated to be
\nconducted, with only such exceptions as would not have a Material Adverse
\nEffect.<\/p>\n
(b) Except as set forth in Section 4.13 of the Disclosure
\nSchedule, each parcel of real property owned or leased by the Company or any
\nSubsidiary (i) is owned or leased free and clear of all mortgages, pledges,
\nliens, security interests, conditional and installment sale agreements,
\nencumbrances, charges or, to the knowledge of the Company, other claims of third
\nparties of any kind, including, without limitation, any easement, right of way
\nor other encumbrance to title, or any option, right of first refusal, or right
\nof first offer (collectively, “Liens”), other than (A) Liens for current taxes
\nand assessments not yet past due, (B) inchoate mechanics’ and materialmen’s
\nLiens for construction in progress, (C) workmen’s, repairmen’s, warehousemen’s
\nand carriers’ Liens arising in the ordinary course of business of the Company or
\nsuch Subsidiary consistent with past practice, and (D) all matters of record,
\nLiens and other imperfections of title and encumbrances that, individually or in
\nthe aggregate, would not have a Material Adverse Effect (collectively,
\n“Permitted Liens”), and (ii) is neither subject to any governmental decree or
\norder to be sold nor is being condemned, expropriated or otherwise taken by any
\npublic authority with or without payment of compensation therefor, nor, to the
\nknowledge of the Company, has any such condemnation, expropriation or taking
\nbeen proposed.<\/p>\n
(c) All leases of real property leased for the use or benefit
\nof the Company or any Subsidiary to which the Company or any Subsidiary is a
\nparty, and all amendments and modifications thereto, are in full force and
\neffect and have not been modified or amended, and there exists no default under
\nany such lease by the Company or any Subsidiary, nor any event which, with
\nnotice or lapse of time or both, would constitute a default thereunder by the
\nCompany or any Subsidiary, except as would not prevent or materially delay
\nconsummation of the Offer or the Merger or otherwise prevent or materially delay
\nthe Company from performing its obligations under this Agreement and would not
\nhave a Material Adverse Effect.<\/p>\n
(d) To the knowledge of the Company, there are no contractual
\nor legal restrictions that preclude or restrict the ability to use any real
\nproperty owned or leased by the Company or any Subsidiary for the purposes for
\nwhich it is currently being used. To the
\n 27
\n 23<\/p>\n
knowledge of the Company, there are no material latent defects or material
\nadverse physical conditions affecting the real property, and improvements
\nthereon, owned or leased by the Company or any Subsidiary other than those that
\nwould not prevent or materially delay consummation of the Offer or the Merger or
\notherwise prevent or materially delay the Company from performing its
\nobligations under this Agreement and would not have a Material Adverse Effect.<\/p>\n
SECTION 4.14. Intellectual Property. Except as would not have
\na Material Adverse Effect, (a) the conduct of the business of the Company and
\nthe Subsidiaries as currently conducted does not infringe upon or misappropriate
\nthe Intellectual Property rights of any third party, and no claim has been
\nasserted to the Company that the conduct of the business of the Company and the
\nSubsidiaries as currently conducted infringes upon or may infringe upon or
\nmisappropriates the Intellectual Property Rights of any third party; (b) with
\nrespect to each item of Intellectual Property owned by the Company or a
\nSubsidiary and material to the business, financial condition or results of
\noperations of the Company and the Subsidiaries taken as a whole (“Company Owned
\nIntellectual Property”), the Company or a Subsidiary is the owner of the entire
\nright, title and interest in and to such Company Owned Intellectual Property and
\nis entitled to use such Company Owned Intellectual Property in the continued
\noperation of its respective business; (c) with respect to each item of
\nIntellectual Property licensed to the Company or a Subsidiary that is material
\nto the business of the Company and the Subsidiaries as currently conducted
\n(“Company Licensed Intellectual Property”), the Company or a Subsidiary has the
\nright to use such Company Licensed Intellectual Property in the continued
\noperation of its respective business in accordance with the terms of the license
\nagreement governing such Company Licensed Intellectual Property; (d) the Company
\nOwned Intellectual Property is valid and enforceable, and has not been adjudged
\ninvalid or unenforceable in whole or in part; (e) to the knowledge of the
\nCompany, no person is engaging in any activity that infringes upon the Company
\nOwned Intellectual Property; (f) each license of the Company Licensed
\nIntellectual Property is valid and enforceable, is binding on all parties to
\nsuch license, and is in full force and effect; (g) to the knowledge of the
\nCompany, no party to any license of the Company Licensed Intellectual Property
\nis in breach thereof or default thereunder; and (h) neither the execution of
\nthis Agreement nor the consummation of any Transaction shall adversely affect
\nany of the Company’s rights with respect to the Company Owned Intellectual
\nProperty or the Company Licensed Intellectual Property.<\/p>\n
SECTION 4.15. Year 2000 Compliance. All Company Systems are
\nYear 2000 Compliant except for systems that are not material to the Company.<\/p>\n
SECTION 4.16. Taxes. The Company and the Subsidiaries have
\nfiled all United States federal, state, local and United Kingdom and other
\nnon-United States Tax returns and reports required to be filed by them and have
\npaid and discharged all Taxes required to be paid or discharged, other than (a)
\nsuch payments as are being contested in good faith by appropriate
\n 28
\n 24<\/p>\n
proceedings and (b) such filings, payments or other occurrences that would not
\nhave a Material Adverse Effect. Neither the IRS nor any other United States or
\nnon-United States taxing authority or agency is now asserting or, to the
\nknowledge of the Company, threatening to assert against the Company or any
\nSubsidiary any deficiency or claim for any Taxes or interest thereon or
\npenalties in connection therewith. Neither the Company nor any Subsidiary has
\ngranted any waiver of any statute of limitations with respect to, or any
\nextension of a period for the assessment of any Tax. The accruals and reserves
\nfor Taxes reflected in the 1999 Balance Sheet are adequate to cover all Taxes
\naccruable through such date (including interest and penalties, if any, thereon)
\nin accordance with GAAP. Neither the Company nor any Subsidiary has made an
\nelection under Section 341(f) of the Code. There are no Tax liens upon any
\nproperty or assets of the Company or any of the Subsidiaries except liens for
\ncurrent Taxes not yet due. Neither the Company nor any of the Subsidiaries has
\nbeen required to include in income any adjustment pursuant to Section 481 of the
\nCode by reason of a voluntary change in accounting method initiated by the
\nCompany or any of the Subsidiaries, and the IRS has not initiated or proposed
\nany such adjustment or change in accounting method, in either case which
\nadjustment or change would have a Material Adverse Effect. Except as set forth
\nin the financial statements described in Section 4.07, neither the Company nor
\nany of the Subsidiaries has entered into a transaction which is being accounted
\nfor under the installment method of Section 453 of the Code, which would prevent
\nor materially delay consummation of the Offer or the Merger or otherwise prevent
\nor materially delay the Company from performing its obligations under this
\nAgreement or would have a Material Adverse Effect.<\/p>\n
SECTION 4.17. Environmental Matters. Except as described in
\nSection 4.17 of the Disclosure Schedule and would not have a Material Adverse
\nEffect, (a) the Company has not violated and is not in violation of any
\nEnvironmental Law; (b) to the knowledge of the Company, none of the properties
\ncurrently or formerly owned, leased or operated by the Company (including,
\nwithout limitation, soils and surface and ground waters) are contaminated with
\nany Hazardous Substance; (c) the Company is not actually, or, to the knowledge
\nof the Company, potentially or allegedly liable for any off-site contamination
\nby Hazardous Substances; (d) the Company is not actually, potentially or
\nallegedly liable under any Environmental Law (including, without limitation,
\npending or threatened liens); (e) the Company has all permits, licenses and
\nother authorizations required under any Environmental Law (“Environmental
\nPermits”); (f) the Company has always been and is in compliance with its
\nEnvironmental Permits; and (g) neither the execution of this Agreement nor the
\nconsummation of the Transactions will require any investigation, remediation or
\nother action with respect to Hazardous Substances, or any notice to or consent
\nof Governmental Authorities or third parties, pursuant to any applicable
\nEnvironmental Law or Environmental Permit.<\/p>\n
SECTION 4.18. Amendment to Rights Agreement. The Company has
\nirrevocably amended, and the Board has taken all necessary action to irrevocably
\namend, the Rights Agreement so that (a) none of the execution or delivery of
\nthis Agreement or the
\n 29
\n 25<\/p>\n
Stockholder Agreements, the making of the Offer, the acceptance for payment of
\nShares by Purchaser pursuant to the Offer, the consummation of the Merger, the
\npurchase of Shares or the consummation of any other Transaction will result in
\n(i) the occurrence of the “flip-in event” described under Section 11 of the
\nRights Agreement, (ii) the occurrence of the “flip-over event” described in
\nSection 13(a) of the Rights Agreement, or (iii) the Rights becoming evidenced
\nby, and transferable pursuant to, certificates separate from the certificates
\nrepresenting Shares, and (b) the Rights will expire pursuant to the terms of the
\nRights Agreement at the Effective Time.<\/p>\n
SECTION 4.19. Material Contracts. (a) Subsections (i) through
\n(xi) of Section 4.19 of the Disclosure Schedule contain a list of the following
\ntypes of contracts and agreements to which the Company or any Subsidiary is a
\nparty (such contracts, agreements and arrangements as are required to be set
\nforth in Section 4.19(a) of the Disclosure Schedule being the “Material
\nContracts”):<\/p>\n
(i) each contract and agreement which (A) is likely to
\n involve consideration of more than $100,000, in the
\n aggregate, during the calendar year ending December
\n 31, 2000, (B) is likely to involve consideration of
\n more than $100,000, in the aggregate, over the
\n remaining term of such contract, and which, in either
\n case, cannot be canceled by the Company or any
\n Subsidiary without penalty or further payment and
\n without more than 90 days’ notice;<\/p>\n
(ii) all broker, distributor, reseller, dealer,
\n manufacturer’s representative, franchise, agency,
\n sales promotion, market research, marketing
\n consulting and advertising contracts and agreements
\n to which the Company or any Subsidiary is a party and
\n which (A) is likely to involve consideration of more
\n than $100,000, in the aggregate, during the calendar
\n year ending December 31, 2000, (B) is likely to
\n involve consideration of more than $100,000, in the
\n aggregate, over the remaining term of such contract,
\n and which, in either case, cannot be canceled by the
\n Company or any Subsidiary without penalty or further
\n payment and without more than 90 days’ notice;<\/p>\n
(iii) all management contracts (excluding contracts for
\n employment) and contracts with other consultants,
\n including any contracts involving the payment of
\n royalties or other amounts calculated based upon the
\n revenues or income of the Company or any Subsidiary
\n or income or revenues related to any product of the
\n Company or any Subsidiary to which the Company or any
\n Subsidiary is a party and which (A) is likely to
\n involve consideration of more than $100,000, in the
\n aggregate, during the calendar year ending December
\n 31, 2000, (B) is likely to involve consideration of
\n more than $100,000, in the aggregate, over the
\n remaining term of such contract, and which, in either
\n case, cannot be canceled by the Company or any
\n Subsidiary without penalty or further payment and
\n without more than 90 days’ notice;
\n 30
\n 26<\/p>\n
(iv) all contracts and agreements evidencing indebtedness
\n for borrowed money which individually are in excess
\n of $25,000;<\/p>\n
(v) all contracts and agreements with any Governmental
\n Authority to which the Company or any Subsidiary is a
\n party;<\/p>\n
(vi) all contracts and agreements that limit, or purport
\n to limit, the ability of the Company or any
\n Subsidiary to compete in any line of business or with
\n any person or entity or in any geographic area or
\n during any period of time;<\/p>\n
(vii) all material contracts or arrangements that result in
\n any person or entity holding a power of attorney from
\n the Company or any Subsidiary that relates to the
\n Company, any Subsidiary or their respective
\n businesses;<\/p>\n
(viii) all contracts relating in whole or in part to
\n Intellectual Property pursuant to which the Company
\n or any Subsidiary obtains from a third party the
\n right to sell, distribute or otherwise display data
\n or works owned or controlled by such third party and
\n that is (I) likely to involve consideration of more
\n than $100,000 in the aggregate during the calendar
\n year ending December 31, 2000 or (II) that does not
\n involve any cash consideration but is otherwise
\n material to the Company or any Subsidiary;<\/p>\n
(ix) all contracts relating in whole or in part to
\n Intellectual Property pursuant to which the Company
\n or any Subsidiary grants to a third party the right
\n to sell, distribute or otherwise display data or
\n works owned or controlled by the Company or any
\n Subsidiary and that is (I) likely to involve
\n consideration of more than $100,000 in the aggregate
\n during the calendar year ending December 31, 2000 or
\n (II) that does not involve any cash consideration but
\n is otherwise material to the Company or any
\n Subsidiary; and<\/p>\n
(x) all contracts for employment required to be listed in
\n Section 4.10 of the Disclosure Schedule; and<\/p>\n
(xi) all other contracts and agreements, whether or not
\n made in the ordinary course of business, which are
\n material to the Company , any Subsidiary or the
\n conduct of their respective businesses, or the
\n absence of which would prevent or materially delay
\n consummation of the Offer or the Merger or otherwise
\n prevent or materially delay the Company from
\n performing its obligations under this Agreement or
\n would have a Material Adverse Effect.<\/p>\n
(b) Except as would not prevent or materially delay
\nconsummation of the Offer or the Merger or otherwise prevent or materially delay
\nthe Company from performing its obligations under this Agreement and would not
\nhave a Material Adverse Effect and except as
\n 31
\n 27<\/p>\n
set forth in Section 4.19(b) of the Disclosure Schedule, (i) each Material
\nContract is a legal, valid and binding agreement, and none of the Material
\nContracts is in default by its terms or has been canceled by the other party;
\n(ii) to the Company’s knowledge, no other party is in breach or violation of, or
\ndefault under, any Material Contract; (iii) the Company and the Subsidiaries are
\nnot in receipt of any claim of default under any such agreement; and (iv)
\nneither the execution of this Agreement nor the consummation of any Transaction
\nshall constitute default, give rise to cancellation rights, or otherwise
\nadversely affect any of the Company’s rights under any Material Contract. The
\nCompany has furnished or made available to Parent true and complete copies of
\nall Material Contracts, including any amendments thereto.<\/p>\n
SECTION 4.20. Insurance. (a) Section 4.20(a) of the Disclosure
\nSchedule sets forth, with respect to each insurance policy under which the
\nCompany or any Subsidiary is insured, a named insured or otherwise the principal
\nbeneficiary of coverage which is currently in effect, (i) the names of the
\ninsurer, the principal insured and each named insured, (ii) the policy number,
\n(iii) the period, scope and amount of coverage and (iv) the premium charged.<\/p>\n
(b) With respect to each such insurance policy: (i) the policy
\nis legal, valid, binding and enforceable in accordance with its terms and is in
\nfull force and effect; (ii) neither the Company nor any Subsidiary is in
\nmaterial breach or default (including any such breach or default with respect to
\nthe payment of premiums or the giving of notice), and, to the knowledge of the
\nCompany, no event has occurred which, with notice or the lapse of time, would
\nconstitute such a breach or default, or permit termination or modification,
\nunder the policy; and (iii) to the knowledge of the Company, no insurer on the
\npolicy has been declared insolvent or placed in receivership, conservatorship or
\nliquidation.<\/p>\n
(c) At no time subsequent to January 1, 1997 has the Company
\nor any Subsidiary (i) been denied any insurance or indemnity bond coverage which
\nit has requested, (ii) made any material reduction in the scope or amount of its
\ninsurance coverage, or (iii) received notice from any of its insurance carriers
\nthat any insurance premiums will be subject to increase in an amount materially
\ndisproportionate to the amount of the increases with respect thereto (or with
\nrespect to similar insurance) in prior years or that any insurance coverage
\nlisted in Section 4.20(a) of the Disclosure Schedule will not be available in
\nthe future substantially on the same terms as are now in effect.<\/p>\n
SECTION 4.21. Brokers. No broker, finder or investment banker
\n(other than Piper Jaffray) is entitled to any brokerage, finder’s or other fee
\nor commission in connection with the Transactions based upon arrangements made
\nby or on behalf of the Company. The Company has heretofore furnished to Parent a
\ncomplete and correct copy of all agreements between the Company and Piper
\nJaffray pursuant to which such firm would be entitled to any payment relating to
\nthe Transactions.
\n 32
\n 28<\/p>\n
ARTICLE V<\/p>\n
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER<\/p>\n
As an inducement to the Company to enter into this Agreement,
\nParent and Purchaser hereby, jointly and severally, represent and warrant to the
\nCompany that:<\/p>\n
SECTION 5.01. Corporate Organization. Each of Parent and
\nPurchaser is a corporation duly organized, validly existing and in good standing
\nunder the laws of the State of Delaware and has the requisite corporate power
\nand authority and all necessary governmental approvals to own, lease and operate
\nits properties and to carry on its business as it is now being conducted.<\/p>\n
SECTION 5.02. Authority Relative to This Agreement. Each of
\nParent and Purchaser has all necessary corporate power and authority to execute
\nand deliver this Agreement, to perform its obligations hereunder and to
\nconsummate the Transactions. The execution and delivery of this Agreement by
\nParent and Purchaser and the consummation by Parent and Purchaser of the
\nTransactions have been duly and validly authorized by all necessary corporate
\naction, and no other corporate proceedings on the part of Parent or Purchaser
\nare necessary to authorize this Agreement or to consummate the Transactions
\n(other than, with respect to the Merger, the filing and recordation of
\nappropriate merger documents as required by Delaware Law and Missouri Law). This
\nAgreement has been duly and validly executed and delivered by Parent and
\nPurchaser and, assuming due authorization, execution and delivery by the
\nCompany, constitutes a legal, valid and binding obligation of each of Parent and
\nPurchaser enforceable against each of Parent and Purchaser in accordance with
\nits terms.<\/p>\n
SECTION 5.03. No Conflict; Required Filings and Consents. (a)
\nThe execution and delivery of this Agreement by Parent and Purchaser do not, and
\nthe performance of this Agreement by Parent and Purchaser will not, (i) conflict
\nwith or violate the Certificate of Incorporation or By-laws of either Parent or
\nPurchaser, (ii) assuming that all consents, approvals, authorizations and other
\nactions described in Section 5.03(b) have been obtained and all filings and
\nobligations described in Section 5.03(b) have been made, conflict with or
\nviolate any law, rule, regulation, order, judgment or decree applicable to
\nParent or Purchaser or by which any property or asset of either of them is bound
\nor affected, or (iii) result in any breach of, or constitute a default (or an
\nevent which, with notice or lapse of time or both, would become a default)
\nunder, or give to others any rights of termination, amendment, acceleration or
\ncancellation of, or result in the creation of a lien or other encumbrance on any
\nproperty or asset of Parent or Purchaser pursuant to, any note, bond, mortgage,
\nindenture, contract, agreement, lease, license, permit, franchise or other
\ninstrument or obligation to which Parent or Purchaser is a party or by which
\nParent or Purchaser or any property or asset of either of them is bound or
\n 33
\n 29<\/p>\n
affected, except, with respect to clauses (ii) and (iii), for any such
\nconflicts, violations, breaches, defaults or other occurrences which would not
\nprevent or materially delay consummation of the Transactions or otherwise
\nprevent Parent and Purchaser from performing their material obligations under
\nthis Agreement.<\/p>\n
(b) The execution and delivery of this Agreement by Parent and
\nPurchaser do not, and the performance of this Agreement by Parent and Purchaser
\nwill not, require any consent, approval, authorization or permit of, or filing
\nwith, or notification to, any Governmental Authority, except (i) for applicable
\nrequirements, if any, of the Exchange Act, Blue Sky Laws and state takeover
\nlaws, the HSR Act and filing and recordation of appropriate merger documents as
\nrequired by Delaware Law and Missouri Law, and (ii) where the failure to obtain
\nsuch consents, approvals, authorizations or permits, or to make such filings or
\nnotifications, would not prevent or materially delay consummation of the
\nTransactions, or otherwise prevent Parent or Purchaser from performing their
\nmaterial obligations under this Agreement.<\/p>\n
SECTION 5.04. Financing. Parent has and will have through the
\nEffective Time sufficient funds to permit Purchaser to consummate all the
\nTransactions, including, without limitation, acquiring all the outstanding
\nShares in the Offer and the Merger.<\/p>\n
SECTION 5.05. Offer Documents; Proxy Statement. The Offer
\nDocuments shall not, at the time the Offer Documents are filed with the SEC or
\nare first published, sent or given to stockholders of the Company, as the case
\nmay be, contain any untrue statement of a material fact or omit to state any
\nmaterial fact required to be stated therein or necessary in order to make the
\nstatements made therein, in the light of the circumstances under which they were
\nmade, not misleading. The information supplied by Parent for inclusion in the
\nProxy Statement shall not, at the date the Proxy Statement (or any amendment or
\nsupplement thereto) is first mailed to stockholders of the Company, at the time
\nof the Stockholders’ Meeting or at the Effective Time, contain any untrue
\nstatement of a material fact, or omit to state any material fact required to be
\nstated therein or necessary in order to make the statements therein, in light of
\nthe circumstances under which they were made, not false or misleading, or
\nnecessary to correct any statement in any earlier communication with respect to
\nthe solicitation of proxies for the Stockholders’ Meeting which shall have
\nbecome false or misleading. Notwithstanding the foregoing, Parent and Purchaser
\nmake no representation or warranty with respect to any information supplied by
\nthe Company or any of its representatives for inclusion in any of the foregoing
\ndocuments or the Offer Documents. The Offer Documents shall comply in all
\nmaterial respects as to form with the requirements of the Exchange Act and the
\nrules and regulations thereunder.<\/p>\n
SECTION 5.06. Brokers. No broker, finder or investment banker
\n(other than Scott-Macon Ltd., whose fees shall be paid by Parent) is entitled to
\nany brokerage, finder’s or other fee or commission in connection with the
\nTransactions based upon arrangements made by or on behalf of Parent or
\nPurchaser.
\n 34
\n 30<\/p>\n
SECTION 5.07. Absence of Litigation. There is no Action
\npending or, to the knowledge of Parent and the Purchaser, threatened against
\nParent or the Purchaser, or any property or asset of Parent or the Purchaser,
\nbefore any Governmental Authority that seeks to materially delay or prevent the
\nconsummation of any Transaction. Neither Parent nor the Purchaser nor any
\nproperty or asset of Parent or the Purchaser is subject to any continuing order
\nof, consent decree, settlement agreement or similar written agreement with, or,
\nto the knowledge of Parent or the Purchaser, continuing investigation by, any
\nGovernmental Authority, or any order, writ, judgment, injunction, decree,
\ndetermination or award of any Governmental Authority that would prevent or
\nmaterially delay consummation of the Offer or the Merger or otherwise prevent or
\nmaterially delay Parent or the Purchaser from performing its obligations under
\nthis Agreement.<\/p>\n
ARTICLE VI<\/p>\n
CONDUCT OF BUSINESS PENDING THE MERGER<\/p>\n
SECTION 6.01. Conduct of Business by the Company Pending the
\nMerger. The Company agrees that, between the date of this Agreement and the
\nEffective Time, unless Parent shall otherwise agree in writing, which consent
\nwill not be unreasonably withheld, the businesses of the Company and the
\nSubsidiary shall be conducted only in, and the Company and the Subsidiaries
\nshall not take any action except in, the ordinary course of business and in a
\nmanner consistent with past practice; and the Company shall use its reasonable
\nbest efforts to preserve substantially intact the business organization of the
\nCompany and the Subsidiaries, to keep available the services of the current
\nofficers, employees and consultants of the Company and the Subsidiaries and to
\npreserve the current relationships of the Company and the Subsidiaries with
\ncustomers, suppliers and other persons with which the Company or any Subsidiary
\nhas significant business relations. By way of amplification and not limitation,
\nexcept as expressly contemplated by this Agreement and Section 6.01 of the
\nDisclosure Schedule, neither the Company nor any Subsidiary shall, between the
\ndate of this Agreement and the Effective Time, directly or indirectly, do, or
\npropose to do, any of the following without the prior written consent of Parent,
\nwhich consent will not be unreasonably withheld:<\/p>\n
(a) amend or otherwise change its Articles of Incorporation or
\n By-laws or equivalent organizational documents;<\/p>\n
(b) issue, sell, pledge, dispose of, grant, encumber, or
\n authorize the issuance, sale, pledge, disposition, grant or encumbrance
\n of, (i) any shares of any class of capital stock of the Company or any
\n Subsidiary, or any options, warrants, convertible securities or other
\n rights of any kind to acquire any shares of such capital stock, or any
\n other
\n 35
\n 31<\/p>\n
ownership interest (including, without limitation, any phantom
\n interest), of the Company or any Subsidiary (except for the issuance of
\n a maximum of 631,660 Shares issuable pursuant to (A) options
\n outstanding on the date hereof under the Company Stock Option Plans and
\n other agreements, (B) the Wave Technologies, Inc, Employee Stock
\n Purchase Plan and (C) the Wave Technologies, Inc. Profit Sharing and
\n 401(k) Plan) or (ii) any assets of the Company or any Subsidiary,
\n except in the ordinary course of business and in a manner consistent
\n with past practice;<\/p>\n
(c) declare, set aside, make or pay any dividend or other
\n distribution, payable in cash, stock, property or otherwise, with
\n respect to any of its capital stock;<\/p>\n
(d) reclassify, combine, split, subdivide or redeem, or
\n purchase or otherwise acquire, directly or indirectly, any of its
\n capital stock;<\/p>\n
(e) (i) acquire (including, without limitation, by merger,
\n consolidation, or acquisition of stock or assets or any other business
\n combination) any corporation, partnership, other business organization
\n or any division thereof or any material amount of assets; (ii) incur
\n any indebtedness for borrowed money or issue any debt securities or
\n assume, guarantee or endorse, or otherwise become responsible for, the
\n obligations of any person, or make any loans or advances, except in the
\n ordinary course of business and consistent with past practice; (iii)
\n enter into any contract or agreement other than in the ordinary course
\n of business and consistent with past practice; (iv) authorize, or make
\n any commitment with respect to, any single capital expenditure which is
\n in excess of $50,000 or capital expenditures which are, in the
\n aggregate, in excess of $100,000 for the Company and the Subsidiaries
\n taken as a whole; or (v) enter into or amend any contract, agreement,
\n commitment or arrangement with respect to any matter set forth in this
\n Section 6.01(e), except in the ordinary course of business and
\n consistent with past practice;<\/p>\n
(f) increase the compensation payable or to become payable or
\n the benefits provided to its directors, officers or employees, except
\n for increases in the ordinary course of business and consistent with
\n past practice in salaries or wages of employees of the Company or any
\n Subsidiary who are not directors or officers of the Company, or grant
\n any severance or termination pay to, or enter into any employment or
\n severance agreement with, any director, officer or other employee of
\n the Company or of any Subsidiary, or establish, adopt, enter into or
\n amend any collective bargaining, bonus, profit-sharing, thrift,
\n compensation, stock option, restricted stock, pension, retirement,
\n deferred compensation, employment, termination, severance or other
\n plan, agreement, trust, fund, policy or arrangement for the benefit of
\n any director, officer or employee;
\n 36
\n 32<\/p>\n
(g) take any action, other than reasonable and usual actions
\n in the ordinary course of business and consistent with past practice,
\n with respect to accounting policies or procedures;<\/p>\n
(h) make any tax election or settle or compromise any material
\n United States federal, state, local or United Kingdom or other
\n non-United States income tax liability;<\/p>\n
(i) pay, discharge or satisfy any claim, liability or
\n obligation (absolute, accrued, asserted or unasserted, contingent or
\n otherwise), other than the payment, discharge or satisfaction, in the
\n ordinary course of business and consistent with past practice, of
\n liabilities reflected or reserved against in the 1999 Balance Sheet or
\n subsequently incurred in the ordinary course of business and consistent
\n with past practice;<\/p>\n
(j) amend, modify or consent to the termination of any
\n Material Contract, or amend, waive, modify or consent to the
\n termination of the Company’s or any Subsidiary’s rights thereunder,
\n other than in the ordinary course of business and consistent with past
\n practice;<\/p>\n
(k) commence or settle any Action; or<\/p>\n
(l) announce an intention, enter into any formal or informal
\n agreement or otherwise make a commitment, to do any of the foregoing.<\/p>\n
ARTICLE VII<\/p>\n
ADDITIONAL AGREEMENTS<\/p>\n
SECTION 7.01. Stockholders’ Meeting. (a) If required by
\napplicable law in order to consummate the Merger, the Company, acting through
\nthe Board, shall, in accordance with applicable law and the Company’s Articles
\nof Incorporation and By-laws, (i) duly call, give notice of, convene and hold an
\nannual or special meeting of its stockholders as promptly as practicable
\nfollowing consummation of the Offer for the purpose of considering and taking
\naction on this Agreement and the Transactions (the “Stockholders’ Meeting”) and
\n(ii) (A) except as provided in Section 7.05(b), include in the Proxy Statement,
\nand not subsequently withdraw or modify in any manner adverse to Purchaser or
\nParent, the unanimous recommendation of the Board that the stockholders of the
\nCompany approve and adopt this Agreement and the Transactions and (B) use its
\nbest efforts to obtain such approval and adoption. At the Stockholders’ Meeting,
\nParent and Purchaser shall cause all Shares then owned by them and their
\n 37
\n 33<\/p>\n
subsidiaries to be voted in favor of the approval and adoption of this Agreement
\nand the Transactions.<\/p>\n
(b) Notwithstanding the foregoing, in the event that Purchaser
\nshall acquire at least 90% of the then outstanding Shares, the parties shall
\ntake all necessary and appropriate action to cause the Merger to become
\neffective, in accordance with Section 351.447 of Missouri Law, as promptly as
\nreasonably practicable after such acquisition, without a meeting of the
\nstockholders of the Company.<\/p>\n
SECTION 7.02. Proxy Statement. If approval of the Company’s
\nshareholders is required by applicable law to consummate the Merger, promptly
\nfollowing consummation of the Offer, the Company shall file the Proxy Statement
\nwith the SEC under the Exchange Act, and shall use its best efforts to have the
\nProxy Statement cleared by the SEC. Parent, Purchaser and the Company shall
\ncooperate with each other in the preparation of the Proxy Statement, and the
\nCompany shall notify Parent of the receipt of any comments of the SEC with
\nrespect to the Proxy Statement and of any requests by the SEC for any amendment
\nor supplement thereto or for additional information and shall provide to Parent
\npromptly copies of all correspondence between the Company or any representative
\nof the Company and the SEC. The Company shall give Parent and its counsel the
\nopportunity to review the Proxy Statement, including all amendments and
\nsupplements thereto, prior to its being filed with the SEC and shall give Parent
\nand its counsel the opportunity to review all responses to requests for
\nadditional information and replies to comments prior to their being filed with,
\nor sent to, the SEC. Each of the Company, Parent and Purchaser agrees to use its
\nreasonable best efforts, after consultation with the other parties hereto, to
\nrespond promptly to all such comments of and requests by the SEC and to cause
\nthe Proxy Statement and all required amendments and supplements thereto to be
\nmailed to the holders of Shares entitled to vote at the Stockholders’ Meeting at
\nthe earliest practicable time.<\/p>\n
SECTION 7.03. Company Board Representation; Section 14(f). (a)
\nPromptly upon the purchase by Purchaser of Shares pursuant to the Offer and from
\ntime to time thereafter, Purchaser shall be entitled to designate up to such
\nnumber of directors, rounded up to the next whole number, on the Board as shall
\ngive Purchaser representation on the Board equal to the product of the total
\nnumber of directors on the Board (giving effect to the directors elected
\npursuant to this sentence) multiplied by the percentage that the aggregate
\nnumber of Shares beneficially owned by Purchaser or any affiliate of Purchaser
\nfollowing such purchase bears to the total number of Shares then outstanding,
\nand the Company shall, at such time, promptly take all actions necessary to
\ncause Purchaser’s designees to be elected as directors of the Company, including
\nincreasing the size of the Board or securing the resignations of incumbent
\ndirectors, or both. At such times, the Company shall use its reasonable best
\nefforts to cause persons designated by Purchaser to constitute the same
\npercentage as persons designated by Purchaser shall constitute of the Board of
\n(i) each committee of the Board, (ii) each board of directors of each
\nSubsidiary, and (iii) each committee of each such board, in each case only to
\nthe extent
\n 38
\n 34<\/p>\n
permitted by applicable law. Notwithstanding the foregoing, until the Effective
\nTime, the Company shall use its reasonable best efforts to ensure that at least
\ntwo members of the Board and each committee of the Board and such boards and
\ncommittees of the Subsidiaries, as of the date hereof, who are not employees of
\nthe Company shall remain members of the Board and of such boards and committees.<\/p>\n
(b) The Company shall promptly take all actions required
\npursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
\nthereunder to fulfill its obligations under this Section 7.03, and shall include
\nin the Schedule 14D-9 such information with respect to the Company and its
\nofficers and directors as is required under Section 14(f) and Rule 14f-1 to
\nfulfill such obligations. Parent or Purchaser shall supply to the Company, and
\nbe solely responsible for, any information with respect to either of them and
\ntheir nominees, officers, directors and affiliates required by such Section
\n14(f) and Rule 14f-1.<\/p>\n
(c) Following the election of designees of Purchaser pursuant
\nto this Section 7.03, prior to the Effective Time, any amendment of this
\nAgreement or the Certificate of Incorporation or By-laws of the Company, any
\ntermination of this Agreement by the Company, any extension by the Company of
\nthe time for the performance of any of the obligations or other acts of Parent
\nor Purchaser, or waiver of any of the Company’s rights hereunder, shall require
\nthe concurrence of a majority of the directors of the Company then in office who
\nneither were designated by Purchaser nor are employees of the Company or any
\nSubsidiary.<\/p>\n
SECTION 7.04. Access to Information; Confidentiality. (a) From
\nthe date hereof until the Effective Time, the Company shall, and shall cause the
\nSubsidiaries and the officers, directors, employees, auditors and agents of the
\nCompany and the Subsidiaries to, afford the officers, employees and agents of
\nParent and Purchaser complete access at all reasonable times to the officers,
\nemployees, agents, properties, offices, plants and other facilities, books and
\nrecords of the Company and each Subsidiary, and shall furnish Parent and
\nPurchaser with such financial, operating and other data and information as
\nParent or Purchaser, through its officers, employees or agents, may reasonably
\nrequest.<\/p>\n
(b) All information obtained by Parent or Purchaser pursuant
\nto this Section 7.04 shall be kept confidential in accordance with the
\nconfidentiality agreement, dated January 13, 2000, as subsequently amended (the
\n“Confidentiality Agreement”), between Parent and the Company.<\/p>\n
(c) No investigation pursuant to this Section 7.04 shall
\naffect any representation or warranty in this Agreement of any party hereto or
\nany condition to the obligations of the parties hereto or any condition to the
\nOffer.<\/p>\n
SECTION 7.05. No Solicitation of Transactions. (a) Neither the
\nCompany nor any Subsidiary shall, directly or indirectly, through any officer,
\ndirector, agent or otherwise,
\n 39
\n 35<\/p>\n
(i) solicit, initiate or encourage the submission of, any Acquisition Proposal
\n(as defined below) or (ii) except as required by the fiduciary duties of the
\nBoard under applicable law after having received advice from outside legal
\ncounsel (x) participate in any discussions or negotiations regarding or (y)
\nafter also entering into a customary confidentiality agreement on terms no less
\nfavorable to the Company than those contained in the Confidentiality Agreement,
\nfurnish to any person, any information with respect to, or otherwise cooperate
\nin any way with respect to, or assist or participate in, facilitate or
\nencourage, any unsolicited proposal that constitutes, or may reasonably be
\nexpected to lead to, a Superior Proposal.<\/p>\n
(b) Except as set forth in this Section 7.05(b), neither the
\nBoard nor any committee thereof shall (i) withdraw or modify, or propose to
\nwithdraw or modify, in a manner adverse to Parent or Purchaser, the approval or
\nrecommendation by the Board or any such committee of this Agreement, the Offer,
\nthe Merger or any other Transaction, (ii) approve or recommend, or propose to
\napprove or recommend, any Acquisition Proposal or (iii) enter into any agreement
\nwith respect to any Acquisition Proposal. Notwithstanding the foregoing, in the
\nevent that, prior to the time of acceptance for payment of Shares pursuant to
\nthe Offer, the Board determines in good faith that it is required to do so by
\nits fiduciary duties under applicable law after having received advice from
\noutside legal counsel, the Board may withdraw or modify its approval or
\nrecommendation of the Offer and the Merger, but only to terminate this Agreement
\nin accordance with Section 9.01(d)(ii) (and, concurrently with such termination,
\ncause the Company to enter into an agreement with respect to a Superior
\nProposal).<\/p>\n
(c) The Company shall, and shall direct or cause its
\ndirectors, officers, employees, representatives and agents to, immediately cease
\nand cause to be terminated any discussions or negotiations with any parties that
\nmay be ongoing with respect to any Acquisition Proposal.<\/p>\n
(d) The Company shall promptly advise Parent orally (to be
\nconfirmed as soon as reasonably practicable in writing) of (i) any Acquisition
\nProposal or any request for information with respect to any Acquisition
\nProposal, the material terms and conditions of such Acquisition Proposal or
\nrequest and the identity of the person making such Acquisition Proposal or
\nrequest and (ii) any changes in any such Acquisition Proposal or request.<\/p>\n
(e) Nothing contained in this Section 7.05 shall prohibit the
\nCompany from taking and disclosing to its stockholders a position contemplated
\nby Rule 14e-2(a) promulgated under the Exchange Act or from making any
\ndisclosure to the Company’s stockholders, if the Board determines in good faith
\nthat it is required to do so by its fiduciary duties under applicable law after
\nhaving received advice from outside legal counsel; provided, however, that
\nneither the Company nor the Board nor any committee thereof shall, except as
\npermitted by Section 7.05(b), withdraw or modify, or propose publicly to
\nwithdraw or modify, its position with respect to this
\n 40
\n 36<\/p>\n
Agreement, the Offer, the Merger or any other Transaction or to approve or
\nrecommend, or propose publicly to approve or recommend, an Acquisition Proposal.<\/p>\n
(f) The Company agrees, except as required by the Board’s
\nfiduciary duties under applicable law after having received advice from outside
\nlegal counsel, not to release any third party from, or waive any provision of,
\nany confidentiality or standstill agreement to which the Company is a party.<\/p>\n
SECTION 7.06. Employee Benefits Matters. From and after the
\nEffective Time, Parent shall cause the Surviving Corporation and its
\nsubsidiaries to honor in accordance with their terms, all contracts, agreements,
\narrangements, policies, plans and commitments of the Company and the
\nSubsidiaries as in effect immediately prior to the Effective Time that are
\napplicable to any current or former employees or directors of the Company or any
\nSubsidiary. Employees of the Company or any Subsidiary shall receive credit for
\npurposes of eligibility to participate and vesting (but not for benefit
\naccruals) under any employee benefit plan, program or arrangement established or
\nmaintained by the Surviving Corporation or any of its subsidiaries for service
\naccrued or deemed accrued prior to the Effective Time with the Company or any
\nSubsidiary; provided, however, that such crediting of service shall not operate
\nto duplicate any benefit or the funding of any such benefit.<\/p>\n
SECTION 7.07. Directors’ and Officers’ Indemnification and
\nInsurance. (a) The By-laws of the Surviving Corporation shall contain provisions
\nno less favorable with respect to indemnification than are set forth in Article
\nVII of the By-laws of the Company, which provisions shall not be amended,
\nrepealed or otherwise modified for a period of six years from the Effective Time
\nin any manner that would affect adversely the rights thereunder of individuals
\nwho, at or prior to the Effective Time, were directors, officers, employees,
\nfiduciaries or agents of the Company, unless such modification shall be required
\nby law.<\/p>\n
(b) The Surviving Corporation shall use its reasonable best
\nefforts to maintain in effect for three years from the Effective Time, if
\navailable, the current directors’ and officers’ liability insurance policies
\nmaintained by the Company (provided that the Surviving Corporation may
\nsubstitute therefor policies of at least the same coverage containing terms and
\nconditions that are not materially less favorable) with respect to matters
\noccurring prior to the Effective Time; provided, however, that in no event shall
\nthe Surviving Corporation be required to expend pursuant to this Section 7.07(b)
\nmore than an amount per year equal to 200% of current annual premiums paid by
\nthe Company for such insurance (which premiums the Company represents and
\nwarrants to be $35,000 in the aggregate).<\/p>\n
(c) In the event the Company or the Surviving Corporation or
\nany of their respective successors or assigns (i) consolidates with or merges
\ninto any other person and shall not be the continuing or surviving corporation
\nor entity of such consolidation or merger or
\n 41
\n 37<\/p>\n
(ii) transfers all or substantially all of its properties and assets to any
\nperson, then, and in each such case, proper provision shall be made so that the
\nsuccessors and assigns of the Company or the Surviving Corporation, as the case
\nmay be, or at Parent’s option, Parent, shall assume the obligations set forth in
\nthis Section 7.07.<\/p>\n
SECTION 7.08. Notification of Certain Matters. The Company
\nshall give prompt notice to Parent, and Parent shall give prompt notice to the
\nCompany, of (a) the occurrence, or non-occurrence, of any event the occurrence,
\nor non-occurrence, of which reasonably could be expected to cause any
\nrepresentation or warranty contained in this Agreement to be untrue or
\ninaccurate in any material respect and (b) any failure of the Company, Parent or
\nPurchaser, as the case may be, to comply with or satisfy any covenant or
\nagreement to be complied with or satisfied by it hereunder; provided, however,
\nthat the delivery of any notice pursuant to this Section 7.08 shall not limit or
\notherwise affect the remedies available hereunder to the party receiving such
\nnotice.<\/p>\n
SECTION 7.09. Further Action; Reasonable Best Efforts. (a)
\nUpon the terms and subject to the conditions hereof, each of the parties hereto
\nshall (i) make promptly its respective filings, and thereafter make any other
\nrequired submissions, under the HSR Act with respect to the Transactions and
\n(ii) use its reasonable best efforts to take, or cause to be taken, all
\nappropriate action, and to do, or cause to be done, all things necessary, proper
\nor advisable under applicable laws and regulations to consummate and make
\neffective the Transactions, including, without limitation, using its reasonable
\nbest efforts to obtain all Permits, consents, approvals, authorizations,
\nqualifications and orders of Governmental Authorities and parties to contracts
\nwith the Company and the Subsidiaries as are necessary for the consummation of
\nthe Transactions and to fulfill the conditions to the Offer and the Merger;
\nprovided that neither the Company, Purchaser nor Parent will be required by this
\nSection 7.09 to take any action, including entering into any consent decree,
\nhold separate orders or other arrangements, that (A) requires the divestiture of
\nany assets of any of the Purchaser, Parent, Company or any of their respective
\nsubsidiaries or (B) limits Parent’s freedom of action with respect to, or its
\nability to retain, the Company and the Subsidiaries or any portion thereof or
\nany of Parent’s or its affiliates’ other assets or businesses. In case, at any
\ntime after the Effective Time, any further action is necessary or desirable to
\ncarry out the purposes of this Agreement, the proper officers and directors of
\neach party to this Agreement shall use their reasonable best efforts to take all
\nsuch action. Parent or the Purchaser will pay all fees associated with the HSR
\nsubmission.<\/p>\n
(b) Each of the parties hereto agrees to cooperate and use its
\nreasonable best efforts vigorously to contest and resist any Action, including
\nadministrative or judicial Action, and to have vacated, lifted, reversed or
\noverturned any decree, judgment, injunction or other order (whether temporary,
\npreliminary or permanent) that is in effect and that restricts, prevents or
\nprohibits consummation of the Transactions, including, without limitation, by
\nvigorously pursuing all available avenues of administrative and judicial appeal.
\n 42
\n 38<\/p>\n
SECTION 7.10. Public Announcements. Parent, the Purchaser and
\nthe Company agree that no public release or announcement concerning the
\nTransactions, the Offer or the Merger shall be issued by any party without the
\nprior consent of the other party (which consent shall not be unreasonably
\nwithheld), except as such release or announcement may be required by Law or the
\nrules or regulations of any United States or non-United States securities
\nexchange, in which case the party required to make the release or announcement
\nshall use its best efforts to allow the other party reasonable time to comment
\non such release or announcement in advance of such issuance.<\/p>\n
ARTICLE VIII<\/p>\n
CONDITIONS TO THE MERGER<\/p>\n
SECTION 8.01. Conditions to the Merger. The obligations of
\neach party to effect the Merger shall be subject to the satisfaction, at or
\nprior to the Effective Time, of the following conditions:<\/p>\n
(a) Stockholder Approval. If and to the extent required by
\n Missouri Law, this Agreement and the Transactions shall have been
\n approved and adopted by the affirmative vote of the stockholders of the
\n Company;<\/p>\n
(b) HSR Act. Any waiting period (and any extension thereof)
\n applicable to the consummation of the Merger under the HSR Act shall
\n have expired or been terminated;<\/p>\n
(c) No Order. No Governmental Authority shall have enacted,
\n issued, promulgated, enforced or entered any Law (whether temporary,
\n preliminary or permanent) which is then in effect and has the effect of
\n making the acquisition of Shares by Parent or Purchaser or any
\n affiliate of either of them illegal or otherwise restricting,
\n preventing or prohibiting consummation of the Transactions; and<\/p>\n
(d) Offer. Purchaser or its permitted assignee shall have
\n purchased all Shares validly tendered and not withdrawn pursuant to the
\n Offer.
\n 43
\n 39<\/p>\n
ARTICLE IX<\/p>\n
TERMINATION, AMENDMENT AND WAIVER<\/p>\n
SECTION 9.01. Termination. This Agreement may be terminated
\nand the Merger and the other Transactions may be abandoned at any time prior to
\nthe Effective Time, notwithstanding any requisite approval and adoption of this
\nAgreement and the Transactions by the stockholders of the Company:<\/p>\n
(a) By mutual written consent of each of Parent, Purchaser and
\n the Company duly authorized by the Boards of Directors of Parent,
\n Purchaser and the Company; or<\/p>\n
(b) By either Parent, Purchaser or the Company if (i) the
\n Effective Time shall not have occurred on or before June 30, 2000;
\n provided, however, that the right to terminate this Agreement under
\n this Section 9.01(b) shall not be available to any party whose failure
\n to fulfill any obligation under this Agreement has been the cause of,
\n or resulted in, the failure of the Effective Time to occur on or before
\n such date or (ii) any Governmental Authority shall have enacted,
\n issued, promulgated, enforced or entered any injunction, order, decree
\n or ruling (whether temporary, preliminary or permanent) which has
\n become final and nonappealable and has the effect of making
\n consummation of the Offer or the Merger illegal or otherwise preventing
\n or prohibiting consummation of the Offer or the Merger; or<\/p>\n
(c) By Parent if (i) due to an occurrence or circumstance that
\n would result in a failure to satisfy any condition set forth in Annex A
\n hereto, Purchaser shall have (A) failed to commence the Offer within 10
\n business days following the date of this Agreement, (B) terminated the
\n Offer without having accepted any Shares for payment thereunder or (C)
\n failed to accept Shares for payment pursuant to the Offer within 90
\n days following the commencement of the Offer (provided, however, that
\n the applicable time period specified in (A) and (C) above shall be
\n extended until the earlier to occur of (x) the fifth business day
\n following expiration or termination of any applicable waiting period
\n under the HSR Act and (y) June 30, 2000, unless such action or inaction
\n under (A), (B) or (C) shall have been caused by or resulted from the
\n failure of Parent or Purchaser to perform, in any material respect, any
\n of their material covenants or agreements contained in this Agreement,
\n or the material breach by Parent or Purchaser of any of their material
\n representations or warranties contained in this Agreement or (ii) prior
\n to the purchase of Shares pursuant to the Offer, the Board or any
\n committee thereof shall have withdrawn or modified in a manner adverse
\n to Purchaser or Parent its approval or recommendation of this
\n Agreement, the Offer, the Merger or any other Transaction, or shall
\n have recommended or approved any Acquisition Proposal, or shall have
\n resolved to do any of the foregoing; or
\n 44
\n 40<\/p>\n
(d) By the Company, upon approval of the Board, if (i)
\n Purchaser shall have (A) failed to commence the Offer within 10
\n business days following the date of this Agreement, (B) terminated the
\n Offer without having accepted any Shares for payment thereunder or (C)
\n failed to accept Shares for payment pursuant to the Offer within 90
\n days following the commencement of the Offer (provided, however, that
\n the applicable time period specified in (A) and (C) above shall be
\n extended until the earlier to occur of (x) the fifth business day
\n following expiration or termination of any applicable waiting period
\n under the HSR Act and (y) June 30, 2000, unless such action or inaction
\n under (A), (B) or (C) shall have been caused by or resulted from the
\n failure of the Company to perform, in any material respect, any of its
\n material covenants or agreements contained in this Agreement or the
\n material breach by the Company of any of its material representations
\n or warranties contained in this Agreement or (ii) prior to the purchase
\n of Shares pursuant to the Offer, the Board determines in good faith
\n that it is required to do so by its fiduciary duties under applicable
\n law after having received advice from outside legal counsel in order to
\n enter into a definitive agreement with respect to a Superior Proposal,
\n upon three business days’ prior written notice to Parent, setting forth
\n in reasonable detail the identity of the person making, and the final
\n terms and conditions of, the Superior Proposal and after duly
\n considering any proposals that may be made by Parent during such three
\n business day period; provided, however, that any termination of this
\n Agreement pursuant to this Section 9.01(d)(ii) shall not be effective
\n until the Company has made full payment of all amounts provided under
\n Section 9.03.<\/p>\n
SECTION 9.02. Effect of Termination. In the event of the
\ntermination of this Agreement pursuant to Section 9.01, this Agreement shall
\nforthwith become void, and there shall be no liability on the part of any party
\nhereto, except (a) as set forth in Section 9.03 and (b) nothing herein shall
\nrelieve any party from liability for any breach hereof prior to the date of such
\ntermination; provided, however, that the Confidentiality Agreement shall survive
\nany termination of this Agreement.<\/p>\n
SECTION 9.03. Fees and Expenses. (a) In the event that<\/p>\n
(i) any person (including, without limitation, the Company or
\n any affiliate thereof), other than Parent or any affiliate of Parent,
\n shall have become the beneficial owner of more than 15% of the
\n then-outstanding Shares, and this Agreement shall have been terminated
\n pursuant to Section 9.01(b)(i), 9.01(c) or 9.01(d); or<\/p>\n
(ii) any person shall have commenced, publicly proposed or
\n communicated to the Company an Acquisition Proposal that is publicly
\n disclosed and (A) the Offer shall have remained open for at least 20
\n business days, (B) the Minimum Condition shall not have been satisfied,
\n (C) this Agreement shall have been terminated pursuant to
\n 45
\n 41<\/p>\n
Section 9.01 and (D) the Company enters into an agreement with respect
\n to an Acquisition Proposal, or an Acquisition Proposal is consummated,
\n in each case within 12 months after such termination of this Agreement;
\n or<\/p>\n
(iii) this Agreement is terminated (A) pursuant to (x) Section
\n 9.01(c)(ii) or 9.01(d)(ii) or (y) Section 9.01(c)(i) or 9.01(d)(i), to
\n the extent that the failure to commence, the termination or the failure
\n to accept any Shares for payment, as set forth in Section 9.01(c)(i) or
\n 9.01(d)(i), as the case may be, shall relate to the failure of the
\n Company to perform, in any material respect, any of its material
\n covenants or agreements contained in this Agreement or the knowing or
\n intentional breach by the Company of any of its material
\n representations or warranties contained in this Agreement and (B) the
\n Company enters into an agreement with respect to an Acquisition
\n Proposal or an Acquisition Proposal is consummated, in each case within
\n 12 months after such termination of this Agreement; or<\/p>\n
(iv) the Company enters into an agreement with respect to an
\n Acquisition Proposal that was commenced, publicly proposed or
\n communicated to the Company prior to the termination of this Agreement
\n pursuant to Section 9.01, or such an Acquisition Proposal is
\n consummated, in each case within 12 months after the termination of
\n this Agreement pursuant to Section 9.01, and the Company shall not
\n therefore have been required to pay the Fee to Parent pursuant to
\n Section 9.03(a)(i), 9.03(a)(ii) or 9.03(a)(iii);<\/p>\n
then, in any such event, the Company shall pay Parent promptly
\n(but in no event later than one business day after the first of such events
\nshall have occurred) a fee of $1.5 million (the “Fee”), which amount shall be
\npayable in immediately available funds, plus all out-of-pocket expenses and fees
\nup to $250,000, in the aggregate (including, without limitation, all fees of
\ncounsel, accountants, experts and consultants to Parent and Purchaser, the fees
\nassociated with the HSR submission, and all printing and advertising expenses
\nand filing fees) actually incurred or accrued by either of them or on their
\nbehalf in connection with the Transactions (all the foregoing being referred to
\nherein collectively as the “Expenses”).<\/p>\n
(b) Except as set forth in Section 7.09(a) and this Section
\n9.03, all costs and expenses incurred in connection with this Agreement and the
\nTransactions shall be paid by the party incurring such expenses, whether or not
\nany Transaction is consummated.<\/p>\n
(c) In the event that the Company shall fail to pay the Fee or
\nany Expenses when due, the term “Expenses” shall be deemed to include the costs
\nand expenses actually incurred or accrued by Parent and Purchaser (including,
\nwithout limitation, fees and expenses of counsel) in connection with the
\ncollection under and enforcement of this Section 9.03, together with interest on
\nsuch unpaid Fee and Expenses, commencing on the date that the Fee or such
\n 46
\n 42<\/p>\n
Expenses became due, at a rate equal to the rate of interest publicly announced
\nby Citibank, N.A., from time to time, in the City of New York, as such bank’s
\nBase Rate plus 1%.<\/p>\n
SECTION 9.04. Amendment. Subject to Section 7.03, this
\nAgreement may be amended by the parties hereto by action taken by or on behalf
\nof their respective Boards of Directors at any time prior to the Effective Time;
\nprovided, however, that, after the approval and adoption of this Agreement and
\nthe Transactions by the stockholders of the Company, no amendment may be made
\nthat would reduce the amount or change the type of consideration into which each
\nShare shall be converted upon consummation of the Merger. This Agreement may not
\nbe amended except by an instrument in writing signed by each of the parties
\nhereto.<\/p>\n
SECTION 9.05. Waiver. Subject to Section 7.03, at any time
\nprior to the Effective Time, any party hereto may (a) extend the time for the
\nperformance of any obligation or other act of any other party hereto, (b) waive
\nany inaccuracy in the representations and warranties of any other party
\ncontained herein or in any document delivered pursuant hereto and (c) waive
\ncompliance with any agreement of any other party or any condition to its own
\nobligations contained herein. Any such extension or waiver shall be valid if set
\nforth in an instrument in writing signed by the party or parties to be bound
\nthereby.<\/p>\n
ARTICLE X<\/p>\n
GENERAL PROVISIONS<\/p>\n
SECTION 10.01. Notices. All notices, requests, claims, demands
\nand other communications hereunder shall be in writing and shall be given (and
\nshall be deemed to have been duly given upon receipt) by delivery in person, by
\ntelecopy or by registered or certified mail (postage prepaid, return receipt
\nrequested) to the respective parties at the following addresses (or at such
\nother address for a party as shall be specified in a notice given in accordance
\nwith this Section 10.01):<\/p>\n
if to Parent or Purchaser:<\/p>\n
Thomson US Holdings, Inc.
\n Metro Center
\n One Station Plaza
\n Stamford, Connecticut 06902
\n Telecopier No: (203) 348-5718
\n Attention: General Counsel
\n 47
\n 43<\/p>\n
with a copy to:<\/p>\n
Shearman & Sterling
\n 599 Lexington Avenue
\n New York, New York 10022
\n Telecopier No: (212) 848-7179
\n Attention: David W. Heleniak, Esq.
\n Email: dheleniak@shearman.com<\/p>\n
if to the Company:<\/p>\n
Wave Technologies International, Inc.
\n 10845 Olive Boulevard, Suite 250
\n St. Louis, Missouri 63141
\n Telecopier No: (314) 621-5065
\n Attention:<\/p>\n
with a copy to:<\/p>\n
Armstrong Teasdale LLP
\n One Metropolitan Square, Suite 2600
\n St. Louis, Missouri 63102
\n Telecopier No: (314) 621-5065
\n Attention: John L. Gillis, Jr., Esq.
\n E-mail: jgillis@armstrongteasdale.com<\/p>\n
SECTION 10.02. Severability. If any term or other provision of
\nthis Agreement is invalid, illegal or incapable of being enforced by any rule of
\nlaw, or public policy, all other conditions and provisions of this Agreement
\nshall nevertheless remain in full force and effect so long as the economic or
\nlegal substance of the Transactions is not affected in any manner materially
\nadverse to any party. Upon such determination that any term or other provision
\nis invalid, illegal or incapable of being enforced, the parties hereto shall
\nnegotiate in good faith to modify this Agreement so as to effect the original
\nintent of the parties as closely as possible in a mutually acceptable manner in
\norder that the Transactions be consummated as originally contemplated to the
\nfullest extent possible.<\/p>\n
SECTION 10.03. Entire Agreement; Assignment. This Agreement
\nconstitutes the entire agreement among the parties with respect to the subject
\nmatter hereof and supersede all prior agreements and undertakings, both written
\nand oral, among the parties, or any of them, with
\n 48
\n 44<\/p>\n
respect to the subject matter hereof. This Agreement shall not be assigned
\n(whether pursuant to a merger, by operation of law or otherwise), except that
\nParent and Purchaser may assign all or any of their rights and obligations
\nhereunder to any affiliate of Parent, provided that no such assignment shall
\nrelieve the assigning party of its obligations hereunder if such assignee does
\nnot perform such obligations.<\/p>\n
SECTION 10.04. Parties in Interest. This Agreement shall be
\nbinding upon and inure solely to the benefit of each party hereto, and nothing
\nin this Agreement, express or implied, is intended to or shall confer upon any
\nother person any right, benefit or remedy of any nature whatsoever under or by
\nreason of this Agreement, other than Section 7.07 (which is intended to be for
\nthe benefit of the persons covered thereby and may be enforced by such persons).<\/p>\n
SECTION 10.05. Specific Performance. The parties hereto agree
\nthat irreparable damage would occur in the event any provision of this Agreement
\nwere not performed in accordance with the terms hereof and that the parties
\nshall be entitled to specific performance of the terms hereof, in addition to
\nany other remedy at law or equity.<\/p>\n
SECTION 10.06. Governing Law. This Agreement shall be governed
\nby, and construed in accordance with, the laws of the State of New York
\napplicable to contracts executed in and to be performed in that State (other
\nthan those provisions set forth herein that are required to be governed by
\nMissouri Law).<\/p>\n
SECTION 10.07. Waiver of Jury Trial. Each of the parties
\nhereto hereby waives to the fullest extent permitted by applicable law any right
\nit may have to a trial by jury with respect to any litigation directly or
\nindirectly arising out of, under or in connection with this Agreement or the
\nTransactions. Each of the parties hereto (a) certifies that no representative,
\nagent or attorney of any other party has represented, expressly or otherwise,
\nthat such other party would not, in the event of litigation, seek to enforce
\nthat foregoing waiver and (b) acknowledges that it and the other hereto have
\nbeen induced to enter into this Agreement and the Transactions, as applicable,
\nby, among other things, the mutual waivers and certifications in this Section
\n10.07.<\/p>\n
SECTION 10.08. Headings. The descriptive headings contained in
\nthis Agreement are included for convenience of reference only and shall not
\naffect in any way the meaning or interpretation of this Agreement.<\/p>\n
SECTION 10.09. Counterparts. This Agreement may be executed
\nand delivered (including by facsimile transmission) in one or more counterparts,
\nand by the different parties hereto in separate counterparts, each of which when
\nexecuted shall be deemed to be an original but all of which taken together shall
\nconstitute one and the same agreement.
\n 49
\n IN WITNESS WHEREOF, Parent, Purchaser and the Company have
\ncaused this Agreement to be executed as of the date first written above by their
\nrespective officers thereunto duly authorized.<\/p>\n
THOMSON US HOLDINGS, INC.<\/p>\n
By:
\n ————————————–
\n Title:<\/p>\n
WTI ACQUISITION CORPORATION<\/p>\n
Attest:<\/p>\n
By:
\n ————————————–
\n Title:<\/p>\n
WAVE TECHNOLOGIES INTERNATIONAL, INC.<\/p>\n
Attest:<\/p>\n
By:
\n ————————————–
\n Title:
\n 50
\n ANNEX A<\/p>\n
Conditions to the Offer<\/p>\n
Notwithstanding any other provision of the Offer, Purchaser
\nshall not be required to accept for payment any Shares tendered pursuant to the
\nOffer, and may extend, terminate or amend the Offer, if (i) immediately prior to
\nthe expiration of the Offer, the Minimum Condition shall not have been
\nsatisfied, (ii) any applicable waiting period under the HSR Act shall not have
\nexpired or been terminated prior to the expiration of the Offer, or (iii) at any
\ntime on or after the date of this Agreement and prior to the expiration of the
\nOffer, any of the following conditions shall exist:<\/p>\n
(a) there shall have been instituted or be pending any Action
\n before any Governmental Authority (i) challenging or seeking to make
\n illegal, materially delay, or otherwise, directly or indirectly,
\n restrain or prohibit or make materially more costly, the making of the
\n Offer, the acceptance for payment of any Shares by Parent, Purchaser or
\n any other affiliate of Parent, or the purchase of Shares, or the
\n consummation of any other Transaction, or seeking to obtain material
\n damages in connection with any Transaction; (ii) seeking to prohibit or
\n limit materially the ownership or operation by the Company, Parent or
\n any of their subsidiaries of all or any of the business or assets of
\n the Company, Parent or any of their subsidiaries that is material to
\n either Parent and its subsidiaries or the Company and the Subsidiaries,
\n in either case, taken as a whole, or to compel the Company, Parent or
\n any of their subsidiaries, as a result of the Transactions, to dispose
\n of or to hold separate all or any portion of the business or assets of
\n the Company, Parent or any of their subsidiaries that is material to
\n either Parent and its subsidiaries or the Company and the Subsidiaries,
\n in each case, taken as a whole; (iii) seeking to impose or confirm any
\n limitation on the ability of Parent, Purchaser or any other affiliate
\n of Parent to exercise effectively full rights of ownership of any
\n Shares, including, without limitation, the right to vote any Shares
\n acquired by Purchaser pursuant to the Offer or any Stockholder
\n Agreement or otherwise on all matters properly presented to the
\n Company’s stockholders, including, without limitation, the approval and
\n adoption of this Agreement and the Transactions; (iv) seeking to
\n require divestiture by Parent, Purchaser or any other affiliate of
\n Parent of any Shares; or (v) which otherwise would prevent or
\n materially delay consummation of the Offer or the Merger or otherwise
\n prevent or materially delay the Company from performing its obligations
\n under this Agreement or would have a Material Adverse Effect;<\/p>\n
(b) there shall have been any statute, rule, regulation,
\n legislation or interpretation enacted, promulgated, amended, issued or
\n deemed applicable to (i) Parent, the Company or any subsidiary or
\n affiliate of Parent or the Company or (ii) any Transaction, by any
\n United States or non-United States legislative body or Governmental
\n 51
\n A-2<\/p>\n
Authority with appropriate jurisdiction, other than the routine
\n application of the waiting period provisions of the HSR Act to the
\n Offer or the Merger, that is reasonably likely to result, directly or
\n indirectly, in any of the consequences referred to in clauses (i)
\n through (v) of paragraph (a) above;<\/p>\n
(c) any Material Adverse Effect shall have occurred;<\/p>\n
(d) there shall have occurred (i) any general suspension of
\n trading in, or limitation on prices for, securities on the NASDAQ
\n National Market or the London, Montreal or Toronto Stock Exchanges
\n (other than a shortening of trading hours or any coordinated trading
\n halt triggered solely as a result of a specified increase or decrease
\n in a market index), (ii) a declaration of a banking moratorium or any
\n suspension of payments in respect of banks in the United States or
\n Canada, (iii) any limitation (whether or not mandatory) by any
\n government or Governmental Authority, on the extension of credit by
\n banks or other lending institutions, (iv) a commencement of a war or
\n armed hostilities or other national or international calamity directly
\n or indirectly involving the United States or Canada or (v) in the case
\n of any of the foregoing existing on the date hereof, a material
\n acceleration or worsening thereof;<\/p>\n
(e) (i) it shall have been publicly disclosed, or Purchaser
\n shall have otherwise learned, that beneficial ownership (determined for
\n the purposes of this paragraph as set forth in Rule 13d-3 promulgated
\n under the Exchange Act) of 15% or more of the then-outstanding Shares
\n has been acquired by any person, other than Parent or any of its
\n affiliates, or (ii) (A) the Board, or any committee thereof, shall have
\n withdrawn or modified, in a manner adverse to Parent or Purchaser, the
\n approval or recommendation of the Offer, the Merger Agreement or
\n approved or recommended any Acquisition Proposal or any other
\n acquisition of Shares other than the Offer, the Merger or (B) the
\n Board, or any committee thereof, shall have resolved to do any of the
\n foregoing;<\/p>\n
(f) any representation or warranty of the Company in the
\n Agreement that is qualified as to materiality or Material Adverse
\n Effect shall not be true and correct or any such representation or
\n warranty that is not so qualified shall not be true and correct in any
\n material respect, in each case as if such representation or warranty
\n was made as of such time on or after the date of this Agreement;<\/p>\n
(g) the Company shall have failed to perform, in any material
\n respect, any obligation or to comply, in any material respect, with any
\n agreement or covenant of the Company to be performed or complied with
\n by it under the Agreement;<\/p>\n
(h) the Agreement shall have been terminated in accordance
\n with its terms; or
\n 52
\n A-3<\/p>\n
(i) Purchaser and the Company shall have agreed that Purchaser
\n shall terminate the Offer or postpone the acceptance for payment of
\n Shares thereunder;<\/p>\n
which, in the reasonable judgment of Purchaser in any such case, and regardless
\nof the circumstances (including any action or inaction by Parent or any of its
\naffiliates) giving rise to any such condition, makes it inadvisable to proceed
\nwith such acceptance for payment.<\/p>\n
The foregoing conditions are for the sole benefit of Purchaser
\nand Parent and may be asserted by Purchaser or Parent regardless of the
\ncircumstances giving rise to any such condition or may be waived by Purchaser or
\nParent in whole or in part at any time and from time to time in their sole
\ndiscretion. The failure by Parent or Purchaser at any time to exercise any of
\nthe foregoing rights shall not be deemed a waiver of any such right; the waiver
\nof any such right with respect to particular facts and other circumstances shall
\nnot be deemed a waiver with respect to any other facts and circumstances; and
\neach such right shall be deemed an ongoing right that may be asserted at any
\ntime and from time to time.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9052],"corporate_contracts_industries":[9468],"corporate_contracts_types":[9622,9626],"class_list":["post-43128","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-thomson-corp","corporate_contracts_industries-media__other","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43128","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43128"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43128"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43128"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43128"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}