\n Section 8.02. Expenses……………………………………………………………………….34<\/p>\n Section 8.03. Entire Agreement………………………………………………………………..34<\/p>\n
Section 8.04. Assignment……………………………………………………………………..34<\/p>\n
Section 8.05. Parties in Interest……………………………………………………………..34<\/p>\n
Section 8.06. Validity……………………………………………………………………….34<\/p>\n
Section 8.07. Notices………………………………………………………………………..35<\/p>\n
Section 8.08. Governing Law…………………………………………………………………..35<\/p>\n
Section 8.09. Waiver of Jury Trial…………………………………………………………….36<\/p>\n
Section 8.10. Specific Performance…………………………………………………………….36<\/p>\n
Section 8.11. Headings……………………………………………………………………….36<\/p>\n
Section 8.12. Counterparts……………………………………………………………………36<\/p>\n
Section 8.13. Construction……………………………………………………………………36<\/p>\n
Section 8.14. Interpretation of Certain Terms…………………………………………………..36<\/p>\n
Section 8.15. Definitions…………………………………………………………………….36
\n<\/c><\/s><\/caption>\n<\/table>\n
Annex I – Conditions to the Offer<\/p>\n
-iii-<\/p>\n
AGREEMENT AND PLAN OF MERGER<\/p>\n
AGREEMENT AND PLAN OF MERGER, dated as of October 13, 2000
\n(“Agreement”), among Specialty Equipment Companies, Inc., a Delaware corporation
\n ———
\n(the “Company”), United Technologies Corporation, a Delaware corporation
\n ——-
\n(“Parent”), and Solar Acquisition Corp., a Delaware corporation and a wholly
\n——–
\nowned subsidiary of Parent (“Purchaser”).
\n ——— <\/p>\n
W I T N E S S E T H:<\/p>\n
WHEREAS, the respective Boards of Directors of Parent, Purchaser and
\nthe Company have approved the acquisition of the Company by Purchaser upon the
\nterms and subject to the conditions set forth in this Agreement;<\/p>\n
WHEREAS, in furtherance of such acquisition, it is proposed that
\nPurchaser shall make a cash tender offer (as it may be amended from time to time
\nas permitted under this Agreement, the “Offer”) to acquire all of the issued and
\n —–
\noutstanding shares (the “Shares”) of the common stock, $.01 par value, of the
\n ——
\nCompany (the “Common Stock”) at a purchase price of $30.50 per share (such price
\n ————
\nor such other price per share as may be payable in the Offer, the “Offer
\n —–
\nPrice”), net to the seller in cash, upon the terms and subject to the conditions
\nset forth in this Agreement;<\/p>\n
WHEREAS, the respective Boards of Directors of Purchaser and Parent as
\nthe sole stockholder of Purchaser have each approved this Agreement and the
\nmerger of Purchaser with and into the Company (the “Merger”), upon the terms and
\n ——
\nsubject to the conditions set forth in this Agreement;<\/p>\n
WHEREAS, as a condition to and inducement to Parent’s and Purchaser’s
\nwillingness to enter into this Agreement, simultaneously with the execution of
\nthis Agreement, certain holders and beneficial owners of Shares are entering
\ninto a Stockholder Agreement (the “Stockholder Agreement”) with Purchaser;
\n ——————— <\/p>\n
WHEREAS, the Board of Directors of the Company (the “Board of
\n ——–
\nDirectors”) has unanimously, (i) approved the Offer, the Merger, this Agreement
\n———
\nand the Stockholder Agreement (and the transactions contemplated hereby and
\nthereby) and (ii) resolved, subject to the provisions of Article VII hereof, to
\nrecommend that the holders of such Shares accept the Offer and approve this
\nAgreement and the transactions contemplated hereby;<\/p>\n
WHEREAS, Parent, Purchaser and the Company desire to make certain
\nrepresentations, warranties, covenants and agreements in connection with the
\nOffer and the Merger and also to prescribe various conditions to the Offer and
\nthe Merger; and<\/p>\n
WHEREAS, capitalized terms not defined in the context in the Section
\nin which they first appear shall have the meanings set forth in Section 8.15.
\n ———— <\/p>\n
NOW, THEREFORE, in consideration of the foregoing and the respective
\nrepresentations, warranties, covenants and agreements of the other parties
\nherein contained, and intending to be legally bound hereby, each of Parent,
\nPurchaser and the Company hereby agree as follows:<\/p>\n
ARTICLE I
\n THE OFFER<\/p>\n
Section 1.01. The Offer.
\n ——— <\/p>\n
(a) Provided that this Agreement shall not have been terminated in
\naccordance with Article VII and none of the events specified in clause (iii) of
\n ———– ————
\nAnnex I shall have occurred and then be continuing, as promptly as practical
\n——-
\nafter the date hereof, but in no event later than the sixth business day after
\nthe date hereof, Parent shall cause Purchaser to commence (within the meaning of
\nRule 14d-2 under the Exchange Act) the Offer at the Offer Price. The obligation
\nof Purchaser to consummate the Offer, to accept for payment and to pay for any
\nShares tendered pursuant to the Offer shall be subject to the satisfaction of
\nthe conditions set forth in Annex I. The initial expiration date of the Offer
\n ——-
\nshall be the twentieth business day following commencement (within the meaning
\nof Rule 14d-2 under the Exchange Act) of the Offer. Parent shall cause Purchaser
\nto, and Purchaser shall, subject to the conditions provided in Annex I, accept
\n ——-
\nfor payment and pay for all Shares validly tendered and not withdrawn pursuant
\nto the Offer as soon as practicable after such expiration date and in any event
\nin compliance with the obligations respecting prompt payment pursuant to Rule
\n14e-1(c) under the Exchange Act. On or prior to the dates that the Purchaser
\nbecomes obligated to accept for payment and pay for Shares pursuant to the
\nOffer, Parent shall provide or cause to be provided to the Purchaser the funds
\nnecessary to pay for all Shares that Purchaser becomes so obligated to accept
\nfor payment and pay for pursuant to the Offer. The Offer Price shall be net to
\nthe seller in cash, without interest, subject to any applicable withholding
\ntaxes.<\/p>\n
(b) Purchaser reserves the right to (i) waive any of the conditions set
\nforth in Annex I (other than the Minimum Condition and the condition relating to
\n ——-
\nthe expiration of the waiting period under the HSR Act), (ii) increase the price
\nper Share payable in the Offer, and (iii) make any other changes in the terms of
\nthe Offer; provided, however, unless previously approved by the Company in
\nwriting no change may be made which (a) reduces the maximum number of Shares to
\nbe purchased pursuant to the Offer, (b) decreases the price per Share payable
\npursuant to the Offer, (c) changes the form of consideration to be paid for the
\nShares pursuant to the Offer, (d) imposes conditions to the Offer in addition to
\nthe conditions set forth in Annex I, (e) waives the Minimum Condition or waives
\n ——-
\nthe condition relating to the expiration of the waiting period under the HSR Act
\nor (f) makes other changes in the terms and conditions of the Offer that are in
\nany manner adverse to the holders of Shares. Without the prior written consent
\nof the Company, Purchaser shall not extend the expiration date of the Offer
\nbeyond the initial expiration date of the Offer, except (x) as required by
\napplicable law including applicable rules and regulations of the SEC or any
\ninterpretation or position of the SEC staff, (y) that if, immediately prior to
\nthe expiration date of the Offer (as it may be extended), the Shares tendered
\nand not withdrawn pursuant to the Offer constitute less than 90% of the
\noutstanding Shares, Purchaser may, in its sole discretion, extend the Offer for
\none or more periods not to exceed an aggregate of ten business days,
\nnotwithstanding that all conditions to the Offer are satisfied as of such
\nexpiration date of the Offer; provided that after the initial expiration date,
\nthe Offer shall not be subject to any conditions that are at the time of such
\nextension satisfied other than the Minimum Condition and the conditions set
\nforth in paragraph (a) of Annex I, or (z) that if any condition to the Offer has
\n ——-
\nnot been satisfied or waived, Purchaser shall extend the expiration date of the
\nOffer for one or more periods, but in no event later than the Outside Date. In
\naddition, the Offer Price may be increased and the Offer may be extended to the
\nextent required by law in connection with such increase without the consent of
\nthe Company.<\/p>\n
-2-<\/p>\n
(c) The Offer shall be made by means of an offer to purchase (the “Offer
\n —–
\nto Purchase”) subject only to the conditions set forth in Annex I. As soon as
\n———– ——-
\nreasonably practicable on the date the Offer is commenced, Parent and Purchaser
\nshall file with the SEC a Tender Offer Statement on Schedule TO (together with
\nall amendments and supplements thereto, the “Schedule TO”) with respect to the
\n ———–
\nOffer that (i) will comply in all material respects with the provisions of all
\napplicable federal securities laws and (ii) will contain (including as an
\nexhibit) or incorporate by reference the Offer to Purchase, a form of the
\nrelated letter of transmittal and a summary advertisement (which documents,
\ntogether with any supplements or amendments thereto, are referred to
\ncollectively herein as the “Offer Documents”). Each of the Company, on the one
\n —————
\nhand, and Parent and Purchaser, on the other hand, agrees promptly to correct
\nany information provided by it in writing for use in the Schedule TO or the
\nOffer Documents if and to the extent that the Schedule TO or the Offer Documents
\nshall be, or have become, false or misleading in any material respect, and
\nParent and Purchaser further agree to take all steps necessary to cause the
\nSchedule TO, as so corrected, to be filed with the SEC and the Offer Documents,
\nas so corrected, to be disseminated to holders of Shares and any other holder of
\nsecurities issued by the Company (if any), in each case to the extent required
\nby applicable federal securities laws. Parent and Purchaser shall provide the
\nCompany and its counsel with a reasonable opportunity to review and comment on
\nthe Schedule TO and any Offer Documents before they are filed with the SEC.
\nParent and Purchaser shall promptly provide the Company and its counsel in
\nwriting with, and consult with the Company and its counsel regarding, any
\ncomments Parent, Purchaser or their counsel may receive from time to time from
\nthe SEC or its staff with respect to the Schedule TO or the Offer Documents.<\/p>\n
Section 1.02. Company Action.
\n ————– <\/p>\n
(a) The Company hereby consents to the Offer and represents and warrants
\nthat the Board of Directors, at a meeting duly called and held on October 13,
\n2000, acting by a unanimous vote of the directors: (i) approved and adopted this
\nAgreement and the transactions contemplated hereby, including the Offer and the
\nMerger and the transactions contemplated by the Stockholder Agreement
\n(including, without limitation, for purposes of Section 9 of the Confidentiality
\nAgreement dated August 14, 2000 between Parent and the Company (the
\n“Confidentiality Agreement”)); (ii) resolved to recommend that the stockholders
\n ————————-
\nof the Company accept the Offer, tender their Shares pursuant to the Offer and
\napprove this Agreement and the transactions contemplated hereby, including the
\nMerger; (iii) determined that this Agreement and the transactions contemplated
\nhereby, including the Offer and the Merger, are advisable and in the best
\ninterests of the stockholders of the Company and that the consideration to be
\npaid for each Share in the Offer and the Merger is fair to the holders of
\nShares; and (iv) irrevocably has taken all action necessary to render Section
\n203 of the DGCL and other state takeover statutes inapplicable to the Offer, the
\nMerger, this Agreement and the Stockholder Agreement and the transactions
\ncontemplated hereby and thereby. The Board has received the opinion of Credit
\nSuisse First Boston Corporation (the “Company’s Financial Advisor”) to the
\n —————————
\neffect that, based upon and subject to the matters set forth therein and as of
\nthe date thereof, the Offer Price to be received by holders of Shares (other
\nthan Parent and its Affiliates) pursuant to the Offer and the Merger is fair to
\nsuch holders of Shares from a financial point of view. The Company hereby
\nconsents to the inclusion in the Offer Documents of the recommendations of the
\nBoard described in this Section 1.02, provided that this Agreement has not been
\n ————
\nterminated.<\/p>\n
(b) The Company shall file with the SEC, as promptly as practicable after
\nthe filing by Purchaser of the Schedule TO with respect to the Offer but in any
\nevent on the date such Schedule TO is filed with the SEC, a Tender Offer
\nSolicitation\/Recommendation Statement on Schedule 14D-9 (together with any
\namendments or supplements thereto, the “Schedule 14D-9”) that
\n ————–<\/p>\n
-3-<\/p>\n
(i) will comply in all material respects with the provisions of all applicable
\nfederal securities laws and (ii) will include the recommendations of the Board
\nof Directors referred to in clause (ii) of Section 1.02(a) and the opinion of
\n ———– —————
\nthe Company’s Financial Advisor referred to in Section 4.16, provided that this
\n ————
\nAgreement has not been terminated. Each of the Company, on the one hand, and
\nParent and Purchaser, on the other hand, agrees promptly to correct any
\ninformation provided by it for use in the Schedule 14D-9 if and to the extent
\nthat the Schedule 14D-9 shall be, or have become, false or misleading in any
\nmaterial respect, and the Company shall take all steps necessary to cause the
\nSchedule 14D-9, as so corrected, to be filed with the SEC and disseminated to
\nthe Company’s stockholders, in each case to the extent required by applicable
\nlaw. The Company shall provide Parent, Purchaser and their counsel with a
\nreasonable opportunity to review and comment on the Schedule 14D-9 before it is
\nfiled with the SEC. The Company shall promptly provide the Parent and Purchaser
\nand their counsel in writing with, and consult with Parent and Purchaser and its
\ncounsel regarding, any comments the Company or its counsel may receive from the
\ntime to time from the SEC or its staff with respect to the Schedule 14D-9.<\/p>\n
(c) In connection with the Offer, the Company shall promptly upon
\nexecution of this Agreement furnish Parent and Purchaser with mailing labels,
\nsecurity position listings, any available non-objecting beneficial owner lists
\nand any available listing or computer list containing the names and addresses of
\nthe record holders of the Shares and holders of other securities issued by the
\nCompany (if any) as of the most recent practicable date and shall furnish the
\nPurchaser with such additional available information (including, but not limited
\nto, updated lists of holders of Common Stock and their addresses, mailing labels
\nand lists of security positions and non-objecting beneficial owner lists) and
\nsuch other information and assistance as Parent, Purchaser or their agents may
\nreasonably request for the purpose of communicating the Offer to the record and
\nbeneficial holders of Shares. Subject to the requirements of law, and except for
\nsuch steps as are necessary to such dissemination of, and communication with
\nrespect to, the Offer Documents and any other documents necessary to consummate
\nthe Offer and the Merger, Purchaser shall hold in confidence the information
\ncontained in any such labels and lists and the additional information referred
\nto in the penultimate sentence of this Section 1.02(c), will use such
\n —————
\ninformation only in connection with the Offer and the Merger, and, if this
\nAgreement is terminated, will, upon request, deliver to the Company all such
\nwritten information then in its possession.<\/p>\n
Section 1.03. Directors. Promptly upon the payment of the Offer Price
\n ———
\nby Purchaser for the Shares tendered pursuant to the Offer, Purchaser shall be
\nentitled to designate up to such number of directors (the “Purchaser
\nDesignees”), rounded up to the nearest whole number, to the Board of Directors
\nas will give Purchaser, subject to compliance with the Exchange Act,
\nrepresentation on the Board of Directors equal to the product of the total
\nnumber of directors on the Board of Directors (giving effect to the directors
\nappointed or elected pursuant to this sentence) multiplied by the percentage
\nthat the aggregate number of Shares as are accepted for payment pursuant to the
\nOffer bears to the number of Shares then outstanding. In furtherance thereof,
\nupon Purchaser’s request, the Company shall use its best efforts, to the fullest
\nextent permitted by law, after consummation of the Offer, to secure the
\nresignations of such number of directors as is necessary to enable Purchaser’s
\ndesignees to be elected to the Board of Directors in accordance with the terms
\nof this Section 1.03. At such time, the Company shall also cause, if requested
\n ————
\nby Purchaser, (i) each committee of the Board of Directors, (ii) the board of
\ndirectors of each of the Subsidiaries and (iii) each committee of such board to
\ninclude persons designated by Purchaser constituting up to the same percentage
\n(rounded up to the nearest whole number) of each such committee or board as
\nPurchaser Designees constitute on the Board of Directors. The foregoing
\nnotwithstanding, until the Effective Time, the Company, Purchaser and Parent
\nshall use all reasonable best efforts to retain as members of the <\/p>\n
-4-<\/p>\n
Company’s Board of Directors at least two directors who are directors of the
\nCompany on the date hereof and who are not representatives of Parent (the
\n“Independent Directors”). As used in this Agreement, the term “Independent
\n ———– ———
\nDirectors” shall initially mean each of Messrs. Richard A. Kent and Barry L.
\nMacLean; provided that in the event that any such Independent Director resigns
\nor otherwise ceases to be a director for any reason, then the Company, Purchaser
\nand Parent shall use their best efforts to cause a Person nominated by the
\nremaining Independent Directors to be elected as a replacement for such director
\nas expeditiously as legally practicable. If for any reason at any time prior to
\nthe Effective Time no Independent Directors then remain, then (i) the other
\ndirectors shall use best efforts to designate two persons to be the Independent
\nDirectors, none of whom shall be directors, officers, employees or Affiliates of
\nParent or Purchaser, and (ii) the Company, Purchaser and Parent shall use their
\nbest efforts to cause such persons to be elected as a replacement for such
\ndirector as expeditiously as legally practicable. The Company shall promptly
\ntake all action necessary to effect such contemplated election, including (i)
\nestablishing as a record date for the written consent by the Company’s
\nStockholders to such election a date that is within six business days prior to
\nthe commencement of the Offer and (ii) filing with the SEC a Schedule 14A
\n(together with any supplements or amendments thereto the “Schedule 14A”)
\n ————
\nregarding the solicitation of written consents to the election of the Purchaser
\nDesignees which shall contain the information as may be required by Schedule 14A
\nunder the Exchange Act as is necessary to enable the Purchaser Designees to be
\nelected to the Board of Directors, including distributing the information
\nrequired by the Exchange Act and such Schedule with the Schedule 14D-9.
\nPurchaser will supply to the Company in writing and be solely responsible for
\nany information with respect to itself and its nominees, officers, directors and
\naffiliates required by Schedule 14A. Parent and Purchaser will disseminate the
\nSchedule 14A to the holders of the Shares together with the Offer Documents.
\nNotwithstanding anything in this Agreement to the contrary, following the time
\ndirectors designated by Purchaser constitute a majority of the Board of
\nDirectors and prior to the Effective Time, the affirmative vote of a majority of
\nthe Independent Directors shall be required to (i) amend or terminate this
\nAgreement on behalf of the Company, (ii) exercise or waive any of the Company’s
\nrights or remedies hereunder, (iii) extend the time for performance of Parent’s
\nobligations hereunder, or (iv) approve any other action by the Company that
\ncould adversely affect the interests of the stockholders of the Company (other
\nthan Parent, Purchaser and their Affiliates) with respect to the transactions
\ncontemplated hereby and such affirmative majority vote shall be sufficient to
\ntake any such action.<\/p>\n
ARTICLE II
\n THE MERGER<\/p>\n
Section 2.01. The Merger. Upon the terms and subject to the conditions of
\n ———-
\nthis Agreement, at the Effective Time in accordance with the DGCL, Purchaser
\nshall be merged with and into the Company. Following the Merger, the separate
\ncorporate existence of Purchaser shall cease and the Company shall continue as
\nthe surviving corporation (the “Surviving Corporation”).
\n ———————<\/p>\n
Section 2.02. Closing; Effective Time.
\n ———————–<\/p>\n
(a) The closing of the Merger (the “Closing”) will take place at 10:00
\n ——-
\na.m. Chicago time on a date to be specified by the parties, which shall be no
\nlater than the second business day after satisfaction or waiver of the
\nconditions set forth in Article VI, at the offices of Sonnenschein Nath & ———-
\nRosenthal, 8000 Sears Tower, Chicago, Illinois 60606, unless another date, time
\nor place is agreed to in writing between Parent and the Company. The date on
\nwhich the Closing occurs is referred to in this Agreement as the “Closing Date.”
\n ————-<\/p>\n
-5-<\/p>\n
(b) The Merger shall be consummated by Parent duly filing, or causing the
\nCompany and\/or Purchaser to duly file, the appropriate Certificate of Merger in
\nsuch form as is required by, and prepared, executed and acknowledged in
\naccordance with, the relevant provisions of the DGCL. The Merger shall become
\neffective at such time as the Certificate of Merger is duly filed with the
\nSecretary of State of the State of Delaware in accordance with the DGCL or at
\nsuch later time as is specified in the Certificate of Merger (the “Effective
\n ———
\nTime”).
\n—-<\/p>\n
Section 2.03. Effect of the Merger. At the Effective Time, the effect of
\n ——————–
\nthe Merger shall be as provided in the applicable provisions of the DGCL.
\nWithout limiting the generality of the foregoing, and subject thereto, at the
\nEffective Time all the property, rights, privileges, powers and franchises of
\nthe Company and Purchaser shall vest in the Surviving Corporation, and all
\ndebts, liabilities and duties of the Company and Purchaser shall become the
\ndebts, liabilities and duties of the Surviving Corporation.<\/p>\n
Section 2.04. Certificate of Incorporation; By-Laws; Directors and
\n —————————————————-
\nOfficers.
\n———<\/p>\n
(a) At the Effective Time, the Certificate of Incorporation of Company,
\nas in effect immediately before the Effective Time, shall be the Certificate of
\nIncorporation of the Surviving Corporation, until thereafter amended as provided
\nby law and such Certificate of Incorporation.<\/p>\n
(b) At the Effective Time, the By-Laws of Company, as in effect
\nimmediately prior to the Effective Time, shall be the By-Laws of the Surviving
\nCorporation until thereafter amended as provided by law, the Certificate of
\nIncorporation of the Surviving Corporation and such By-Laws.<\/p>\n
(c) The directors of Purchaser immediately prior to the Effective Time
\nshall be the initial directors of the Surviving Corporation, and the officers of
\nthe Company immediately prior to the Effective Time shall be the initial
\nofficers of the Surviving Corporation, in each case until their successors are
\nduly elected or appointed and qualified or until their earlier death, permanent
\ndisability, resignation or removal.<\/p>\n
Section 2.05. Conversion of Shares. At the Effective Time, by virtue of
\n ——————–
\nthe Merger and without any action on the part of Purchaser, the Company or the
\nholder of any of the following securities:<\/p>\n
(a) Each Share issued and outstanding immediately prior to the Effective
\nTime (other than any Shares to be canceled pursuant to Section 2.05(b) and any
\n ————–
\nDissenting Shares) shall be canceled and be converted into the right to receive
\nthe Offer Price in cash payable to the holder thereof, without interest (the
\n“Merger Consideration”), upon surrender of the certificate representing such
\n———————-
\nShare, less any applicable withholding taxes.<\/p>\n
(b) Each Share held in the treasury of the Company or owned by any
\nSubsidiary and each Share owned by Parent, Purchaser or any direct or indirect
\nwholly owned subsidiary of Parent or Purchaser immediately prior to the
\nEffective Time shall be canceled and no payment or other consideration shall be
\nmade with respect thereto.<\/p>\n
(c) Each share of common stock, $0.0001 par value, of Purchaser issued
\nand outstanding immediately prior to the Effective Time shall be converted into
\nand thereafter represent one validly issued, fully paid and nonassessable share
\nof common stock, $.0l par value, of the Surviving Corporation.<\/p>\n
-6-<\/p>\n
Section 2.06. Dissenting Shares.
\n ——————<\/p>\n
(a) Notwithstanding any provision of this Agreement to the contrary, but
\nonly to the extent required by the DGCL, Shares issued and outstanding
\nimmediately prior to the Effective Time and owned of record by any stockholder
\nwho has not voted such Shares in favor of or consented to the Merger and who
\nproperly demands appraisal of such Shares pursuant to the DGCL and complies with
\nall the provisions of the DGCL concerning the right of holders of Shares to
\ndemand appraisal of their Shares in connection with the Merger (collectively,
\nthe “Dissenting Shares”) shall not be converted into the right to receive the
\n —————–
\nMerger Consideration, but shall become the right to receive such cash
\nconsideration as may be determined to be due to such stockholder as provided in
\nthe DGCL. If, however, such stockholder withdraws such holder’s demand for
\nappraisal or fails to perfect or otherwise loses such holder’s right of
\nappraisal, in any case pursuant to the DGCL, each such Share of such holder
\nshall be deemed to be converted as of the Effective Time into the right to
\nreceive the Merger Consideration pursuant to Section 2.05(a), without any
\n —————
\ninterest thereon, upon surrender of the certificate or certificates representing
\nsuch Shares.<\/p>\n
(b) The Company shall give Parent (i) prompt notice of any demands for
\nappraisal of Shares received by the Company and (ii) the opportunity to
\nparticipate in and direct all negotiations and proceedings with respect to any
\nsuch demands. Except as required by law, the Company shall not, without the
\nprior written consent of Parent, make any payment with respect to, settle, or
\noffer to settle any such demands.<\/p>\n
(c) Each Dissenting Share, if any, shall be canceled after payment in
\nrespect thereof has been made to the holder thereof pursuant to the DGCL.<\/p>\n
(d) At the Effective Time, any holder of Dissenting Shares shall cease to
\nhave any rights with respect thereto except the rights provided by Section 262
\nof the DGCL or otherwise provided in this Section 2.06.
\n ————<\/p>\n
Section 2.07. Surrender of Shares; Stock Transfer Books.
\n ——————————————<\/p>\n
(a) Prior to the Effective Time, Parent shall designate a bank or trust
\ncompany which shall be reasonably satisfactory to the Company to act as paying
\nagent in the Merger (the “Paying Agent”) to receive the funds necessary to make
\n ————
\nthe payments contemplated by Section 2.05(a). From time to time after the
\n —————
\nEffective Time, Parent shall cause Purchaser to and Purchaser shall deposit with
\nsuch Paying Agent an amount of cash sufficient to permit the Paying Agent to
\nmake the payments necessary for payment of the Merger Consideration under
\nSection 2.07(b) to which holders of Shares shall be entitled at the Effective
\n————–
\nTime pursuant to Section 2.05(a). Such funds shall be invested by the Paying
\n ————–
\nAgent as directed by Parent. Any net profits resulting from, or interest or
\nincome produced by, such investments shall be payable as directed by Parent.<\/p>\n
(b) As soon as reasonably practicable after the Effective Time, the
\nSurviving Corporation shall cause the Paying Agent to mail to each holder of
\nrecord of a certificate or certificates that immediately prior to the Effective
\nTime represented Shares (the “Certificates”) (i) a letter of transmittal (which
\n ————
\nshall specify that delivery shall be effected, and risk of loss and title to the
\nCertificates shall pass, only upon delivery of the Certificates to the Paying
\nAgent and shall be in a form and have such other provisions as Parent may
\nreasonably specify) and (ii) instructions for use in effecting the surrender of
\nthe Certificates in exchange for the Merger Consideration as provided in Section
\n ——-
\n2.05(a). Upon surrender of a Certificate for cancellation to the Paying Agent or
\n——-
\nto such other <\/p>\n
-7-<\/p>\n
agent or agents as may be appointed by Parent, together with such letter of
\ntransmittal, duly executed, and such other documents as may reasonably be
\nrequired by the Paying Agent, as consented to by Company, the holder of such
\nCertificate shall be entitled to receive in exchange therefor the amount of
\ncash, without interest, into which the Shares theretofore represented by such
\nCertificate shall have been converted pursuant to Section 2.05(a), and the
\n —————
\nCertificate so surrendered shall forthwith be canceled.<\/p>\n
(c) If payment of cash in respect of canceled Shares is to be made to a
\nPerson other than the Person in whose name a surrendered Certificate is
\nregistered, it shall be a condition to such payment that the Certificate so
\nsurrendered shall be properly endorsed or shall be otherwise in proper form for
\ntransfer and that the Person requesting such payment shall have paid any
\ntransfer and other taxes required by reason of such payment in a name other than
\nthat of the registered holder of the Certificate surrendered or shall have
\nestablished to the satisfaction of Parent or the Paying Agent that such tax
\neither has been paid or is not payable. If a mutilated Certificate is
\nsurrendered to the Paying Agent or if the holder of a Certificate submits an
\naffidavit to the Paying Agent stating that the Certificate has been lost,
\ndestroyed or wrongfully taken, such holder shall, if required by Parent, furnish
\nan indemnity bond sufficient in the reasonable judgment of Parent to protect
\nParent, the Surviving Corporation and the Paying Agent from any loss that any of
\nthem may suffer.<\/p>\n
(d) Promptly following the date six months after the Effective Time, the
\nPaying Agent shall deliver to Parent all cash, certificates and other documents
\nin its possession relating to the transactions contemplated hereby, and the
\nPaying Agent’s duties shall terminate. Thereafter, each holder of a Certificate
\n(other than Certificates representing Dissenting Shares and Certificates
\nrepresenting Shares to be canceled pursuant to Section 2.05(b)) shall look only
\n —————
\nto the Surviving Corporation (subject to abandoned property, escheat or other
\nsimilar laws) and only as general creditors thereof, with respect to any Merger
\nConsideration that may be payable upon due surrender of the Certificates held by
\nsuch holder. Notwithstanding the foregoing, none of Parent, Purchaser, the
\nSurviving Corporation or the Paying Agent shall be liable to any Person in
\nrespect of any cash delivered to a public official pursuant to any applicable
\nabandoned property, escheat or similar law. If any Certificate shall not have
\nbeen surrendered prior to the date which is immediately prior to the date that
\nsuch unclaimed funds would otherwise become subject to any abandoned property,
\nescheat or similar law, then such unclaimed funds payable with respect to such
\ncertificates shall, to the extent permitted by applicable law, become the
\nproperty of the Surviving Corporation, free and clear of all claims or interest
\nof any Person previously entitled thereto.<\/p>\n
(e) Parent (or any affiliate thereof) or the Paying Agent shall be
\nentitled to deduct and withhold from the consideration otherwise payable
\npursuant to this Agreement to any holder of Shares such amounts as Parent or the
\nPaying Agent is required to deduct and withhold with respect to the making of
\nsuch payment under the Code, or under any provision of state, local or foreign
\ntax law. To the extent that amounts are so withheld by Parent or the Paying
\nAgent, such withheld amounts shall be treated for all purposes of this Agreement
\nas having been paid to the holder of the Shares in respect of which such
\ndeduction and withholding was made by the Parent or the Paying Agent.<\/p>\n
(f) All cash paid upon the surrender of Certificates in accordance with
\nthe terms of this Article II shall be deemed to have been paid in full
\n ———
\nsatisfaction of all rights pertaining to the Shares theretofore represented by
\nsuch Certificates. At the Effective Time, the stock transfer books of the
\nCompany shall be closed and thereafter there shall not be any further
\nregistration of transfers of Shares that were outstanding immediately prior to
\nthe Effective Time on the records of the Surviving Corporation. If, after the
\nEffective Time, Certificates are presented to the Surviving Corporation for<\/p>\n
-8-<\/p>\n
transfer, they shall be canceled and exchanged for the Merger Consideration as
\nprovided in Section 2.05(a) and this Section 2.07.
\n ————— ———— <\/p>\n
Section 2.08. Stock Plans.
\n ————<\/p>\n
(a) As of the Effective Time, each outstanding option to purchase Shares
\n(each, a “Company Stock Option”) issued pursuant to the Company’s Executive
\n ——————–
\nLong- Term Incentive Plan and Non-Employee Directors Long-Term Incentive Plan
\n(the “Stock Option Plans”) shall be cancelled and each holder of Company Stock
\n ——————
\nOptions, whether such Company Stock Option is vested or not, will receive, in
\nconsideration of such holder’s Company Stock Options a cash payment from Parent
\nimmediately upon the Effective Time equal to the product of (A) the amount by
\nwhich the Merger Consideration amount exceeds the exercise price of such Company
\nStock Option and (B) the number of Shares issuable upon exercise of such Company
\nStock Option.<\/p>\n
(b) The provisions of this Section are intended to be for the benefit of,
\nand shall be enforceable by, each holder of Company Stock Options (it being
\nexpressly agreed that such persons shall be the third party beneficiaries of
\nthis Section).<\/p>\n
ARTICLE III
\n REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER<\/p>\n
Parent and Purchaser, jointly and severally, represent and warrant to the
\nCompany as follows:<\/p>\n
Section 3.01. Corporate Organization. Each of Parent and Purchaser is a
\n ———————-
\ncorporation duly organized, validly existing and in good standing under the laws
\nof the jurisdiction of its incorporation and has the requisite corporate power
\nand authority to carry on its business as it is now being conducted. Each of
\nParent and Purchaser is duly qualified or licensed to do business and is in good
\nstanding in each jurisdiction in which the property owned, leased or operated by
\nit or the nature of the business conducted by it makes such qualification
\nnecessary except for any such failure that would not have a material adverse
\neffect on or prevent or materially delay the consummation of the Offer or the
\nMerger.<\/p>\n
Section 3.02. Authority Relative to this Agreement. Each of Parent and
\n ————————————
\nPurchaser has the necessary corporate power and authority to execute, deliver
\nand enter into this Agreement, to carry out their obligations hereunder and to
\nconsummate the transactions contemplated hereby. The execution and delivery of
\nand entering into this Agreement by Parent and Purchaser, the performances of
\nthe Parent’s and Purchaser’s obligations hereunder and the consummation by
\nParent and Purchaser of the transactions contemplated hereby have been duly
\nauthorized by all necessary corporate action on the part of Parent and Purchaser
\nand no other corporate proceeding or stockholder action is necessary for the
\nexecution and delivery of and entering into this Agreement by Parent or
\nPurchaser, the performance by Parent or Purchaser of their respective
\nobligations hereunder and the consummation by Parent or Purchaser of the
\ntransactions contemplated hereby. This Agreement has been duly executed,
\ndelivered and entered into by Parent and Purchaser and, assuming due
\nauthorization, execution and delivery by the Company, constitutes a legal, valid
\nand binding obligation of each such corporation, enforceable against each of
\nthem in accordance with its terms except to the extent that its enforceability
\nmay be limited by applicable bankruptcy, insolvency, reorganization or other
\nlaws affecting the enforcement of creditors’ rights generally or by general
\nequitable principles.<\/p>\n
-9-<\/p>\n
Section 3.03. No Conflict; Required Filings and Consents.
\n ——————————————-<\/p>\n
(a) The execution and delivery of this Agreement by Parent and Purchaser
\ndo not, and the performance of their respective obligations under this Agreement
\nby Parent and Purchaser and the consummation of the transactions contemplated by
\nthis Agreement will not, (i) assuming all notices, reports, other filings, or
\nrequired approvals described in clauses (i) through (iii) of Section 3.03(b)
\n ———- —– —————
\nhave been given, made, or received, conflict with or violate any law,
\nregulation, court order, judgment or decree applicable to Parent or Purchaser or
\nby which any of their property is bound or affected, (ii) violate or conflict
\nwith either the Certificate or Articles of Incorporation or By-Laws of either
\nParent or Purchaser or (iii) result in any violation or breach of or constitute
\na default (or an event which with notice or lapse of time or both would become a
\ndefault) under, or give to others any rights of termination, amendment or
\ncancellation of, or result in the creation of a lien or encumbrance on any of
\nthe property or assets of Parent or Purchaser pursuant to, any note, bond,
\nmortgage, indenture, agreement, contract, instrument, permit, license, franchise
\nor other obligation to which Parent or Purchaser is a party or by which Parent
\nor Purchaser or any of them or their property is bound or affected, except for,
\nin the case of clauses (i) and (iii), conflicts, violations, breaches or
\n ———– —–
\ndefaults which would not prevent or materially delay the consummation of the
\nOffer and the Merger.<\/p>\n
(b) Except for (i) applicable requirements, if any, of the Exchange Act,
\n(ii) the pre-merger notification requirements of the HSR Act, and (iii) filings
\nby Parent or Purchaser required by, and approvals under, applicable foreign
\nantitrust and competition laws or regulations (“Foreign Antitrust Laws”),
\n ———————-
\nneither Parent nor Purchaser is required to submit any notice, report or other
\nfiling with any federal, state or local government or any court, administrative
\nor regulatory agency or commission or other governmental authority or agency,
\ndomestic or foreign (a “Governmental Entity”), in connection with the execution,
\n ——————-
\ndelivery or performance of their respective obligations of this Agreement or the
\nconsummation of the transactions contemplated hereby. No waiver, consent,
\napproval or authorization of any Governmental Entity is required to be obtained
\nor made by either Parent or Purchaser in connection with its execution, delivery
\nor performance of their respective obligations of this Agreement or the
\nconsummation of the transactions contemplated hereby, except as set forth above
\nand except where the failure to obtain such waivers, consents, approvals or
\nauthorizations would not prevent or materially delay the performance by Parent
\nor Purchaser of their respective obligations under this Agreement.<\/p>\n
Section 3.04. Financing Arrangements. Parent has or will obtain, and will
\n ———————-
\ncause Purchaser to have or obtain, the funds sufficient to consummate the Offer
\nand the Merger in accordance with the terms of this Agreement, and to pay all
\nrelated fees and expenses in connection therewith, and shall make such funds
\navailable to Purchaser for such purposes.<\/p>\n
Section 3.05. Brokers. No broker, finder or investment banker is entitled
\n ——-
\nto any brokerage, finder’s or other fee or commission in connection with the
\ntransactions contemplated by this Agreement based upon arrangements made by and
\non behalf of Parent or Purchaser.<\/p>\n
Section 3.06. Offer Documents; Proxy Statement. None of the information
\n ——————————–
\nsupplied in writing by Parent or Purchaser (the “Parent Information”)
\nspecifically for inclusion in the Schedule 14D-9, the Schedule 14A or the Proxy
\nStatement (if any) will, on the date filed with the SEC or mailed to the Company
\nstockholders, and, in the case of the Proxy Statement, at the time of the
\nCompany Stockholders’ Meeting (if any), contain any untrue statement of a
\nmaterial fact or omit to state any material fact required to be stated therein
\nor necessary in order to make the statements <\/p>\n
-10-<\/p>\n
therein, in light of the circumstances under which they were made, not
\nmisleading or necessary to correct any statement in any earlier filing by Parent
\nor Purchaser with the SEC or communication with the holders of Shares with
\nrespect to the Offer, the Merger or the Company Stockholders’ Meeting (if any)
\nthat has become false or misleading. Neither the Schedule TO nor the Offer
\nDocuments will, at the respective times the Offer Documents are filed with the
\nSEC or first published, sent or given to the Company’s stockholders, contain any
\nuntrue statement of a material fact or omit to state any material fact required
\nto be stated therein or necessary in order to make the statements therein, in
\nlight of the circumstances under which they were made, not misleading or
\nnecessary to correct any statement in any earlier filing by Parent or Purchaser
\nwith the SEC or communication to holders of the Shares with respect to the
\nOffer, this Agreement, the Merger or the Company’s Stockholders’ Meeting (if
\nany) that has become false or misleading. Notwithstanding the foregoing, Parent
\nand Purchaser do not make any representation or warranty with respect to
\nstatements made or incorporated by reference in any of the foregoing documents
\nbased upon information that has been supplied in writing by the Company or its
\naccountants, counsel or other authorized representatives for use in any of the
\nforegoing documents. Each of the Schedule TO and the Offer Documents will comply
\nas to form in all material respects with the applicable provisions of the
\nExchange Act.<\/p>\n
ARTICLE IV
\n REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n
The Company represents and warrants to Purchaser that as of the date
\nhereof, except as disclosed or reflected (including, in the case of financial
\nstatements, provided for) in the Company’s disclosure letter delivered herewith
\nto Parent and Purchaser (the “Company’s Disclosure Letter”), or in the Company’s
\n —————————
\nForm 10-K for the fiscal year ended January 31, 2000 (“Form 10-K”) as filed with
\n ———
\nthe SEC, any subsequently filed Forms 10-Q and Forms 8-K filed prior to the date
\nhereof, the annual report to stockholders for the fiscal year ended January 31,
\n2000 delivered to Parent and Purchaser (the “Annual Report”), and the proxy
\n ————-
\nstatement for the Company’s 2000 Annual Stockholders Meeting (such Forms, the
\nAnnual Report and such proxy statement, including any financial statements and
\nrelated notes or schedules included in such documents and all exhibits and
\nschedules included or incorporated by reference therein, are herein collectively
\nreferred to as the “Recent SEC Reports”):
\n —————— <\/p>\n
Section 4.01. Organization and Qualification; Subsidiaries. Each of the
\n ——————————————–
\nCompany and its Subsidiaries is a corporation duly organized, validly existing
\nand in good standing (with respect to jurisdictions that recognize the concept
\nof good standing) under the laws of the jurisdiction of its incorporation and
\nhas the requisite corporate power and authority and any necessary governmental
\nauthority and approvals to own, operate or lease the properties that it purports
\nto own, operate or lease and to carry on its business as it is now being
\nconducted, and is duly qualified or licensed as a foreign corporation to do
\nbusiness, and is in good standing (with respect to jurisdictions that recognize
\nthe concept of good standing), in each jurisdiction where the character of its
\nproperties owned, operated or leased or the nature of its activities makes such
\nqualification or licensing necessary, except for any such failures that,
\nindividually and in the aggregate, have not had and are not reasonably likely to
\nhave, a Material Adverse Effect or prevent or materially delay the consummation
\nof the Offer or the Merger. For purposes of this Agreement, “Material Adverse
\n —————-
\nEffect” means a materially adverse effect to the business, financial condition
\n——
\nor operations of the Company and its Subsidiaries taken as a whole, other than
\nadverse effects from (i) conditions, circumstances or changes in the general
\neconomy or capital markets or (ii) any disclosure of this Agreement. The
\nCompany has heretofore furnished to Parent a complete and correct copy of the<\/p>\n
-11-<\/p>\n
Certificate of Incorporation and the By-Laws of the Company as currently in
\neffect. Neither the Company nor any of its Subsidiaries, directly or
\nindirectly, owns any interest in any Person other than the Company’s
\nSubsidiaries.<\/p>\n
Section 4.02. Capitalization.
\n ————–<\/p>\n
(a) The authorized capital stock of the Company consists of 25,000,000
\nshares of Common Stock. As of October 12, 2000, (i) 19,515,887 shares of Common
\nStock were issued and outstanding, all of which shares of Common Stock were
\nvalidly issued and are fully paid, nonassessable and free of preemptive rights,
\n(ii) 33,646 shares of Common Stock were held in the treasury of the Company and
\n(iii) 924,100 shares of Common Stock were reserved for issuance upon exercise of
\nCompany Stock Options issued and outstanding on such date. Since October 12,
\n2000, (i) no shares of Common Stock have been issued, except in connection with
\nthe exercise of Company Stock Options issued and outstanding on the date hereof
\nand (ii) no options, warrants, securities convertible into, or commitments with
\nrespect to the issuance of, shares of capital stock of the Company have been
\nissued, granted or made. Section 4.02 of the Company’s Disclosure Letter
\n ————
\ncontains a true, accurate and complete list, as of the date hereof, of the name
\nof each holder of Company Stock Options, the number of Company Stock Options
\nheld by such holder, the grant date of each such Company Stock Option, the
\nnumber of Shares such holder is entitled to receive upon the exercise of each
\nsuch Option and the corresponding exercise price. There are no shares of capital
\nstock or other voting securities of the Company, options, calls, warrants or
\nrights, agreements, arrangements or commitments of any character obligating the
\nCompany or any of its Subsidiaries to issue, deliver or sell or cause to be
\nissued, delivered or sold any shares of capital stock or other voting securities
\nor securities convertible into or exchangeable for capital stock or voting
\nsecurities of or other equity interests in the Company or any of the
\nSubsidiaries or equity equivalents, interests in the ownership or earnings of
\nthe Company (including, but not limited to, stock appreciation rights, phantom
\nstock or stock-based performance units) or other similar rights issued and
\noutstanding (collectively, “Company Securities”) or obligations by the Company
\n ——————
\nor any of its Subsidiaries to make any payments based on the price or value of
\nthe Shares. There are no voting trusts or other agreements or understandings to
\nwhich the Company or any of its Subsidiaries is a party with respect to the
\nvoting of capital stock of the Company or any of its Subsidiaries. There are no
\nbonds, debentures, notes or other indebtedness of the Company having the right
\nto vote (or convertible into, or exchangeable for, securities having the right
\nto vote) on any matters on which stockholders of the Company may vote (“Company
\n ——-
\nVoting Debt”) issued and outstanding. There are no stockholders agreements,
\n———–
\nvoting trusts or other agreements or understandings to which the Company or any
\nof its Subsidiaries is a party or by which it is bound relating to the issued or
\nunissued capital stock of the Company (including any such agreements or
\nunderstandings that may limit in any way the solicitation of proxies by or on
\nbehalf of the Company from, or the casting of votes by, the stockholders of the
\nCompany with respect to the Merger) or granting to any person or group of
\npersons the right to elect, or to designate or nominate for election, a director
\nto the Board of Directors. There are no programs in place or outstanding
\nobligations of the Company or any of its Subsidiaries (i) to repurchase, redeem
\nor otherwise acquire any Company Securities or (ii) to vote or to dispose of any
\nshares of the capital stock of any of the Subsidiaries.<\/p>\n
(b) All the shares of outstanding capital stock of each of the Company’s
\nSubsidiaries are duly authorized, validly issued, fully paid and nonassessable
\nand not subject to preemptive (or similar) rights and are owned by the Company
\nor a wholly owned Subsidiary free and clear of any liens, security interests,
\npledges, agreements, claims, charges or encumbrances of any nature whatsoever.
\nThere are no existing options, calls, warrants or other rights, agreements,
\narrangements <\/p>\n
-12-<\/p>\n
or commitments of any character relating to the issued or unissued capital stock
\nor other equity interests or securities of any Subsidiary. There are no
\noutstanding obligations of the Company or any of its Subsidiaries to make any
\npayments based on the price or value of any shares of any Subsidiary. Neither
\nthe Company nor any of its Subsidiaries is under any current or prospective
\nobligation to provide funds to, make a capital contribution or investment in or
\nloan to, or to assume any liability or obligation of, any corporation,
\npartnership, joint venture or business association or entity.<\/p>\n
Section 4.03. Authority Relative to this Agreement. The Company has the
\n ————————————
\nnecessary corporate power and authority to execute, deliver and enter into this
\nAgreement and, subject to obtaining any necessary stockholder approval of the
\nMerger, to carry out its obligations hereunder and to consummate the
\ntransactions contemplated hereby. The execution and delivery of and entering
\ninto this Agreement by the Company, the performance of the Company’s obligations
\nhereunder and the consummation by the Company of the transactions contemplated
\nhereby have been duly authorized by all necessary corporate action on the part
\nof the Company, subject to the approval of the Merger by the Company’s
\nstockholders to the extent required by the DGCL. This Agreement has been duly
\nexecuted and delivered by the Company and constitutes a legal, valid and binding
\nobligation of the Company, enforceable against it in accordance with its terms
\nexcept to the extent that its enforceability may be limited by applicable
\nbankruptcy, insolvency, reorganization or other laws affecting the enforcement
\nof creditors’ rights generally or by general equitable principles.<\/p>\n
Section 4.04. No Conflict; Required Filings and Consents.
\n ——————————————<\/p>\n
(a) Neither the execution and delivery of this Agreement by the Company,
\nsubject to obtaining the approval of the Company’s stockholders of the Merger if
\nrequired by Section 251 of the DGCL, the consummation by the Company of the
\ntransactions contemplated hereby, nor compliance by the Company with any of the
\nprovisions hereof, will (i) violate, conflict with, or result in a breach of any
\nprovision of, or constitute a default (or an event which, with notice or lapse
\nof time or both, would constitute a default) under, or result in the termination
\nof, or accelerate the performance required by, or result in a right of
\ntermination or acceleration under, or result in the creation of any lien,
\nsecurity interest, charge or encumbrance upon any of the properties or assets of
\nthe Company or any of its Subsidiaries under, any of the terms, conditions or
\nprovisions of (x) the charter or by-laws of the Company or any of its
\nSubsidiaries, or (y) any note, bond, mortgage, indenture, deed of trust,
\nlicense, lease, agreement or other instrument or obligation to which the Company
\nor any of its subsidiaries is a party or to which any of them or any of their
\nrespective properties or assets may be subject, or (ii) subject to compliance
\nwith the statutes and regulations referred to in the next subsection, violate
\nany judgment, ruling, order, writ, injunction, decree, statute, rule or
\nregulation applicable to the Company and its Subsidiaries or any of their
\nrespective properties or assets; except, in the case of each of clauses (i)(y)
\nand (ii) above, for such violations, conflicts, breaches, defaults,
\nterminations, accelerations or creations of liens, security interests, charges
\nor encumbrances which, individually or in the aggregate, are not reasonably
\nlikely to have a Material Adverse Effect or prevent or materially delay the
\nconsummation of the Offer or the Merger.<\/p>\n
(b) Except for (i) applicable requirements, if any, of the Exchange Act,
\n(ii) the pre-merger notification requirements of the HSR Act, (iii) filings by
\nthe Company required by, and approvals under, Foreign Antitrust Laws, (iv) the
\nfiling and recordation of appropriate merger or other documents as required by
\nthe DGCL, and (v) any required notifications or filings with the New York Stock
\nExchange, Inc., the Company and each of its Subsidiaries are not required to
\nsubmit any notice, report or other filing with or obtain any authorization,
\nconsent or approval from any Governmental Entity, in connection with the
\nexecution, delivery or performance of this Agreement or <\/p>\n
-13-<\/p>\n
the consummation of the transactions contemplated hereby, except where the
\nfailure to give such notices, make such filings or obtain such authorizations,
\nconsents or approvals would not, individually or in the aggregate, be reasonably
\nexpected to have a Material Adverse Effect or prevent or materially delay
\nconsummation of the Offer or the Merger.<\/p>\n
Section 4.05. SEC Filings; Financial Statements.
\n ———————————<\/p>\n
(a) The Company has timely filed all forms, reports, schedules, proxy
\nstatements, registration statements and other documents (including all exhibits
\nthereto) required to be filed with the SEC since January 31, 1998 (the “SEC
\n —
\nReports”). The SEC Reports (including but not limited to any financial
\n——-
\nstatements or schedules included or incorporated by reference therein) (i) at
\nthe time they became effective, in the case of registration statements, or when
\nfiled, in the case of any other SEC Report, complied in all material respects
\nwith the requirements of the Securities Act or the Exchange Act, as the case may
\nbe, and (ii) do not (except to the extent revised or superseded by a subsequent
\nfiling with the SEC), and did not at the time they were filed, contain any
\nuntrue statement of a material fact or omit to state a material fact required to
\nbe stated therein or necessary in order to make the statements therein, in the
\nlight of the circumstances under which they were made, not misleading.<\/p>\n
(b) The consolidated financial statements contained in the SEC Reports
\nwere prepared in accordance with United States generally accepted accounting
\nprinciples applied on a consistent basis throughout the periods involved and
\npresent fairly the financial position of the Company and results of operations
\nand cash flows of the Company for the periods indicated, except that the
\nunaudited interim financial statements were or are subject to normal and
\nrecurring year-end adjustments (which in the aggregate are not material in
\namount) and do not contain all the footnote disclosures required by United
\nStates generally accepted accounting principles for audited financial
\nstatements.<\/p>\n
(c) Neither the Company nor any of its Subsidiaries has any liabilities
\nof any nature, whether accrued, absolute, fixed, contingent or otherwise,
\nwhether due or to become due and whether or not required to be recorded or
\nreflected on a balance sheet under United States generally accepted accounting
\nprinciples, except liabilities reflected or reserved against or disclosed in the
\nfinancial statements of the Company included in the Company’s Form 10-Q for the
\nquarter ended July 31, 2000, and except liabilities incurred since July 31, 2000
\nthat (i) have been incurred in the ordinary course of business, consistent with
\npast practice, and (ii) have not had and are not reasonably likely to have,
\nindividually or in the aggregate, a Material Adverse Effect.<\/p>\n
(d) The Company has heretofore furnished to Parent a complete and correct
\ncopy of (i) any material agreements, documents or other instruments that will be
\nrequired to be filed by the Company with the SEC pursuant to the Securities Act
\nor the Exchange Act, which have not yet been filed with the SEC, and (ii) any
\nmaterial amendments or modifications which have not yet been filed with the SEC
\nto agreements, documents or other instruments which previously had been filed by
\nthe Company with the SEC pursuant to the Securities Act or the Exchange Act.<\/p>\n
Section 4.06. Absence of Certain Changes or Events. Since July 31, 2000,
\n ————————————
\n(a) the business of the Company and its Subsidiaries has been conducted in the
\nordinary course consistent with past practice; (b) neither the Company nor any
\nof its Subsidiaries have taken any of the actions set forth in Section 5.01; and
\n ————
\n(c) neither the Company nor any of its Subsidiaries has engaged in any material
\ntransaction or entered into any material agreement or commitment outside the
\nordinary course of business. Since January 31, 2000, neither the Company nor its
\nSubsidiaries have suffered any <\/p>\n
-14-<\/p>\n
Material Adverse Effect and there has not occurred, and there is not currently
\nexisting, any circumstance or event that is reasonably likely to have
\nindividually or in the aggregate, a Material Adverse Effect.<\/p>\n
Section 4.07. Litigation. There are no claims, actions, suits,
\n ———-
\nproceedings or investigations pending or, to the knowledge of the Company,
\nthreatened against or affecting the Company or any of its Subsidiaries, or any
\nproperties or rights of the Company or any of its Subsidiaries, that (i) seek
\ndamages of more than $250,000, (ii) have had or are, individually or in the
\naggregate, reasonably likely to have, a Material Adverse Effect or (iii) are
\nreasonably likely to prevent, enjoin, alter or materially delay the consummation
\nof the transactions contemplated hereby. Neither the Company nor any of its
\nSubsidiaries nor any of their property is subject to any order, judgment,
\ninjunction or decree, which has had or is, individually or in the aggregate,
\nreasonably likely to have a Material Adverse Effect or prevent or materially
\ndelay the consummation of the Offer or the Merger.<\/p>\n
Section 4.08. Employee Benefit Plans.
\n ———————-<\/p>\n
(a) The Company’s Disclosure Letter sets forth a list of all material
\n“employee benefit plans”, as defined in Section 3(3) of ERISA whether or not
\nsuch plan is subject to ERISA, and all other material employee employment
\nagreements, consulting agreements, severance or change of control agreements,
\nbenefit or executive compensation arrangements, perquisite programs or payroll
\npractices, including, without limitation, any such material arrangements or
\npayroll practices providing severance pay, sick leave, vacation pay, salary
\ncontinuation for disability, retirement benefits, deferred compensation, bonus
\npay, incentive pay, stock options (including those held by directors, employees,
\nand consultants), hospitalization insurance, medical insurance, life insurance,
\nscholarships or tuition reimbursements, that are maintained by the Company, any
\nSubsidiary or any entity within the same “controlled group” as the Company or
\nSubsidiary, within the meaning of Section 4001(a)(14) of ERISA (an “ERISA
\n —–
\nAffiliate”) or to which the Company, any Subsidiary or ERISA Affiliate is
\n———
\nobligated to contribute thereunder for current or former employees or directors
\nof the Company, any Subsidiary or ERISA Affiliate (the “Employee Benefit
\n —————-
\nPlans”). Neither the Company nor any of its Subsidiaries has made any plan or
\n—–
\ncommitment, whether legally binding or not, to create any additional Employee
\nBenefit Plan or modify or change any existing Employee Benefit Plan that would
\nmaterially increase the benefits provided to any employee or former employee,
\nconsultant or director of the Company or any Subsidiary thereof. Since January
\n31, 2000 there has been no material change, amendment, modification to, or
\nadoption of, any Employee Benefit Plan.<\/p>\n
(b) The Company has delivered or made available to Parent true, correct
\nand complete copies of the following documents, with respect to each of the
\nEmployee Benefit Plans: (i) all Employee Benefit Plan documents and related
\ntrust documents, if any, and amendments thereto; (ii) the most recent Forms
\n5500, if any; (iii) current summary plan descriptions, if any; (iv) the most
\nrecent determination letter from the IRS, if any and (v) the most recent
\nactuarial valuation reports.<\/p>\n
(c) None of the Employee Benefit Plans is a “multiemployer plan”, as
\ndefined in Section 4001(a)(3) of ERISA or a plan that has two or more
\ncontributing sponsors at least two of whom are not under common control, within
\nthe meaning of Section 4063 of ERISA.<\/p>\n
(d) None of the Employee Benefit Plans is a “single employer plan,” as
\ndefined in Section 4001(a)(15) of ERISA, that is subject to Title IV of ERISA.<\/p>\n
-15-<\/p>\n
(e) Each Employee Benefit Plan that is intended to qualify under Section
\n401 of the Code and each trust maintained pursuant thereto has been determined
\nto be exempt from federal income taxation under Section 501 of the Code by the
\nIRS, and nothing material has occurred with respect to the operation of any such
\nEmployee Benefit Plan that is reasonably likely to cause the loss of such
\nqualification or exemption or to require a filing under Rev. Proc. 2000-16 or
\nany predecessor thereto to maintain such qualification.<\/p>\n
(f) All material contributions required to be made to any Employee
\nBenefit Plan by the Company or any Subsidiary by applicable law or regulation or
\nby any plan document, and all premiums due from or payable by the Company or any
\nSubsidiary with respect to insurance policies funding any Employee Benefit Plan,
\nfor any period through the date hereof have been timely made or paid in full or,
\nto the extent not required to be made or paid on or before the date hereof, have
\nbeen appropriately reflected in the financial statements of the Company included
\nin the SEC Reports to the extent required under United States generally accepted
\naccounting principles.<\/p>\n
(g) Under each Employee Benefit Plan that is a single-employer plan as of
\nthe last day of the most recent plan year ended prior to the date hereof, the
\nactuarially determined present value of all “benefit liabilities”, within the
\nmeaning of Section 4001(a)(16) of ERISA or, with respect to any Employee Benefit
\nPlan established pursuant to the laws of a country other than the United States
\n(“Foreign Plan”) as determined under any equivalent law or practice (in each
\n ————
\ncase as determined on the basis of the actuarial assumptions contained in the
\nEmployee Benefit Plan’s most recent actuarial valuation), did not exceed the
\nthen current value of the assets of such Employee Benefit Plan (or, with respect
\nto a Foreign Plan that in accordance with local law, custom or practice is not
\nfunded, adequate reserves are appropriately reflected in the financial
\nstatements of the Company included in the SEC Reports to the extent required
\nunder United States generally accepted accounting principles), and there has
\nbeen no material adverse change in the financial condition of such Employee
\nBenefit Plan (with respect to either assets or benefits) since the last day of
\nthe most recent plan year.<\/p>\n
(h) The Company has materially complied with the continuation coverage
\nrequirements of Sections 601 through 608 of ERISA, and the requirements of any
\nsimilar state law regarding continued insurance coverage, and there is no
\nmaterial suit or action pending or threatened against the Company or its
\nSubsidiaries with respect to such requirements.<\/p>\n
(i) No amount of compensation paid or payable by the Company to any
\nemployee will result in any nondeductible compensation under Section 162(m) of
\nthe Code.<\/p>\n
(j) To the Company’s knowledge, none of the Company, the Subsidiaries,
\nthe officers or directors of the Company or any of its Subsidiaries, any trusts
\ncreated thereunder or any trustee or administrator of any Employee Benefits
\nPlans subject to ERISA, has engaged in a “prohibited transaction” (as such term
\nis defined in Section 406 of ERISA or Section 4975 of the Code) that subjects
\nthe Company, any of its Subsidiaries to a tax or penalty on prohibited
\ntransactions imposed by such Section 4975 or liability under Section 502(i) or
\n(l) of ERISA which would, individually or in the aggregate, reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
(k) There are no material pending actions, claims or lawsuits which have
\nbeen asserted, instituted or, to the Company’s knowledge, threatened, against
\nthe Company or any of its Subsidiaries or any Employee Benefit Plan with respect
\nto the operation of the Employee Benefit Plan (other than routine benefit
\nclaims).<\/p>\n
-16-<\/p>\n
(l) All Employee Benefit Plans have been maintained and administered, in
\nall material respects, in accordance with their terms, with all provisions of
\nERISA, the Code (including rules and regulations under ERISA or the Code), and
\nother applicable federal and state laws and regulations, all to the extent
\napplicable to each such Employee Benefit Plan.<\/p>\n
(m) With respect to each Employee Benefit Plan that is a “welfare plan”
\n(as defined in Section 3(1) of ERISA, neither the Company nor any Subsidiary has
\nany obligations to provide health, life insurance, or death benefits with
\nrespect to current or former employees, consultants or directors of the Company
\nor any of its Subsidiaries beyond their termination of employment or service,
\nother than as required under Section 4980B of the Code, and each such Employee
\nBenefit Plan may be amended or terminated at any time without incurring
\nliability thereunder. Except as set forth in Section 4.08 of the Company’s
\n ————
\nDisclosure Letter, there has been no communication to any employee, consultant
\nor director of the Company or any Subsidiary that would reasonably be expected
\nto create an enforceable promise or guarantee of such retiree health or life
\ninsurance or other retiree death benefits on a permanent basis.<\/p>\n
(n) No Employee Benefit Plan, or the Company or any Subsidiary with
\nrespect to such Employee Benefit Plan, is under audit or is the subject of an
\naudit or investigation by the IRS, the U.S. Department of Labor, the Pension
\nBenefit Guaranty Corporation or any other federal or state governmental agency,
\nnor is any such audit or investigation pending or threatened.<\/p>\n
(o) All Foreign Plans have been established, operated, administered and
\nmaintained, in all material respects, in compliance with all laws, regulations
\nand orders applicable thereto. All premiums, contributions and any other amounts
\nrequired by applicable Foreign Plan documents or applicable laws to be paid or
\naccrued by the Company and any of its Subsidiaries have been paid or accrued as
\nrequired and have been appropriately reflected in the financial statements of
\nthe Company included in the SEC Reports to the extent required under United
\nStates generally accepted accounting principles.<\/p>\n
(p) Neither the execution and delivery of this Agreement nor the
\nconsummation of the transactions contemplated hereby, either alone or in
\nconjunction with any other event (whether contingent or otherwise), will except
\nas contemplated by Section 2.08 of this Agreement (i) result in any
\nnondeductible compensation under Section 162(m) of the Code or any payment
\n(including, without limitation, severance, unemployment compensation, “excess
\nparachute payment” (within the meaning of Section 280G of the Code), forgiveness
\nof indebtedness or otherwise) becoming due to any director or any employee of
\nthe Company or any of its Subsidiaries under any Employee Benefit Plan or
\notherwise; (ii) materially increase any benefits otherwise payable under any
\nEmployee Benefit Plan; (iii) result in any acceleration of the time of payment
\nor vesting of any such benefits; (iv) materially limit or prohibit the ability
\nto amend or terminate any Employee Benefit Plan; (v) require the funding of any
\ntrust or other funding vehicle; or (vi) renew or extend the term of any
\nagreement in respect of compensation for an employee of the Company or any
\nSubsidiary that would create any liability to the Company, any Subsidiary,
\nParent or Purchaser or their respective affiliates after consummation of the
\nOffer.<\/p>\n
(q) Each employment retention agreement between the Company and the
\nexecutives identified on Section 4.08(q) of the Company’s Disclosure Letter have
\nbeen amended in the applicable form set forth in Section 4.08(q) of the
\nCompany’s Disclosure Letter.<\/p>\n
-17-<\/p>\n
Section 4.09. Labor and Employment. There is no (i) unfair labor practice
\n ——————–
\ncharge pending or, to the Company’s knowledge, threatened against the Company or
\nany of its Subsidiaries; (ii) there is no labor strike, slowdown, stoppage or
\nother similar labor activity actually pending or, to the Company’s knowledge,
\nthreatened against or involving the Company or its Subsidiaries; and (iii) no
\nmaterial labor grievance is pending or, to the Company’s knowledge, threatened
\nwhich, individually or in the aggregate, has had or is reasonably likely to have
\na Material Adverse Effect. Neither the Company nor any Subsidiary (i) is
\npresently a party to or otherwise bound by any collective bargaining agreement
\nor union contract and (ii) has any material labor negotiations in progress with
\nany labor union or other labor organization. To the Company’s knowledge, there
\nare no efforts in progress by labor unions to organize any employees who are not
\nnow represented by recognized collective bargaining agents.<\/p>\n
Section 4.10. Environmental Matters. Except as set forth in the financial
\n ———————
\nstatements contained in the Company’s Form 10-K and except for Environmental
\nLiability (as defined below) which has not had and is not, individually or in
\nthe aggregate, reasonably likely to have a Material Adverse Effect: (a) each of
\nthe Company and its Subsidiaries is and has been in compliance with all
\napplicable Environmental Laws; (b) no current or former operations of the
\nCompany or of any present or former Subsidiary have given rise to any Release
\nthat may require cleanup or other study, investigation or remediation or give
\nrise to any material liability under any Environmental Law (collectively,
\n“Environmental Liability”); (c) the Company and each Subsidiary have all
\n————————
\npermits, licenses and other authorizations required under any Environmental Law
\n(“Environmental Permits”); (d) the Company and each Subsidiary is in compliance
\n ———————
\nwith its Environmental Permits; and (e) there are no pending or, to the
\nCompany’s knowledge, threatened claims against the Company or any Subsidiary
\nrelating to any Environmental Law, Release or Hazardous Substance.<\/p>\n
Section 4.11. Licenses and Permits; Compliance with Laws. The Company and
\n ——————————————
\nits Subsidiaries hold, and at all applicable times hereunder held, all permits,
\nlicenses, variances, exemptions, franchises, authorizations and approvals from
\nall Governmental Entities that are required for the operation of the businesses
\nof the Company and its Subsidiaries and the ownership, operation, lease and
\nholding by the Company and its Subsidiaries of their respective properties and
\nassets (the “Company Permits”) to the extent the failure to do so, individually
\n —————
\nor in the aggregate, has had or is reasonably likely to have a Material Adverse
\nEffect or would prevent or materially delay the Offer or the Merger. The
\nCompany and its Subsidiaries are in compliance in all material respects with the
\nterms of the Company Permits to the extent the failure to do so, individually or
\nin the aggregate, has had or is reasonably likely to have a Material Adverse
\nEffect or would prevent or materially delay consummation of the Offer or the
\nMerger. The Company and its Subsidiaries are in compliance with all applicable
\nfederal, state, local and foreign statutes, ordinances, laws, rules,
\nregulations, orders, judgments and decrees of any Governmental Entity to the
\nextent the failure to so comply, individually or in the aggregate, has had or is
\nreasonably likely to have a Material Adverse Effect or would prevent or
\nmaterially delay consummation of the Offer or the Merger.<\/p>\n
Section 4.12. Taxes.
\n —–<\/p>\n
(a) The Company and each of its Subsidiaries has duly filed with the
\nappropriate Governmental Entity all Tax Returns required to be filed by the
\nCompany or such Subsidiary. All such Tax Returns were correct and complete in
\nall material respects. Except to the extent that failure to do so would not,
\nindividually or in the aggregate, reasonably be expected to have a Material
\nAdverse Effect: (i) all Taxes due thereon have been paid, and the most recent
\nfinancial statements contained in the SEC Reports provide an adequate accrual
\nfor the payment of Taxes for the periods <\/p>\n
-18-<\/p>\n
covered by such reports; and (ii) the Company and each Subsidiary has duly
\nwithheld and paid all Taxes which it is required to withhold and pay relating to
\namounts heretofore due or owing to any employee, independent contractor,
\ncreditor, shareholder or any other third party. Since July 31, 2000, neither the
\nCompany nor any Subsidiary has incurred any Tax other than Taxes incurred in the
\nordinary course of business consistent in type and amount with past practices of
\nthe Company and each Subsidiary, respectively.<\/p>\n
(b) Neither the Company nor any Subsidiary has requested any extension of
\ntime within which to file any Tax Return in respect of any taxable year, which
\nTax Return has not since been filed.<\/p>\n
(c) Set forth in the Company’s Disclosure Letter is a complete list of
\nall Tax Returns filed by the Company or any of its Subsidiaries that have been
\nexamined or audited by the IRS or any other Governmental Entity during the
\npreceding three years, and except as set forth in the Company’s Disclosure
\nLetter, no such audit or examination is in progress. No (i) deficiency or
\nadjustment for any Taxes has been proposed or assessed against the Company or
\nany Subsidiary, except for deficiencies or adjustments which have been fully
\nsatisfied, settled or reserved for in the financial statements; (ii) waivers or
\ncomparable consents have been given by the Company or any Subsidiary that remain
\noutstanding with respect to any Tax Return of the Company or any Subsidiary
\nregarding the application of any statute of limitations with respect to any
\nTaxes or Tax Returns of the Company or any such Subsidiary; and (iii) issue has
\nbeen raised in any examination or audit of any Tax Return of the Company or any
\nSubsidiary that, by application of similar principles, is reasonably likely to
\nresult in the assertion of a deficiency for any other year not so examined or
\naudited. Neither the Company nor any Subsidiary has (x) been a member of an
\naffiliated group filing a consolidated federal income Tax Return (other than a
\ngroup the common parent of which is the Company) or (y) any liability for the
\nTaxes of any person (other than the Company and its Subsidiaries) under Section
\n1.1502-6 of the Treasury Regulations (or any similar provision of state, local
\nor foreign law), as a transferee or successor, by contract or otherwise.<\/p>\n
(d) The Company has made available to the Parent for inspection copies of
\nall material Tax Returns filed (or intended to be filed) by the Company or any
\nof its Subsidiaries within the previous three years and all workpapers prepared
\nin connection with the preparation of such Tax Returns.<\/p>\n
Section 4.13. Offer Documents; Proxy Statement. The Schedule 14D-9, when
\n ——————————–
\nfiled with the SEC and first published, sent or given to stockholders of the
\nCompany, will comply in all material respects with the Exchange Act. Neither the
\nSchedule 14D-9 nor any of the information provided by or on behalf of the
\nCompany specifically for inclusion in the Schedule TO or the Offer Documents
\nwill, at the respective times the Schedule 14D-9, the Schedule TO and the Offer
\nDocuments or any amendments or supplements thereto are filed with the SEC or
\nfirst published, sent or given to stockholders of the Company, contain any
\nuntrue statement of a material fact or omit to state any material fact (i)
\nrequired to be stated therein or necessary in order to make the statements made
\ntherein, in light of the circumstances under which they were made, not
\nmisleading or (ii) necessary to correct any statements in any earlier filing by
\nthe Company with the SEC or communication from the Company to the holder of
\nShares with respect to the Offer, the Merger or the Company’s Stockholders’
\nMeeting (if any) that has become false or misleading. Any proxy statement to be
\nsent to the stockholders of the Company in connection with a meeting of the
\nCompany’s stockholders to consider the Merger (the “Company Stockholders’
\n ——————–
\nMeeting”) or the information statement to be sent to such stockholders in
\n——-
\nconnection with any action by consent in <\/p>\n
-19-<\/p>\n
writing in lieu of a meeting, as appropriate (such proxy statement or
\ninformation statement, as amended or supplemented, is herein referred to as the
\n“Proxy Statement”), as amended or supplemented from time to time, will comply in
\n —————
\nall material respects with the applicable requirements of the Exchange Act and
\nthe DGCL. The Proxy Statement will not, at the time the Proxy Statement (or any
\namendment or supplement thereto) is filed with the SEC or first sent to
\nstockholders, at the time of the Company Stockholders’ Meeting (if any) or at
\nthe Effective Time, contain any untrue statement of a material fact or omit to
\nstate any material fact (i) required to be stated therein or necessary in order
\nto make the statements therein, in light of the circumstances under which they
\nwere made, not misleading, or (ii) necessary to correct any statement in any
\nearlier filing by the Company with the SEC or communication from the Company to
\nthe holders of Shares with respect to the Offer, the Merger or the Company
\nStockholders’ Meeting (if any) that has become false or misleading. The Schedule
\n14A, when filed with the SEC and first published, sent or given to stockholders
\nof the Company, will comply in all material respects with the Exchange Act. The
\nSchedule 14A will not, at the respective times the Schedule 14A or any
\namendments or supplements thereto are filed with the SEC or first published,
\nsent or given to stockholders of the Company, contain any untrue statement of a
\nmaterial fact or omit to state any material fact required to be stated therein
\nor necessary in order to make the statements made therein, in light of the
\ncircumstances under which they were made, not misleading. Notwithstanding the
\nforegoing, the Company makes no representation or warranty with respect to any
\ninformation that has been supplied by Parent or Purchaser or any of their
\naccountants, counsel or other authorized representatives in writing specifically
\nfor use in any of the foregoing documents.<\/p>\n
Section 4.14. Brokers. No broker, finder or investment banker (other than
\n ——-
\nthe Company’s Financial Advisor) is entitled to any brokerage, finder’s or other
\nfee or commission in connection with the transactions contemplated by this
\nAgreement based upon arrangements made by and on behalf of the Company. A true
\nand complete copy of the Company’s engagement letter with the Company’s
\nFinancial Advisor has previously been provided to Parent.<\/p>\n
Section 4.15. Takeover Statutes. The Board of Directors has approved the
\n —————–
\nOffer, the Merger, this Agreement and the transactions contemplated by the
\nStockholder Agreement, and such approval is sufficient to render inapplicable to
\nthe Offer, the Merger, this Agreement and the transactions contemplated by this
\nAgreement and the Stockholder Agreement, Section 203 of the DGCL or any other
\nrestrictive provision of any applicable anti-takeover provision in the Company’s
\nCertificate of Incorporation, By-Laws or under applicable law.<\/p>\n
Section 4.16. Opinion of Financial Advisor. The Company’s Financial
\n —————————-
\nAdvisor has delivered to the Board of Directors its written opinion, dated prior
\nto or as of the date of this Agreement, to the effect that, based upon and
\nsubject to the matters set forth therein and as of the date thereof, the Offer
\nPrice to be received by holders of Shares (other than Parent and its Affiliates)
\npursuant to the Offer and the Merger is fair to such holders of Shares from a
\nfinancial point of view. The Company has been authorized by the Company’s
\nFinancial Advisor to permit inclusion of such opinion (or a reference thereto)
\nin the Schedule 14D-9.<\/p>\n
Section 4.17. Material Contracts. The Company has made available to
\n ——————
\nParent and Purchaser true, correct and complete copies of all contracts,
\nagreements, commitments, arrangements, leases (including with respect to
\npersonal property) and other instruments to which the Company or any of its
\nSubsidiaries is a party or by which the Company, any of its Subsidiaries or any
\nof their respective assets is bound which (a) involves or could involve
\naggregate payments or receipts of more than $250,000 (excluding any commitments
\nor obligations under purchase orders <\/p>\n
-20-<\/p>\n
arising in the ordinary course of business), (b) is with any of the Company’s
\nofficers, directors or affiliates, (c) which would, pursuant to Item 601 of
\nRegulation S-K promulgated by the SEC, be required to be attached as an exhibit
\nto the Company’s SEC filings under the Exchange Act, (d) is a confidentiality,
\nstandstill or similar agreement restricting actions by the Company or (e)
\ncontains covenants limiting the freedom to engage in any line of business or
\ncompete with any Person or operate at any location (each, a “Material
\n ——–
\nContract”). Neither the Company nor any of its Subsidiaries is, or has any
\n——–
\nknowledge that any other party is, in default in any respect under any of the
\ncontracts, agreements, commitments, arrangements, leases (including with respect
\nto personal property) and other instruments to which the Company or any of its
\nSubsidiaries is a party or by which the Company, any of its Subsidiaries or any
\nof their respective assets is bound, except for such defaults, individually or
\nin the aggregate, as have not had and are not reasonably likely to have a
\nMaterial Adverse Effect, and there has not occurred any event that with the
\nlapse of time or the giving of notice or both would constitute such a default.<\/p>\n
Section 4.18. Real Property.
\n ————–<\/p>\n
(a) Each of the Company and its Subsidiaries has good and marketable
\ntitle to each parcel of real property owned in fee by it free and clear of all
\nmortgages, pledges, liens, encumbrances and security interests, except (i) those
\nreflected or reserved against in the balance sheet of the Company dated as of
\nJanuary 31, 2000 and included in the SEC Reports, (ii) Taxes and general and
\nspecial assessments not in default and payable without penalty and interest and
\n(iii) other liens, mortgages, pledges, encumbrances and security interests which
\ndo not materially interfere with the Company’s or such Subsidiary’s use and
\nenjoyment of such real property or materially detract from the value thereof and
\nthat, individually or in the aggregate, have not had and are not reasonably
\nlikely to have a Material Adverse Effect.<\/p>\n
(b) All leases, subleases and other agreements under which the Company or
\nany of its Subsidiaries uses or occupies or has the right to use or occupy, now
\nor in the future, any real property (the “Real Property Leases”) are valid,
\n ——————–
\nbinding and in full force and effect and neither the Company nor any of its
\nSubsidiaries is currently in default of any of the provisions of any real
\nproperty lease, except for such defaults, individually or in the aggregate, as
\nhave not had or are not reasonably likely to have a Material Adverse Effect. The
\ninterests of the Company and its Subsidiaries in the Real Property Leases are
\nfree and clear of all mortgages, pledges, liens, encumbrances and security
\ninterests, except (i) those reflected or reserved against in the balance sheet
\nof the Company dated as of January 31, 2000, (ii) Taxes and general and special
\nassessments not in default and payable without penalty and interest and (iii)
\nother liens, mortgages, pledges, encumbrances and security interests which do
\nnot materially interfere with the Company’s use and enjoyment of such real
\nproperty or materially detract from the value thereof and that, individually or
\nin the aggregate, have not had and are not reasonably likely to have a Material
\nAdverse Effect.<\/p>\n
Section 4.19. Intellectual Property.
\n ———————-<\/p>\n
(a) (i) With respect to each of the Company Intellectual Property Rights,
\nthe Company and its Subsidiaries either (A) are the owners of the Company
\nIntellectual Property Rights free and clear of any royalty or other payment
\nobligation, lien or charge or (B) have sufficient rights to use such Company
\nIntellectual Property Rights under a valid and enforceable license agreement,
\n(ii) there are no agreements which restrict or limit the use by the Company or
\nits Subsidiaries of the owned Company Intellectual Property Rights, and (iii) to
\nthe extent that the Company Intellectual Property Rights owned or held by the
\nCompany or its Subsidiaries are registered with the applicable <\/p>\n
-21-<\/p>\n
authorities, record title to such Company Intellectual Property Rights is
\nregistered or (applied for) in the name of the Company or any of its
\nSubsidiaries except, in each case, where the failure of such, individually or in
\nthe aggregate, has not had and is not reasonably likely to have a Material
\nAdverse Effect.<\/p>\n
(b) (i) (A) The Company Intellectual Property Rights are valid and
\nenforceable, (B) the Company Intellectual Property Rights and the products and
\nservices of the Company and its Subsidiaries do not infringe on Intellectual
\nProperty Rights of any person or entity in any country, (C) except where
\nreasonable business decisions to allow rights to lapse have been made, all
\nmaintenance taxes, annuities and renewal fees have been paid and all other
\nnecessary actions to maintain the Company Intellectual Property rights have been
\ntaken through the date hereof and will continue to be paid or taken by the
\nCompany or its Subsidiaries through the Effective Time and (D) there exists no
\nimpediment which would impair the Company’s rights to conduct its business or
\nthe business of its Subsidiaries after the Effective Time pursuant to the
\nCompany Intellectual Property Rights except, in each case, where the failure of
\nsuch has not had and would not reasonably be likely to have a Material Adverse
\nEffect.<\/p>\n
(ii) The Company and its Subsidiaries have taken all reasonable and
\nappropriate steps to protect the Company Intellectual Property Rights and, where
\napplicable, to preserve the confidentiality of the Company Intellectual Property
\nrights except, where the failure of such, individually or in the aggregate, has
\nnot had and would not reasonably be likely to have a Material Adverse Effect.<\/p>\n
(iii) During the two-year period immediately preceding the date of
\nthis Agreement, neither the Company nor any of its Subsidiaries has received any
\nnotice of claim that any of such Company Intellectual Property Rights has
\nexpired, is not valid or enforceable in any country or that it infringes upon or
\nconflicts with Intellectual Property Rights of any third party, and no such
\nclaim of infringement or conflict, whenever filed or threatened, currently
\nexists, except such as, individually or in the aggregate, has not had and would
\nnot reasonably be likely to have a Material Adverse Effect.<\/p>\n
(iv) During the two-year period immediately preceding the date of
\nthis Agreement, neither the Company nor any of its Subsidiaries has given any
\nnotice of infringement to any third party with respect to any of the Company
\nIntellectual Property Rights or has become aware of facts or circumstances
\nevidencing the infringement by any third party of any of the Company
\nIntellectual Property Rights, and no claim or controversy with respect to any
\nsuch alleged infringement currently exists, except such as, individually or in
\nthe aggregate, has not had and would not reasonably be likely to have a Material
\nAdverse Effect.<\/p>\n
(v) Certificates of registration and renewal, letter patents and
\ncopyright registration certificates and all other instruments evidencing
\nownership of the Company Intellectual Property Rights Property are in the
\npossession of the Company, its Subsidiaries, their agents or authorized
\nrepresentatives except such as, individually or in the aggregate, has not had
\nand would not reasonably be likely to have a Material Adverse Effect.<\/p>\n
Section 4.20. Related Party Transactions. No director of officer of the
\n ————————–
\nCompany or any of its Subsidiaries, nor any affiliate of such director or
\nofficer, (a) has outstanding any indebtedness or other similar obligations to
\nthe Company or any of its Subsidiaries, (b) owns any direct or indirect interest
\nof any kind (other than the ownership of less than 5% of the stock of a publicly
\ntraded <\/p>\n
-22-<\/p>\n
company) in, or is a director, officer, employee, partner, affiliate or
\nassociate of, or consultant or lender to, or borrower from, or has the right to
\nparticipate in the management, operation or profits of, any Person or entity
\nwhich is (i) a competitor, supplier, customer, distributor, lessor, tenant,
\ncreditor or debtor of the Company of any of its Subsidiaries or (ii)
\nparticipated in any transaction to which the company or any of its Subsidiaries
\nis a party or (c) is otherwise a party to any contract, arrangement or
\nunderstanding with the Company or any of its Subsidiaries.<\/p>\n
Section 4.21. Required Vote of Company Stockholders. Unless the Merger is
\n ————————————-
\nconsummated in accordance with Section 253 of the DGCL, the only vote of the
\nstockholders of the Company required to adopt the plan of merger contained in
\nthis Agreement and approve the Merger is the affirmative vote of the holders of
\nnot less than a majority of the outstanding Shares. No other vote of the
\nstockholders of the Company is required by law, the Certificate of Incorporation
\nor Bylaws of the Company as currently in effect or otherwise to adopt the plan
\nof merger contained in this Agreement and approve the Merger. Purchaser will
\nhave full voting power with respect to any Shares purchased pursuant to the
\nOffer or the Stockholder Agreement.<\/p>\n
ARTICLE V
\n COVENANTS<\/p>\n
Section 5.01. Conduct of Business by the Company Pending the Closing.
\n ——————————————————-
\nFrom the date of this Agreement to the Effective Time, except as (i) expressly
\nrequired by this Agreement or otherwise with the prior written consent of Parent
\nor (ii) specifically described in the Company’s Disclosure Letter, the Company
\nshall, and shall cause each of its Subsidiaries, to (a) carry on its respective
\nbusinesses in the ordinary course consistent with past practice, (b) use
\nreasonable efforts to preserve intact its current business organizations and
\nkeep available the services of its current officers and employees, (c) use all
\nreasonable efforts to preserve its relationships with customers, suppliers and
\nother Persons with which it has business dealings and (d) comply in all material
\nrespects with all laws and regulations applicable to it or any of its
\nproperties, assets or business. Without limiting the generality of the
\nforegoing, the Company shall not, and it shall cause its Subsidiaries not to,
\nbetween the date of this Agreement and the Effective Time, except as expressly
\nrequired by this Agreement, directly or indirectly, do, or commit to do, any of
\nthe following without the prior written consent of Parent: <\/p>\n
(i) Propose to amend, amend or otherwise change its Certificate of
\nIncorporation or By-Laws or the equivalent organizational documents;<\/p>\n
(ii) Sell, pledge or encumber any stock owned by the Company in any
\nof its Subsidiaries;<\/p>\n
(iii) Issue, reissue, sell, or authorize the issuance, reissuance or
\nsale of any shares of capital stock of any class, any Company Voting Debt or any
\noptions, warrants, convertible securities or other rights of any kind to
\nacquire, or in respect of, any shares of capital stock or any Company Voting
\nDebt or any other ownership interest (including, but not limited to, stock
\nappreciation rights, phantom stock or stock-based performance units) of the
\nCompany or any Subsidiary (except for the issuance of shares of Common Stock
\nrequired to be issued pursuant to the terms of the Company Stock Options
\noutstanding as of the date hereof) or make any other changes in its capital
\nstructure;<\/p>\n
-23-<\/p>\n
(iv) Declare, set aside, make or pay any dividend or other
\ndistribution, whether payable in cash, stock, property or otherwise, with
\nrespect to any of its capital stock (other than dividends or distributions by
\nany wholly owned Subsidiary of the Company to its parent);<\/p>\n
(v) Reclassify, combine, split, subdivide or redeem, purchase or
\notherwise acquire, directly or indirectly, any shares of capital stock of the
\nCompany or any Subsidiary or any securities convertible into or exercisable for
\nany such shares of its capital stock or securities;<\/p>\n
(vi) Acquire (by merger, consolidation, or acquisition of stock or
\nassets) any corporation, partnership or other business organization or division
\nthereof, or any assets in each case involving an amount in excess of $100,000,
\nexcept for purchases of inventory, raw materials, supplies and parts made in the
\nordinary course of business and consistent with past practices;<\/p>\n
(vii) Incur any indebtedness for borrowed money (including by
\nissuance of debt securities) other than borrowings in the ordinary course of
\nbusiness under the Company’s existing credit facility or issue any debt
\nsecurities or warrants or other rights to acquire any debt securities of the
\nCompany or any Subsidiary, or assume, guarantee or endorse (other than for
\ncollection or deposit in the ordinary course of business), or otherwise as an
\naccommodation become responsible for, the obligations of any person, or make any
\nloans or advances or make any capital contributions to, or investments in, any
\nother Person;<\/p>\n
(viii) Enter into, or modify, amend or terminate, any Material
\nContract or agreement;<\/p>\n
(ix) Authorize or make capital expenditures not in the ordinary
\ncourse of business or in excess of $2,000,000 in the aggregate;<\/p>\n
(x) (A) Increase the compensation, pension, welfare or fringe
\nbenefits of any of its directors, officers or employees, except as required by
\ncontractual obligations existing as of the date hereof and except for increases
\nin salary or wages in connection with a promotion or change in position granted
\nto employees (other than executive officers) of the Company or its Subsidiary in
\nthe ordinary course of business in accordance with past practice, (B) grant any
\nincrease in severance or termination pay not currently required to be paid under
\nexisting severance plans or contracts to any director, officer or other employee
\nof the Company or any Subsidiary, including without limitation any increase as a
\nresult of promotion, (C) enter into or amend any new, or amend any existing
\nemployment, consulting or severance agreement or arrangement, including any
\narrangement to provide post-retirement medical or life insurance benefits, with
\nany present or former director, officer or other employee of the Company or any
\nSubsidiary or (D) except as is required by law, establish, adopt, enter into or
\namend or terminate, or take any action to accelerate any rights or benefits
\nunder, or make any material determination not in the ordinary course of business
\nconsistent with past practice under, any collective bargaining agreement,
\nEmployee Benefit Plan or employee benefit arrangement that would have been
\nEmployee Benefit Plans if they were in effect as of the date hereof or (E)
\nforgive any loans to employees, officers or directors or any of their respective
\naffiliates or associates.<\/p>\n
(xi) Except as may be required as a result of a change in law or in
\nUnited States generally accepted accounting principles, change any of the
\naccounting methods, practices or principles used by it;<\/p>\n
-24-<\/p>\n
(xii) Except as may be required to comply with a change in law, make
\nany material tax election, make or change any method of accounting with respect
\nto Taxes, file any amended Tax Returns that may have a material adverse effect
\non the tax position of the Company or any Subsidiary or settle or compromise any
\nmaterial federal, state, local or foreign Tax liability or refund;<\/p>\n
(xiii) Settle or agree to settle any material pending suit, action,
\naudit proceeding, investigation or claim (A) against the Company or any
\nSubsidiary by any Governmental Entity, (B) for an amount in excess of $50,000 in
\nany instance or $500,000 in the aggregate, or (C) which relates to the
\ntransactions contemplated hereby;<\/p>\n
(xiv) Adopt a plan of complete or partial liquidation, dissolution,
\nmerger, consolidation, restructuring, recapitalization or other reorganization
\nof the Company or than the Merger);<\/p>\n
(xv) (A) Pay, discharge or satisfy or agree to pay, discharge or
\nsatisfy any claims, liabilities or obligations (absolute, accrued, asserted or
\nunasserted, contingent or otherwise), other than the payment, discharge or
\nsatisfaction (I) in the ordinary course of business and consistent with past
\npractice or in accordance with their terms, of liabilities reflected or reserved
\nagainst in the most recent consolidated financial statements of the Company
\nincluded in the SEC Reports filed prior to the date of this Agreement or (II) of
\nliabilities incurred in the ordinary course of business and consistent with past
\npractice, (B) cancel any material indebtedness (individually or in the
\naggregate) or waive any claims or rights of substantial value or (C) waive the
\nbenefits of, or agree to modify in any manner, any confidentiality, standstill
\nor similar agreement to which the Company or any Subsidiary is a party;<\/p>\n
(xvi) Sell, lease (as lessor), license or otherwise dispose of or
\nsubject to any lien or encumbrance any properties or assets, except sales of
\nexcess or obsolete assets or real property other than in the ordinary course
\nconsistent with past practice.<\/p>\n
(xvii) Other than in the ordinary course of business and consistent
\nwith past practice, make any loans, advances or capital contributions to, or
\ninvestments in, any other Person (other than wholly-owned Subsidiaries of the
\nCompany);<\/p>\n
(xviii) Except as permitted by Section 5.02, take, or agree to commit
\n ————
\nto take, or fail to take any action that would result or is reasonably likely to
\nresult in any of the conditions to the Offer set forth in Annex I or any of the
\n ——-
\nconditions to the Merger set forth in Article VI not being satisfied, or would
\nmake any representation or warranty of the Company contained herein inaccurate
\nin any material respect at, or as of any time prior to, the Effective Time, or
\nthat would materially impair the ability to consummate the Offer or the Merger
\nin accordance with the terms hereof or materially delay such consummation;<\/p>\n
(xix) Agree in writing or otherwise to take any of the foregoing
\nactions; or<\/p>\n
(xx) Except as may be required by applicable law or the Company’s
\nCertificate of Incorporation or By-Laws, call or hold any stockholders’ meeting
\nother than as required by Section 251 of the DGCL to approve the Merger.<\/p>\n
-25-<\/p>\n
Section 5.02. No Solicitation.
\n —————<\/p>\n
(a) Until this Agreement has been terminated in accordance with Section
\n ——-
\n7.01 (and the payments, if any, required to be made in connection with such
\n—-
\ntermination pursuant to Section 7.02(b) have been made), the Company shall not
\n —————
\nand shall cause its Subsidiaries and its and their officers, directors,
\nemployees, consultants, representatives, affiliates and other agents, including,
\nbut not limited to, investment bankers, attorneys and accountants (collectively,
\nthe “Company Representatives”), not to, directly or indirectly, (i) encourage,
\nsolicit, initiate or facilitate the making of, or take any other action to
\nfacilitate any inquiries or the making of any proposal that constitutes or may
\nreasonably be expected to lead to, any Acquisition Proposal (including, without
\nlimitation, by taking any action that would make Section 203 of the DGCL
\n ———–
\ninapplicable to an Acquisition Proposal), (ii) participate in any way in
\ndiscussions or negotiations with, or furnish or disclose any information or
\nafford any access to the properties, books or records of the Company or any of
\nits Subsidiaries to, any Person (other than Parent or Purchaser or any affiliate
\nor associate of Parent or Purchaser) in connection with any Acquisition
\nProposal, (iii) withdraw or modify, or propose to withdraw or modify, in a
\nmanner adverse to Parent or Purchaser the approval and recommendation of the
\nOffer, the Merger or this Agreement, (iv) approve or recommend, or propose
\npublicly to approve or recommend, any Acquisition Proposal (unless
\ncontemporaneously with such approval or recommendation the Company terminates
\nthis Agreement in accordance with Section 7.01(e)), (v) release any third party
\n —————
\nfrom any confidentiality or standstill agreement to which the Company is a party
\nor fail to enforce to the fullest extent possible, or grant any waiver, request
\nor consent to any Acquisition Proposal under, any such agreement, or (vi) enter
\ninto any agreement, letter of intent or similar document contemplating or
\notherwise relating to any Acquisition Proposal; provided, however, that this
\nSection 5.02 shall not prohibit the Company or the Company Representatives from:
\n————<\/p>\n
(A) (i) issuing a press release or otherwise publicly disclosing
\n the terms of this Agreement (including the provisions of this Section
\n ——-
\n 5.02), the Offer, the Merger or any Acquisition Proposal, (ii) proceeding
\n with the transactions contemplated by this Agreement, (iii) communicating
\n to the holders of the Company’s securities a position with respect to an
\n Acquisition Proposal by a third party contemplated by Rule 14d-9 and Rule
\n 14e-2 promulgated under the Exchange Act, or (iv) making any disclosure to
\n the holders of the Company’s securities which, in the judgment of the Board
\n of Directors (after receiving the advice of legal counsel) is advisable to
\n be made under applicable law (including laws relating to the fiduciary
\n duties of directors); or<\/p>\n
(B) participating in discussions or negotiations with, or
\n furnishing or disclosing nonpublic information to or entering into any
\n confidentiality or standstill or similar agreements with, any Person in
\n response to an unsolicited, bona fide and written Acquisition Proposal that
\n is submitted to the Company by such Person after the date of this Agreement
\n and prior to the date an amount of Shares sufficient to satisfy the Minimum
\n Condition have been accepted for payment pursuant to the Offer if (I) such
\n Acquisition Proposal does not result from a violation of any of the
\n provisions of this Section 5.02, (II) a majority of the members of the
\n ————
\n Board of Directors determines in good faith, after having received the
\n advice of its financial advisor and outside legal counsel, that (x) such
\n Person is reasonably capable, financially and otherwise, of consummating
\n such Acquisition Proposal, (y) such Acquisition Proposal is reasonably
\n likely to lead to a Superior Proposal and (z) failure to do so would result
\n in a breach of the fiduciary duty of the Board of Directors of the Company
\n to the stockholders of the Company under applicable law, and (III) prior to
\n participating in <\/p>\n
-26-<\/p>\n
discussions or negotiations with, or furnishing or disclosing any
\n nonpublic information to, such Person, the Company gives Parent written
\n notice of the identity of such Person and of the Company’s intention to
\n participate in discussions or negotiations with, or furnish or disclose
\n nonpublic information to, such Person, and the Company receives from such
\n Person an executed confidentiality agreement containing terms no less
\n restrictive than the terms of the Confidentiality Agreement.<\/p>\n
Parent and Purchaser agree that neither the Company, the Company
\nRepresentatives, nor any Person who makes an Acquisition Proposal shall be
\ndeemed, by reason of taking actions permitted under the provisos of paragraphs
\n ———-
\n(A) and (B) of this Section 5.02, to have tortiously or otherwise wrongfully
\n— — ————
\ninterfered with or caused a breach of this Agreement or any other agreements,
\ninstruments or documents executed in connection herewith, or tortiously or
\notherwise wrongfully interfered with the Offer, the Merger, the other
\ntransactions contemplated hereby or thereby or the rights of Parent, Purchaser
\nor any of their Affiliates hereunder or thereunder.<\/p>\n
(b) The Company shall, and shall cause its Subsidiaries and the Company
\nRepresentatives to, immediately cease and cause to be terminated any discussions
\nor negotiations, if any, with any other parties that may be ongoing as of the
\ndate hereof with respect to any Acquisition Proposal.<\/p>\n
(c) “Acquisition Proposal” shall mean any proposal or offer, or any
\n ——————–
\nindication of interest in making an offer or proposal, made by any Person or
\ngroup (in each case, whether or not in writing and whether or not delivered to
\nthe stockholders of the Company generally) relating to (i) any direct or
\nindirect acquisition or purchase which is structured to permit such Person or
\ngroup to acquire beneficial ownership of at least 10% of the assets of the
\nCompany or any of its Subsidiaries or of over 10% of any class of equity
\nsecurities of the Company or any of its Subsidiaries, (ii) any tender offer or
\nexchange offer that, if consummated, would result in any Person, other than
\nParent, Purchaser, their Affiliates or any group of which any of them is a
\nmember beneficially owning 10% or more of any class of equity securities of the
\nCompany or any of its Subsidiaries, or (iii) any merger, consolidation, business
\ncombination, sale of substantially all the assets, recapitalization,
\nliquidation, dissolution or similar transaction involving the Company or any of
\nits Subsidiaries. “Superior Proposal” shall mean an unsolicited bona fide
\n —————–
\nwritten proposal made by a third party to acquire all of the issued and
\noutstanding Shares pursuant to a tender offer or a merger or to acquire all of
\nthe properties and assets of the Company on terms and conditions that the Board
\nof Directors determines in good faith, after receiving the written advice of its
\nfinancial advisor and taking into account all the terms and conditions of such
\nproposal (including, without limitation, any expense reimbursement provisions,
\ntermination fees and conditions), is more favorable to the Company’s
\nstockholders from a financial point of view than the transactions contemplated
\nhereby and is reasonably likely to be consummated.<\/p>\n
(d) Nothing contained in this Section 5.02 shall prohibit Purchaser from
\n ————
\npurchasing the Shares pursuant to the Offer or consummating the Merger. Without
\nlimiting any other rights of Parent or Purchaser under this Agreement in respect
\nof any such action, neither any withdrawal or modification by the Company of the
\napproval or recommendation of the Offer or the Merger nor the termination of
\nthis Agreement shall have any effect on the approvals of, and other actions
\nreferred to herein for the purpose of causing Section 203 of the DGCL and the
\nother statutes referred to in Section 4.15 hereof and paragraph 9 of the
\n ————
\nConfidentiality Agreement to be inapplicable to, this Agreement and the
\nStockholder Agreement and the transactions contemplated hereby and thereby,
\nwhich approvals and actions are irrevocable.<\/p>\n
-27-<\/p>\n
Section 5.03. Access to Information.
\n ———————-<\/p>\n
(a) Subject to applicable law, during the period commencing on the date
\nhereof and ending on the earlier of (i) the Closing Date and (ii) the date on
\nwhich this Agreement is terminated pursuant to Section 7.01, the Company shall,
\n ————
\nand shall cause each of its Subsidiaries to, upon reasonable notice, afford
\nParent and Purchaser, and their respective counsel, accountants, consultants and
\nother authorized representatives, complete access during normal business hours
\nto the employees, properties (including plants, offices, warehouses and other
\nfacilities), books and records of the Company and its Subsidiaries, and cause
\nthe Company’s and its Subsidiaries’ independent public accountants and tax
\nadvisors to provide access to their work information so that the Parent and
\nPurchaser may have the opportunity to make such investigations as they shall
\ndesire of the affairs of the Company and its Subsidiaries. The Company shall
\nfurnish as promptly as practicable to Parent and Purchaser a copy of each form,
\nreport, schedule, statement, registration statement and other document filed by
\nit or its Subsidiaries during such period pursuant to the requirements of
\nfederal or state securities laws or the DGCL. The Company agrees to cause its
\nofficers and employees, in a manner consistent with the fulfillment of their
\nongoing duties and obligations, to furnish such additional financial and
\noperating data and other information and respond to such inquiries as Parent and
\nPurchaser shall from time to time reasonably request.<\/p>\n
(b) Parent hereby confirms to the Company that the Confidentiality
\nAgreement is in full force and effect.<\/p>\n
Section 5.04. Stockholders Approval of the Merger. Following the
\n ———————————–
\nconsummation of the Offer, the Company shall promptly take all action necessary
\nin accordance with the DGCL and its Certificate of Incorporation and By-Laws to
\nconvene the Company Stockholders’ Meeting, or, at the option of Parent, to seek
\napproval of the Merger by written consent in lieu of the Company Stockholder’s
\nMeeting. The Company shall use its reasonable efforts to solicit from
\nstockholders of the Company proxies to the extent a stockholder meeting is to be
\nheld in favor of the Merger (or written consent is to be obtained in lieu
\nthereof) and shall take all other action necessary or, in the reasonable opinion
\nof Parent, advisable to secure any vote (or written consent) of stockholders
\nrequired by the DGCL to effect the Merger. Parent agrees that it will vote, or
\ncause to be voted, at the Company Stockholders’ Meeting all Shares then owned by
\nit or Purchaser or any of Parent’s other subsidiaries and Affiliates in favor of
\nthe Merger and the adoption of this Agreement (or deliver written consents
\nconforming to the requirements of the DGCL in lieu thereof). Notwithstanding the
\nforegoing, if Purchaser or any other subsidiary of Parent shall acquire at least
\n90% of the outstanding Shares, and provided that the conditions set forth in
\nArticle VI shall have been satisfied or waived, the Company shall use its best
\n———
\nefforts to take all necessary and appropriate action to cause the Merger to
\nbecome effective as soon as practicable after such acquisition, without the
\napproval of the stockholders of the Company, in accordance with Section 253 of
\nthe DGCL.<\/p>\n
Section 5.05. Proxy Statement. As promptly as practicable after the
\n —————
\nconsummation of the Offer if required by the Exchange Act, the Company shall
\nprepare and file the Proxy Statement with the SEC subject to the prior review
\nand approval of Parent and Purchaser (which approval shall not be unreasonably
\nwithheld), and shall use all reasonable efforts to have it cleared by the SEC.
\nThe Company shall obtain and furnish the information required to be included in
\nthe Proxy Statement, shall provide Parent and Purchaser with, and consult with
\nParent and Purchaser regarding, any comments that may be received from the SEC
\nor its staff with respect thereto, shall, subject to the prior review and
\napproval of Parent and Purchaser (which approval shall not be unreasonably
\nwithheld), respond promptly to any such comments made by the SEC or its staff
\nwith respect to the <\/p>\n
-28-<\/p>\n
Proxy Statement and shall cause the Proxy Statement to be mailed to the
\nCompany’s shareholders at the earliest practicable date. The Proxy Statement
\nshall contain the recommendation of the Board of Directors that the Company’s
\nstockholders approve and adopt this Agreement and the Merger.<\/p>\n
Section 5.06. Public Announcements. So long as this Agreement is in effect,
\n ——————–
\nParent and the Company shall consult with each other before issuing, and provide
\neach other a reasonable opportunity to review and comment upon, any press
\nrelease or other public statements with respect to the Offer or the Merger and
\nshall not issue, or permit their affiliates to issue, any such press release or
\nmake any such public statement without the written consent of the other party,
\nexcept as may be required by law or in accordance with any listing agreement
\nwith any securities exchange on which such party’s securities are listed.<\/p>\n
Section 5.07. Reasonable Best Efforts; Cooperation.
\n ————————————-<\/p>\n
(a) Upon the terms and subject to the conditions hereof, each of the
\nparties hereto shall use its reasonable best efforts to obtain in a timely
\nmanner all necessary waivers, consents and approvals and to effect all necessary
\nregistrations and filings, and to take, or cause to be taken, all other actions
\nand to do, or cause to be done, all other things necessary, proper or advisable
\nto consummate and make effective as promptly as practicable the transactions
\ncontemplated by this Agreement; provided, however, that nothing in this
\nAgreement (except as expressly provided for in Section 1.01) shall obligate
\n ————
\nParent or Purchaser to extend the Offer. Without limiting the foregoing, each of
\nthe parties hereto shall (i) cooperate in responding to inquiries from, and
\nmaking presentations to, regulatory authorities and customers, (ii) defend
\nagainst and respond to any action, suit, proceeding, or investigation, whether
\njudicial or administrative, challenging or relating to this Agreement or the
\ntransactions contemplated hereby, including seeking to have any stay or
\ntemporary restraining order entered, by any court or other Governmental Entity
\nvacated or reversed, (iii) cooperate in the preparation and filing of the Offer
\nDocuments, the Schedule TO, the Schedule 14D-9 and the Proxy Statement and (iv)
\npromptly make all regulatory filings and applications, including without
\nlimitation any required filings and responses to requests for additional
\ninformation under the HSR Act and Foreign Antitrust Laws, and any amendments
\nthereto as are necessary for the consummation of the transactions contemplated
\nby this Agreement.<\/p>\n
(b) Nothing in this Agreement shall obligate Parent, Purchaser or any of
\ntheir respective Subsidiaries or affiliates to agree (i) to limit in any manner
\nor not to exercise any rights of ownership of any securities (including the
\nShares), or to divest, dispose of or hold separate any securities or all or any
\nportion of their respective businesses, assets or properties or of the
\nbusinesses, assets or properties of the Company or any of its Subsidiaries or
\n(ii) to limit in any material manner the ability of such entities (A) to conduct
\ntheir respective businesses or own such assets or properties or to conduct the
\nbusinesses or own the properties or assets of the Company and its Subsidiaries
\nor (B) to control their respective businesses or operations or the businesses or
\noperations of the Company and its Subsidiaries.<\/p>\n
Section 5.08. Indemnification.
\n —————-<\/p>\n
(a) The Certificate of Incorporation and the By-Laws of the Surviving
\nCorporation shall contain the provisions in favor of the directors, officers,
\nemployees or agents of the Company, or of any other corporation, partnership,
\njoint venture, trust or other enterprise with which he or she is or was serving
\nin such capacity at the request of the Company, with respect to indemnification
\nand exculpation from liability set forth in the Company’s Certificate of
\nIncorporation and By-Laws on <\/p>\n
-29-<\/p>\n
the date of this Agreement, which provisions shall not be amended, repealed or
\notherwise modified for a period of six years from the Effective Time in any
\nmanner that would adversely affect the rights thereunder of individuals who on
\nor prior to the Effective Time were directors, officers or employees of the
\nCompany, or any of its subsidiaries unless such modification is required by law.
\nParent shall guarantee the obligations of the Surviving Corporation with respect
\nto the indemnification provisions contained in the Surviving Corporation’s
\nCertificate of Incorporation and By-Laws and in any currently existing
\nagreements with respect to indemnification between the Company and any of its
\ncurrent and former officers, directors or employees of the Company, to the
\nextent such agreements are listed in the Disclosure Letter and copies of the
\nforms thereof are provided by the Company.<\/p>\n
(b) For six years after the Effective Time, the Surviving Corporation shall
\nmaintain in effect, in respect of acts or omissions occurring prior to the
\nEffective Time, policies of directors’ and officers’ liability insurance
\ncovering each person currently covered by such policies on terms with respect to
\ncoverage and amount no less favorable in any material respect than those of such
\npolicy in effect on the date hereof; provided, however, that in satisfying its
\nobligation under this Section 5.08(b) the Surviving Corporation shall not be
\n —————
\nobligated to pay annual premiums in excess of 200% of the amount per annum the
\nCompany is currently paying for such coverage; provided further that if the
\nannual premiums of such insurance coverage exceeds such amount, the Surviving
\nCorporation shall be obligated to obtain policies with as much coverage as is
\navailable for a cost not exceeding such amount.<\/p>\n
(c) The provisions of this Section 5.08 are intended for the benefit of,
\n ————
\nand shall be enforceable by, the respective indemnified parties. The obligations
\nof Parent and Purchaser under this Section 5.08 shall not be terminated or
\n ————
\nmodified in such a manner as to adversely affect any indemnified party to whom
\nthis Section 5.08 applies without the consent of such party.
\n ————<\/p>\n
Section 5.09. Takeover Statutes. If any state takeover statute or other
\n —————–
\nsimilar statute or regulation becomes or is deemed to become applicable to the
\nOffer, the Merger, this Agreement or any of the transactions contemplated
\nhereby, the Company shall promptly take all action necessary to render such
\nstatute or regulation inapplicable to all of the foregoing.<\/p>\n
Section 5.10. Employee Benefits. Each employee of the Company or any of its
\n —————–
\nsubsidiaries immediately prior to the Effective Time will become an employee of
\nthe Surviving Corporation as of the Effective Time (“Company Employees”).
\n —————–
\nPurchaser will provide to Company Employees for a period of one year after the
\nEffective Time, compensation, employee welfare benefits, tax-qualified
\nretirement benefits and other employee and fringe benefits that are, in the
\naggregate, of at least equal value to those currently in effect for such Company
\nEmployees. Aggregate comparable value shall be determined separately for each
\nprincipal line of business in which the Company and its Subsidiaries are
\nengaged. Purchaser shall waive any pre-existing condition clause or waiting
\nperiod requirement in welfare benefit plans or programs (except to the extent
\nsuch condition or waiting period in comparable plans of the Company would apply
\nto a participant or beneficiary after the Closing if such plans continued after
\nthe Closing) and give credit for deductible amounts and co-payments paid by
\nCompany Employees during the current deductible year. Purchaser shall grant each
\nCompany Employee credit under its tax-qualified retirement plans, for purposes
\nof eligibility and vesting (but not for purposes of benefit accrual), for
\nCompany Employee’s service with the Company and its Affiliates prior to the
\nEffective Time. Notwithstanding anything in this Agreement to the contrary,
\nParent shall cause the Surviving Corporation to honor and assume the written
\nemployment agreements (amended in accordance with Section 4.08(q)), severance
\n —————
\nagreements, indemnification agreements with existing directors and officers of
\nthe Company, incentive <\/p>\n
-30-<\/p>\n
arrangements and other agreements listed on the Company’s Disclosure Letter, all
\nas in effect on the date of this Agreement. The provisions of this Section 5.10
\n ————
\nare not intended to create any enforceable rights by, current or former
\nemployees, officers and directors of the Company and their respective heirs and
\nlegal representatives.<\/p>\n
Section 5.11. Notification of Certain Matters. The Company shall give
\n ——————————-
\nprompt notice to Parent and Purchaser, and Parent or Purchaser, as the case may
\nbe, shall give prompt notice to the Company, of the occurrence, or
\nnon-occurrence, of any event the occurrence, or non-occurrence, of which is
\nlikely (a) to cause any representation or warranty of such party contained in
\nthis Agreement to be untrue or inaccurate (in the case of any representation or
\nwarranty not limited by materiality or Material Adverse Effect, in any material
\nrespect) if made as of any time at or prior to the Effective Time or (b) to
\nresult in any material failure of such party to comply with or satisfy any
\ncovenant, condition or agreement to be complied with or satisfied hereunder.<\/p>\n
Section 5.12. Subsequent Filings. Until the Effective Time, the Company
\n ——————
\nwill timely file with the SEC each form, report and document required to be
\nfiled by the Company under the Exchange Act and will promptly deliver to Parent
\nand Purchaser copies of each such report filed with the SEC. As of their
\nrespective dates, none of such reports shall contain any untrue statement of a
\nmaterial fact or omit to state a material fact required to be stated therein or
\nnecessary to make the statements therein, in light of the circumstances under
\nwhich they were made, not misleading. The audited consolidated financial
\nstatements and unaudited interim financial statements of the Company included in
\nsuch reports shall be prepared in accordance with United States generally
\naccepted accounting principles applied on a consistent basis (except as may be
\nindicated in the notes thereto) and shall fairly present the financial position
\nof the Company and its consolidated Subsidiaries as at the dates thereof and the
\nresults of their operations and changes in financial position for the periods
\nthen ended, except that the unaudited interim financial statements were or are
\nsubject to normal and recurring year-end adjustments which should not be
\nmaterially adverse to the Company and its Subsidiaries taken as a whole.<\/p>\n
ARTICLE VI
\n CONDITIONS TO THE MERGER<\/p>\n
Section 6.01. Conditions. The respective obligations of each party to
\n ———-
\neffect the Merger shall be subject to the satisfaction or waiver, where
\npermissible, on or prior to the Effective Time of the following conditions:<\/p>\n
(a) Purchaser shall have made, or caused to be made, the Offer and shall
\nhave accepted for payment and paid for Shares in an amount sufficient to satisfy
\nthe Minimum Condition and otherwise pursuant to the Offer;<\/p>\n
(b) The Merger and this Agreement shall have been approved and adopted by
\nthe requisite vote of the stockholders of the Company, if required by the DGCL;
\nand<\/p>\n
(c) No statute, rule, regulation, judgment, writ, decree, order or
\ninjunction shall have been promulgated, enacted, entered or enforced, and no
\nother action shall have been taken, by any Governmental Entity that in any of
\nthe foregoing cases has the effect of making illegal or directly or indirectly
\nrestraining, prohibiting or restricting the consummation of the Merger (provided
\nthat each party hereto shall use its reasonable best efforts to have vacated or
\nreversed, in accordance with Section 5.07, any applicable judgment, writ,
\n ————
\ndecree, order or injunction).<\/p>\n
-31-<\/p>\n
ARTICLE VII
\n TERMINATION, AMENDMENT AND WAIVER<\/p>\n
Section 7.01. Termination. This Agreement may be terminated and the Merger
\n ———–
\nmay be abandoned at any time prior to the Effective Time, whether prior to or
\nafter approval of matters presented in connection with the Merger by the
\nstockholders of the Company (with any termination by Parent also being an
\neffective termination by Purchaser):<\/p>\n
(a) By the mutual written consent of Parent and the Company;<\/p>\n
(b) By either of Parent or the Company if any statute, law, rule or
\nregulation shall have been promulgated that prohibits the consummation of the
\nOffer or the Merger or if any Governmental Entity of competent jurisdiction
\nshall have issued an order, decree or ruling or taken any other action (which
\norder, decree or ruling or other action each party hereto shall use its
\nreasonable best efforts to have vacated or reversed in accordance with Section
\n ——-
\n5.07(a)), in each case restraining, enjoining or otherwise prohibiting the
\n——-
\ntransactions contemplated by this Agreement and such order, decree, ruling or
\nother action shall have become final and non-appealable;<\/p>\n
(c) By the Company if (i) Purchaser fails to commence the Offer in
\nviolation of Section 1.01, (ii) as a result of the failure of one or more
\n ————
\nconditions set forth in Annex I, Purchaser shall not have accepted for payment
\n ——-
\nand paid for Shares pursuant to the Offer in accordance with the terms thereof
\non or before December 18, 2000; provided, however, that either Purchaser or
\nCompany shall have the option, in their respective sole discretion, to extend
\nsuch date for an additional period not to exceed 60 business days if the sole
\nreason that the Purchaser has not accepted for payment and paid for Shares
\npursuant to the Offer is the failure of the applicable waiting period under the
\nHSR Act or any Foreign Antitrust Laws to expire or failure to obtain any
\nrequired governmental or regulatory approval (the “Outside Date”) or (iii)
\n ————
\nPurchaser fails to purchase validly tendered Shares in violation of the terms of
\nthis Agreement;<\/p>\n
(d) By Parent if, due to an occurrence or circumstance which would result
\nin a failure to satisfy any of the conditions to the Offer, Purchaser shall have
\n(i) not commenced the Offer within the time required by Section 1.01, (ii)
\n ————
\nterminated the Offer without purchasing any Shares pursuant to the Offer or
\n(iii) failed to accept for payment Shares pursuant to the Offer prior to the
\nOutside Date;<\/p>\n
(e) By the Company, prior to the purchase of Shares pursuant to the Offer,
\nif (i) the Company has complied with its obligations under Section 5.02 and (ii)
\n ————
\nthe Company has given Parent and Purchaser prior written notice, of not less
\nthan the greater of seventy-two hours and two full business days, of its
\nintention to terminate this Agreement and accept or recommend a Superior
\nProposal and of the material terms and conditions of such Superior Proposal,
\nprovided that the termination described in this Section 7.01(e) shall not be
\n —————
\neffective unless and until the Company shall have paid to Parent the amounts
\nspecified in Section 7.02(b);
\n —————<\/p>\n
(f) By Parent, prior to the purchase of Shares pursuant to the Offer, if
\nthe Company breaches any of its covenants in Section 5.02 or the Board of
\n ————
\nDirectors of the Company shall have resolved to effect any of the actions
\nreferred to in the first paragraph of Section 5.02(a);
\n —————<\/p>\n
(g) By Parent, prior to the purchase of Shares pursuant to the Offer, if
\nthe Company shall have breached any of its representations, warranties or
\ncovenants contained in this Agreement, which <\/p>\n
-32-<\/p>\n
breach would give rise to a failure of a condition set forth in Annex I and
\n ——-
\nwhich breach has not been or is incapable of being cured by the Company prior to
\nthe Outside Date; or<\/p>\n
(h) By the Company, prior to the purchase of Shares pursuant to the Offer,
\nif the Parent or Purchaser shall have breached any of their representations,
\nwarranties or covenants contained in this Agreement, which breach would cause
\nParent or Purchaser to be unable to complete the Offer and the Merger and which
\nbreach has not been or is incapable of being cured prior to the Outside Date.<\/p>\n
Section 7.02. Effect of Termination.
\n ———————-<\/p>\n
(a) In the event of termination of this Agreement by either the Company or
\nParent or Purchaser as provided in Section 7.01, (i) this Agreement shall
\n ————
\nforthwith become void and have no effect, without any liability or obligation on
\nthe part of Parent, Purchaser or the Company, except that (i) Article VIII and
\nthis Section 7.02 shall survive any termination of this Agreement and (ii)
\n ————
\nnothing in this Section 7.02 shall relieve any party to this Agreement for
\n ————
\nliability for breach of this Agreement.<\/p>\n
(b) If this Agreement is terminated pursuant to (i) Section 7.01(e), (ii)
\n —————
\nSection 7.01(f) or (iii) Section 7.01(c)(ii) or Section 7.01(d) and, in the case
\n————— ——————- —————
\nof this clause (iii) only, at any time after the date of this Agreement and
\nprior to such termination an Acquisition Proposal shall have been publicly
\nannounced or otherwise publicly communicated to the stockholders of the Company
\ngenerally and as of the date of such termination such Acquisition Proposal shall
\nnot have been withdrawn or lapsed in accordance with its terms, then the Company
\nshall pay to Parent in immediately available funds an amount equal to $20
\nmillion. If such amount becomes payable pursuant to clause (i), (ii) or (iii) of
\n ————————-
\nthis Section 7.02(b), such amount shall be payable simultaneously with such
\n —————
\ntermination (in the case of termination by the Company) or within two business
\ndays thereafter (in the case of termination by Parent).<\/p>\n
(c) The Company acknowledges that the agreements contained in Section
\n ——-
\n7.02(b) are an integral part of the transactions contemplated by this Agreement,
\n——-
\nand that, without these agreements, Parent and Purchaser would not enter into
\nthis Agreement; accordingly, if the Company fails to pay the amount due pursuant
\nto Section 7.02(b), and, in order to obtain such payment, Parent or Purchaser
\n —————
\ncommences a suit which results in a judgment against the Company for the amounts
\nset forth in Section 7.02(b), the Company shall pay to Parent or Purchaser, as
\n ————–
\nthe case may be, its costs and expenses (including attorneys’ fees and expenses)
\nin connection with such suit, together with interest on the amount of the fee at
\nthe prime rate of Citibank N.A. in effect on the date such payment was required
\nto be made.<\/p>\n
Section 7.03. Amendment. Subject to Section 1.03, this Agreement may be
\n ——— ————
\namended by the parties hereto by action taken by the respective Board of
\nDirectors of the Company, Parent and Purchaser or by the respective officers
\nauthorized by such Boards of Directors at any time prior to the Effective Time
\n(notwithstanding any stockholder approval); provided, however, that, after
\napproval of the Merger by the stockholders of the Company, no amendment may be
\nmade which by law requires further approval by such stockholders without such
\nfurther approval. This Agreement may not be amended except by an instrument in
\nwriting signed by the parties hereto.<\/p>\n
Section 7.04. Extension; Waiver. Subject to Section 1.03, at any time prior
\n —————– ————
\nto the Effective Time, any party hereto may (a) extend the time for the
\nperformance of any of the obligations or other <\/p>\n
-33-<\/p>\n
acts of the other parties hereto, (b) waive any inaccuracies in the
\nrepresentations and warranties of the other parties hereto contained herein or
\nin any document delivered pursuant hereto, and (c) waive compliance by the other
\nparties hereto with any of their agreements or conditions contained herein. Any
\nagreement on the part of a party hereto to any such extension or waiver shall be
\nvalid only if set forth in an instrument in writing signed by such party. The
\nfailure of any party hereto to assert any of its rights under this Agreement or
\notherwise shall not constitute a waiver of those rights.<\/p>\n
ARTICLE VIII
\n GENERAL PROVISIONS<\/p>\n
Section 8.01. Non-Survival of Representations and Warranties. The
\n ———————————————-
\nrepresentations and warranties in this Agreement shall not survive beyond the
\nconsummation of the Offer. The covenants and agreements set forth herein shall
\nsurvive the Effective Time indefinitely (except to the extent a shorter period
\nof time is explicitly specified therein or as otherwise provided in Section
\n7.02).<\/p>\n
Section 8.02. Expenses. Whether or not the Merger is consummated, except as
\n ——–
\nexpressly set forth herein, all fees, costs and expenses incurred in connection
\nwith this Agreement and the transactions contemplated hereby shall be paid by
\nthe party incurring such fees, costs and expenses.<\/p>\n
Section 8.03. Entire Agreement. This Agreement (including the documents and
\n —————-
\nthe instruments referred to herein) constitutes the entire agreement and
\nsupersedes any and all other prior agreements and understandings, both written
\nand oral, among the parties with respect to the subject matter hereof.<\/p>\n
Section 8.04. Assignment. Neither this Agreement nor any of the rights,
\n ———-
\ninterests or obligations hereunder shall be assigned by any of the parties
\nhereto (whether by operation of law or otherwise) without the prior written
\nconsent of the other parties (except that Parent may assign its rights and
\nPurchaser may assign its rights, interest and obligations to any Subsidiary of
\nParent without the consent of the Company; provided that no such assignment
\nshall relieve Parent of any liability for any breach by such assignee). Subject
\nto the preceding sentence, this Agreement shall be binding upon, inure to the
\nbenefit of and be enforceable by the parties and their respective successors and
\nassigns.<\/p>\n
Section 8.05. Parties in Interest. Except as otherwise provided herein,
\n ——————-
\nthis Agreement shall be binding upon and inure solely to the benefit of each
\nparty hereto, and nothing in this Agreement, express or implied, is intended to
\nconfer upon any other person any rights or remedies of any nature whatsoever
\nunder or by reason of this Agreement.<\/p>\n
Section 8.06. Validity. If any term or other provision of this Agreement is
\n ——–
\ninvalid, illegal or incapable of being enforced by any rule of law, or public
\npolicy, all other conditions and provisions of this Agreement shall nevertheless
\nremain in full force and effect so long as the economic or legal substance of
\nthe transactions contemplated hereby is not affected in any manner adverse to
\nany party. Upon such determination that any term or other provision is invalid,
\nillegal or incapable of being enforced, the parties hereto shall negotiate in
\ngood faith to modify this Agreement so as to effect the original intent of the
\nparties as closely as possible in an acceptable manner to the end that the
\ntransactions contemplated hereby are consummated to the maximum extent possible.<\/p>\n
-34-<\/p>\n
Section 8.07. Notices. All notices and other communications given or made
\n ——-
\npursuant hereto shall be in writing (and shall be deemed to have been duly given
\nor made when received by the addressee) by delivery in person, by facsimile,
\ncable, telecopy, telegram or telex or by registered or certified mail (postage
\nprepaid, return receipt requested), in each case to the parties at the following
\naddresses (or at such other address for a party as shall be specified by like
\nnotice):<\/p>\n
(a) If to Parent or Purchaser:<\/p>\n
United Technologies Corporation
\n United Technologies Building
\n One Financial Plaza
\n Hartford, Connecticut 06101
\n Attention: General Counsel
\n Facsimile: 860-728-7862<\/p>\n
With a copy to:<\/p>\n
Cleary, Gottlieb, Steen & Hamilton
\n One Liberty Plaza
\n New York, NY 10006
\n Attention: Christopher E. Austin
\n Facsimile: (212) 225-3999<\/p>\n
(b) If to the Company:<\/p>\n
Specialty Equipment Companies, Inc.
\n 1245 Corporate Blvd., Suite 401
\n Aurora, Illinois 60504
\n Attention: Jeffrey P. Rhodenbaugh
\n Facsimile: (630) 585-9450<\/p>\n
With a copy to:<\/p>\n
Sonnenschein Nath & Rosenthal
\n 8000 Sears Tower
\n Chicago, Illinois 60606
\n Attention: Andrew L. Weil
\n Michael D. Rosenthal
\n Facsimile: (312) 876-7934<\/p>\n
Section 8.08. Governing Law. This Agreement shall be governed by, and
\n ————-
\nconstrued in accordance with, the laws of the State of Delaware applicable to
\ncontracts executed in and to be performed entirely within that State, regardless
\nof the laws that might otherwise govern under applicable principles of conflicts
\nof laws thereof. In addition, each of the parties hereto (a) consents to submit
\nitself to the personal jurisdiction of any federal court located in the State of
\nDelaware or any Delaware state court in the event any dispute arises out of this
\nAgreement or any of the transactions contemplated by this Agreement, (b) agrees
\nthat it will not attempt to deny or defeat such personal jurisdiction by motion
\nor other request for leave from any such court and (c) agrees <\/p>\n
-35-<\/p>\n
that it will not bring any action relating to this Agreement or any of the
\ntransaction contemplated by this Agreement in any court other than a federal or
\nstate court sitting in the State of Delaware.<\/p>\n
Section 8.09. Waiver of Jury Trial. Each of the parties to this Agreement
\n ——————–
\nhereby irrevocably waives all right to a trial by jury in any action, proceeding
\nor counterclaim arising out of or relating to this Agreement or the transactions
\ncontemplated hereby.<\/p>\n
Section 8.10. Specific Performance. The parties hereto agree that
\n ——————–
\nirreparable damage would occur in the event that any of the provisions of this
\nAgreement were not performed in accordance with their specific terms or were
\notherwise breached. It is accordingly agreed that the parties shall be entitled
\nto an injunction or injunctions to prevent breaches of this Agreement and to
\nenforce specifically the terms and provisions hereof in any federal or state
\ncourt sitting in Delaware, this being in addition to any other remedy to which
\nthey are entitled at law or in equity.<\/p>\n
Section 8.11. Headings. The headings contained in this Agreement are for
\n ——–
\nreference purposes only and shall not affect in any way the meaning or
\ninterpretation of this Agreement.<\/p>\n
Section 8.12. Counterparts. This Agreement may be executed in one or more
\n ————
\ncounterparts, and by the different parties hereto in separate counterparts, each
\nof which when executed shall be deemed to be an original but all of which shall
\nconstitute one and the same agreement.<\/p>\n
Section 8.13. Construction. This Agreement is a product of negotiation
\n ————
\nbetween the parties, and the language of all parts of this Agreement shall in
\nall cases be construed as a whole, according to its fair meaning, and not
\nstrictly for or against either party, and no presumptions or rules of
\ninterpretation based upon the identity of the party preparing or drafting the
\nAgreement, or any part thereof, shall be applicable or invoked.<\/p>\n
Section 8.14. Interpretation of Certain Terms. Any words herein used in the
\n ——————————-
\nsingular shall denote the plural as the context so requires and when used herein
\nin the plural shall denote the singular as the context so requires. Pronouns
\nused herein, whether masculine, feminine, or neuter, shall be interpreted as the
\ncontext so requires. The word “including” shall mean “including, without
\n ———
\nlimitation.” Any reference to any federal, state, or local law shall be deemed
\nalso to refer to all rules and regulations promulgated thereunder, unless the
\ncontext requires otherwise.<\/p>\n
Section 8.15. Definitions. For purposes of this Agreement, the term:
\n ———–<\/p>\n
“Acquisition Proposal” shall have the meaning set forth in Section
\n ——————– ——-
\n5.02(c).
\n——- <\/p>\n
“Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated
\n ———
\nunder the Exchange Act.<\/p>\n
“Agreement” shall have the meaning set forth in the preamble.
\n ——— <\/p>\n
“Annual Report” shall have the meaning set forth in the introductory
\n ————-
\nparagraph of Article IV.
\n ———- <\/p>\n
“Board of Directors” shall have the meaning set forth in the recitals
\n ——————
\nof this Agreement.<\/p>\n
-36-<\/p>\n
“business day” shall have the meaning set forth in Rule 14d-1(g)(3)
\n ————
\n under the Exchange Act.<\/p>\n
“Certificates” shall have the meaning set forth in Section 2.07(b).
\n ———— ————— <\/p>\n
“Closing” shall have the meaning set forth in Section 2.02(a).
\n ——- ————— <\/p>\n
“Closing Date” shall have the meaning set forth in Section 2.02(a).
\n ———— ————— <\/p>\n
“Code” shall mean the Internal Revenue Code of 1986, as amended.
\n —- <\/p>\n
“Common Stock” shall have the meaning set forth in the recitals of
\n ————
\n this Agreement.<\/p>\n
“Company” shall have the meaning set forth in the preamble of this
\n ——-
\n Agreement.<\/p>\n
“Company’s Disclosure Letter” shall have the meaning set forth in the
\n —————————
\n introductory paragraph of Article IV.
\n ———- <\/p>\n
“Company Employees” shall have the meaning set forth in Section 5.10.
\n —————– ———— <\/p>\n
“Company’s Financial Advisor” shall have the meaning set forth in
\n —————————
\n Section 1.02(a).
\n ————— <\/p>\n
“Company Intellectual Property Rights” shall mean all Intellectual
\n ————————————
\n Property Rights owned or held by the Company or any of its
\n Subsidiaries or otherwise used in the business of the Company and its
\n Subsidiaries.<\/p>\n
“Company Permits” shall have the meaning set forth in Section 4.11.
\n ————— ———— <\/p>\n
“Company Representatives” shall have the meaning set forth in Section
\n ———————– ——-
\n 5.02(a).
\n ——- <\/p>\n
“Company Securities” shall have the meaning set forth in Section
\n —————— ——-
\n 4.02(a).
\n ——- <\/p>\n
“Company Stockholders’ Meeting” shall have the meaning set forth in
\n —————————–
\n Section 4.13.
\n ———— <\/p>\n
“Company Stock Option” shall have the meaning set forth in Section
\n ——————– ——-
\n 2.08(a).
\n ——- <\/p>\n
“Company Voting Debt” shall have the meaning set forth in Section
\n ——————- ——-
\n 4.02(a).
\n ——- <\/p>\n
“Confidentiality Agreement” shall have the meaning set forth in
\n ————————-
\n Section 1.02(a).
\n ————— <\/p>\n
“Control” (including the terms “controlled by” and “under common
\n ——-
\n control with”) shall have the meaning set forth in Rule 12b-2
\n promulgated under the Exchange Act.<\/p>\n
“DGCL” shall mean the Delaware General Corporation Law.
\n —- <\/p>\n
“Dissenting Shares” shall have the meaning set forth in Section
\n —————– ——-
\n 2.06(a).
\n ——- <\/p>\n
“Effective Time” shall have the meaning set forth in Section 2.02(b).
\n ————– ————— <\/p>\n
“Employee Benefit Plans” shall have the meaning set forth in Section
\n ———————- ——-
\n 4.08(a).
\n ——-
\n -37-<\/p>\n
“Environmental Disclosure Requirements” shall mean any Environmental
\n ————————————-
\n Laws requiring notification, registration, or filing with any
\n governmental agency, prior to the sale or transfer of control of an
\n establishment, of the actual or threatened presence or Release into
\n the environment, or the use, disposal, or handling of Hazardous
\n Substance on, at, under, or near the establishment for which control
\n is to be transferred.<\/p>\n
“Environmental Law” shall mean any federal, state, municipal, foreign
\n —————–
\n or other statutes, laws, ordinances, rules or regulations and common
\n law principles relating to regulation of pollution or the protection
\n of human health or the environment, including without limitation the
\n following federal statutes and their state counterparts, as each may
\n be amended from time to time, and any regulations promulgated
\n thereunder: the Atomic Energy Act, the Clean Air Act, the Clean Water
\n Act, the Comprehensive Environmental Response, Compensation, and
\n Liability Act, the Federal Insecticide, Fungicide, and Rodenticide
\n Act, the Hazardous Materials Transportation Act, the Occupational
\n Safety and Health Act, the Resource Conservation and Recovery Act and
\n the Safe Drinking Water Act.<\/p>\n
“Environmental Liability” shall have the meaning set forth in Section
\n ———————– ——-
\n 4.10.
\n —- <\/p>\n
“Environmental Permits” shall have the meaning set forth in Section
\n ——————— ——-
\n 4.10.
\n —- <\/p>\n
“ERISA” shall mean the Employee Retirement Income Security Act of
\n —–
\n 1974, as amended.<\/p>\n
“ERISA Affiliate” shall have the meaning set forth in Section 4.08(a).
\n ————— ————— <\/p>\n
“Exchange Act” shall mean the Securities Exchange Act of 1934, as
\n ————
\n amended (including the rules and regulations promulgated thereunder).<\/p>\n
“Foreign Antitrust Laws” shall have the meaning set forth in Section
\n ———————- ——-
\n 3.03(b).
\n ——- <\/p>\n
“Foreign Plan” shall have the meanings set forth in Section 4.08(g).
\n ———— ————— <\/p>\n
“Form 10-K” shall have the meaning set forth in the introductory
\n ———
\n paragraph of Article IV.
\n ———- <\/p>\n
“Governmental Entity” shall have the meaning set forth in Section
\n ——————- ——-
\n 3.03(b).
\n ——- <\/p>\n
“Hazardous Substances” shall mean any pollutant or contaminant or any
\n ——————–
\n hazardous or toxic substance, waste, chemical, or material, including
\n without limitation as those terms are defined in any Environmental
\n Law, and including without limitation (a) petroleum and petroleum
\n products including crude oil and any fractions thereof; (b) natural
\n gas, synthetic gas, and mixtures thereof; (c) radon; and (d) asbestos
\n and asbestos-containing materials.<\/p>\n
“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act
\n ——-
\n of 1976, as amended.<\/p>\n
“Independent Directors” shall have the meaning set forth in Section
\n ——————— ——-
\n 1.03.
\n —- <\/p>\n
“Intellectual Property Rights” shall mean all proprietary and other
\n —————————-
\n rights, including rights granted under license, in and to the
\n following: (i) trademarks, service marks, trademark<\/p>\n
-38-<\/p>\n
registrations, service mark registrations, trade names, applications
\n for registration of trademarks and service marks, and the goodwill
\n associated therewith; (ii) copyrights, copyright registrations and
\n applications for registration of copyrights; (iii) patents, design
\n patents and utility patents, all applications for grant of any such
\n patents pending as of the date hereof or as of the Effective Time or
\n filed within five years prior to the date hereof, and all reissues,
\n divisions, continuations-in-part and extensions thereof; (iv) computer
\n software, including source code, object code, algorithms, databases,
\n and all related documentation; (v) technical documentation, trade
\n secrets, designs, inventions, processes, formulae, know- how,
\n operating manuals and guides, plans, new product development,
\n technical and marketing surveys, material specifications, product
\n specifications, invention records, research records, labor routings,
\n inspection processes, equipment lists, engineering reports and
\n drawing; architectural or engineering plans, know-how agreements and
\n other know-how; marketing and licensing records, sales literature,
\n customer lists, trade lists, sales forces and distributor networks
\n lists, advertising and promotional materials, service and parts
\n records, warranty records, maintenance records and similar records;
\n and (vi) all rights and incidents of interest in and to all
\n noncompetition or confidentiality agreements; in each case including
\n any applications therefor or registrations, renewals, modifications
\n and extensions thereof.<\/p>\n
“IRS” shall mean the Internal Revenue Service.
\n — <\/p>\n
“knowledge” of the Company shall mean the actual knowledge, after
\n ———
\n reasonable inquiry, of the executive officers of the Company and the
\n Subsidiaries, including reasonable inquiry of the Company’s counsel.<\/p>\n
“Material Adverse Effect” shall have the meaning set forth in Section
\n ———————– ——-
\n 4.01.
\n —- <\/p>\n
“Material Contract” shall have the meaning set forth in Section 4.17.
\n —————– ———— <\/p>\n
“Merger” shall have the meaning set forth in the recitals of this
\n ——
\n Agreement.<\/p>\n
“Merger Consideration” shall have the meaning set forth in Section
\n ——————– ——-
\n 2.05(a).
\n ——- <\/p>\n
“Minimum Condition” shall have the meaning set forth in Annex I.
\n —————– ——- <\/p>\n
“Offer” shall have the meaning set forth in the recitals of this
\n —–
\n Agreement.<\/p>\n
“Offer Documents” shall have the meaning set forth in Section 1.01(c).
\n ————— ————— <\/p>\n
“Offer Price” shall have the meaning set forth in the recitals of this
\n ———–
\n Agreement.<\/p>\n
“Offer to Purchase” shall have the meaning set forth in Section
\n —————– ——-
\n 1.01(c).
\n ——- <\/p>\n
“Outside Date” shall have the meaning set forth in Section 7.01(c).
\n ———— ————— <\/p>\n
“Parent” shall have the meaning set forth in the preamble of this
\n ——
\n Agreement.<\/p>\n
“Parent Information” shall have the meaning set forth in Section 3.06.
\n —————— ———— <\/p>\n
“Paying Agent” shall have the meaning set forth in Section 2.07(a).
\n ———— ————— <\/p>\n
-39-<\/p>\n
“Person” shall mean an individual, corporation, partnership,
\n ——
\n association, trust, any unincorporated organization or group (within
\n the meaning of Section 13(d)(3) of the Exchange Act).<\/p>\n
“Proxy Statement” shall have the meaning set forth in Section 4.13.
\n ————— ———— <\/p>\n
“Purchaser” shall have the meaning set forth in the preamble of this
\n ———
\n Agreement.<\/p>\n
“Real Property Leases” shall have the meaning set forth in Section
\n ——————– ——-
\n 4.18(b).
\n ——- <\/p>\n
“Recent SEC Reports” shall have the meaning set forth in the
\n ——————
\n introductory paragraph of Article IV.
\n ———- <\/p>\n
“Release” shall mean any spill, discharge, leak, emission, disposal,
\n ——-
\n injection, escape, dumping, leaching, dispersal, emanation, migration
\n or release of any kind whatsoever of any Hazardous Substance, at, in,
\n on, into or onto the environment.<\/p>\n
“Schedule 14A” shall have the meaning set forth in Section 1.03.
\n ———— ———— <\/p>\n
“Schedule 14D-9” shall have the meaning set forth in Section 1.02(b).
\n ————– ————— <\/p>\n
“Schedule TO” shall have the meaning set forth in Section 1.01(c).
\n ———– ————— <\/p>\n
“SEC” shall mean the Securities and Exchange Commission.
\n — <\/p>\n
“SEC Reports” shall have the meaning set forth in Section 4.05(a).
\n ———– ————— <\/p>\n
“Securities Act” shall mean the Securities Act of 1933, as amended
\n ————–
\n (including the rules and regulations promulgated thereunder).<\/p>\n
“Shares” shall have the meaning set forth in the recitals of this
\n ——
\n Agreement.<\/p>\n
“Stockholder Agreement” shall have the meaning set forth in the
\n ———————
\n recitals of this Agreement.<\/p>\n
“Stock Option Plans” shall have the meaning set forth in Section
\n —————— ——-
\n 2.08(a).
\n ——- <\/p>\n
“Subsidiary” shall mean any corporation or other legal entity of which
\n ———-
\n the Company (either alone or through or together with any other
\n Subsidiary) (a) owns, directly or indirectly, more than 50% of the
\n stock or other equity interests the holders of which are generally
\n entitled to vote for the election of the board of directors or other
\n governing body of such corporation or other legal entity, or (b) in
\n the case of partnerships, serves as a general partner, or (c) in the
\n case of a limited liability company, serves as managing member or (d)
\n otherwise has the ability to elect a majority of the directors,
\n trustees or managing members thereof.<\/p>\n
“Superior Proposal” shall have the meaning set forth in Section
\n —————– ——-
\n 5.02(c).
\n ——- <\/p>\n
“Surviving Corporation” shall have the meaning set forth in Section
\n ——————— ——-
\n 2.01.
\n —- <\/p>\n
“Taxes” shall mean all taxes, charges, fees, levies or other
\n —–
\n assessments, including, without limitation, all net income, gross
\n income, gross receipts, corporation, advance corporation,<\/p>\n
-40-<\/p>\n
sales, use, ad valorem, registration, alternative or add on minimum, value
\nadded, premium, goods and services, capital, capital stock, transfer, franchise,
\nsingle business, profits, license, withholding, payroll, employment, employer
\nhealth, excise, severance, stamp, occupation, real and personal property,
\nworkers compensation, unemployment, disability, PBGC premiums, social security,
\nFICA, estimated, recording, gift, value assessed, windfall profits,
\nenvironmental, or other taxes, customs duties, fees, assessments or charges of
\nany kind whatsoever, whether computed on a separate, consolidated, unitary,
\ncombined or other basis, together with any interest, fines, penalties, additions
\nto tax or other additional amounts imposed by any taxing authority (domestic or
\nforeign), however denominated, whether disputed or not.<\/p>\n
“Tax Returns” shall mean any return, declaration, report, estimate,
\n ———–
\nclaim for refund, information or other document (including any documents, forms,
\nstatements or schedules attached thereto) required to be filed with or supplied
\nto any federal, state, local or foreign tax authority with respect to Taxes and
\nincluding any amendment thereof.<\/p>\n
-41-<\/p>\n
IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
\nAgreement to be executed as of the date first written above by their respective
\nofficers thereunto duly authorized.<\/p>\n
UNITED TECHNOLOGIES CORPORATION<\/p>\n
By: \/s\/ Ari Bousbib
\n —————
\n Name: Ari Bousbib
\n ———–
\n Title: Vice President
\n ————–<\/p>\n
SOLAR ACQUISITION CORP.<\/p>\n
By: \/s\/ Ari Bousbib
\n —————
\n Name: Ari Bousbib
\n ———–
\n Title: President
\n ———<\/p>\n
SPECIALTY EQUIPMENT COMPANIES, INC.<\/p>\n
By: \/s\/ Jeffrey P. Rhodenbaugh
\n ————————–
\n Name: Jeffrey P. Rhodenbaugh
\n ———————-
\n Title: President and Chief Executive Officer
\n ————————————-<\/p>\n
-42-<\/p>\n
ANNEX I
\n ——-
\n CONDITIONS TO THE OFFER<\/p>\n
Notwithstanding any other provision of the Offer or Agreement,
\nPurchaser shall not be required to accept for payment or, subject to any
\napplicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated
\nunder the Exchange Act (relating to Purchaser’s obligation to pay for or return
\ntendered Shares promptly after termination or withdrawal of the Offer), to pay
\nfor any tendered Shares if (i) there shall not have been validly tendered and
\nnot properly withdrawn prior to the expiration of the Offer such number of
\nshares of Common Stock which, when aggregated with shares of Common Stock
\nbeneficially owned by Parent (excluding shares of Common Stock held by an
\nemployee benefit plan), represents at least a majority of all of the issued and
\noutstanding shares of Common Stock on a fully diluted basis, assuming the
\nexercise of all Company Stock Options and the conversion or exchange of all
\nsecurities convertible or exchangeable into shares of Common Stock (the “Minimum
\n ——-
\nCondition”), (ii) any applicable waiting period under the HSR Act and any
\n———
\nForeign Antitrust Law shall not have expired or been terminated or any required
\napproval under any Foreign Antitrust Law shall not have been obtained or (iii)
\nat any time after the date of this Agreement and prior to the acceptance of such
\nShares for payment or payment for any such Shares, any of the following events
\nshall occur or conditions shall exist:<\/p>\n
(a) there shall have been any statute, rule, regulation, legislation,
\njudgment, order or injunction, promulgated, enacted, entered, enforced, issued,
\namended or deemed applicable by a Governmental Entity to Parent, Purchaser, the
\nCompany, any other affiliate of Parent or the Company, the Offer or the Merger,
\nthat would or is reasonably likely to (1) make the acceptance for payment of, or
\npayment for or purchase of all or a substantial number of the Shares pursuant to
\nthe Offer illegal, or otherwise materially restrict or prohibit the consummation
\nof the Offer or the Merger, (2) result in a material delay in the ability of
\nPurchaser to accept for payment, pay for or purchase all or a substantial number
\nof the Shares pursuant to the Offer or to effect the Merger, (3) render
\nPurchaser unable to accept for payment or pay for or purchase all or a
\nsubstantial number of the Shares pursuant to the Offer, (4) impose material
\nlimitations on the ability of Parent, Purchaser or any of their respective
\nSubsidiaries or affiliates to acquire or hold, transfer or dispose of, or
\neffectively to exercise all rights of ownership of, all or a substantial number
\nof the Shares including the right to vote the Shares purchased by it pursuant to
\nthe Offer on an equal basis with all other Shares on all matters properly
\npresented to the stockholders of the Company, (5) require the divestiture by
\nParent, Purchaser or any of their respective Subsidiaries or affiliates of any
\nShares, or require Purchaser, Parent, the Company, or any of their respective
\nSubsidiaries or affiliates to dispose of all or any material portion of their
\nrespective businesses, assets or properties or impose any material limitations
\non the ability of any of such entities to conduct their respective businesses or
\nown such assets, properties or Shares or on the ability of Parent or Purchaser
\nto conduct the business of the Company and its Subsidiaries and own the assets
\nand properties of the Company and its Subsidiaries, or (6) impose any material
\nlimitations on the ability of Parent, Purchaser or any of their respective
\nSubsidiaries or affiliates effectively to control the business or operations of
\nthe Company, Parent, Purchaser or any of their respective Subsidiaries or
\naffiliates;<\/p>\n
(b) this Agreement shall have been terminated in accordance with its
\nterms;<\/p>\n
(c) the representations and warranties of the Company set forth in the
\nAgreement shall not have been true and correct when made, or shall not continue
\nto be true and correct except (i) those representations and warranties that
\naddress matters only as of a particular date (which shall be <\/p>\n
true and correct as of such date), and (ii) where the failure of such
\nrepresentations and warranties has not had, and is not reasonably likely to
\nhave, a Material Adverse Effect;<\/p>\n
(d) the Company shall have failed to perform in any material respect,
\nor to comply in any material respect with, any obligation, agreement or covenant
\nof the Company to be performed or complied with by it under the Agreement;<\/p>\n
(e) there shall have been instituted or pending any action, proceeding
\nor counterclaim by any Governmental Entity challenging the making of the Offer,
\nthe acquisition by Purchaser of the Shares pursuant to the Offer or the
\nconsummation of the Merger, or seeking to, directly or indirectly, result in any
\nof the consequences referred to in clauses (1) through (6) of paragraph (a)
\n ———————– ————-
\nabove;<\/p>\n
(f) there shall have occurred (1) any general suspension of, or
\nlimitation on, trading in securities on the New York Stock Exchange (other than
\nany suspension or limitation on trading in any particular security as a result
\nof a computerized trading limit or any intraday suspension due to “circuit
\nbreakers”) or (2) the declaration of any banking moratorium or any suspension of
\npayments in respect of banks or any limitation (whether or not mandatory) on the
\nextension of credit by lending institutions in the United States; or<\/p>\n
(g) there shall have occurred any change, condition, event or
\ndevelopment that, individually or in the aggregate, has had or is reasonably
\nlikely to have a Material Adverse Effect.<\/p>\n
The foregoing conditions are for the sole benefit of Parent and
\nPurchaser and may be asserted regardless of the circumstances (including any
\naction or inaction by Parent or Purchaser or any of their affiliates giving rise
\nto any such condition) or waived by Parent or Purchaser in whole or in part at
\nany time or from time to time, in its discretion subject to the terms and
\nconditions of the Agreement. The failure of Parent or Purchaser at any time to
\nexercise any of the foregoing rights shall not be deemed a waiver of any such
\nright and each such right shall be deemed an ongoing right which may be asserted
\nat any time and from time to time.<\/p>\n
Capitalized terms used but not defined in this Annex I shall have the
\n ——-
\nmeanings assigned to such terms in the Agreement to which it is annexed, except
\nthat the term “Agreement” shall be deemed to refer to the Agreement to which
\n ———
\nthis Annex I is appended.
\n ——- <\/p>\n
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