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| EX-99.3 - EX-99.3 - TRC COMPANIES INC /DE/ | a2231634zex-99_3.htm |
| EX-99.2 - EX-99.2 - TRC COMPANIES INC /DE/ | a2231634zex-99_2.htm |
| EX-10.1 - EX-10.1 - TRC COMPANIES INC /DE/ | a2231634zex-10_1.htm |
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TABLE OF CONTENTS
AGREEMENT AND PLAN OF MERGER
AMONG
BOLT INFRASTRUCTURE PARENT, INC.,
BOLT INFRASTRUCTURE MERGER SUB, INC.
AND
TRC COMPANIES, INC.
DATED AS OF
MARCH 30, 2017
i
ii
iii
This AGREEMENT AND PLAN OF MERGER (hereinafter referred to as this "Agreement"), dated as of March 30, 2017, is by and among BOLT INFRASTRUCTURE PARENT, INC., a Delaware corporation ("Parent"), BOLT INFRASTRUCTURE MERGER SUB, INC., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and TRC COMPANIES, INC., a Delaware corporation (the "Company"). Unless the context clearly provides otherwise, all capitalized terms used in this Agreement shall have the meaning ascribed to such terms in Section 9.5 or as otherwise defined elsewhere in this Agreement.
WHEREAS, the board of directors of the Company (the "Company Board of Directors") has, on the terms and subject to the conditions set forth herein, determined that this Agreement and the transactions contemplated hereby (the "Transactions"), including the merger of Merger Sub with and into the Company (the "Merger"), are advisable and fair to, and in the best interests of, the Company and its stockholders;
WHEREAS, the Company Board of Directors has unanimously adopted resolutions approving the acquisition of the Company by Parent, the execution of this Agreement and the consummation of the Transactions and declaring advisable and recommending that the Company's stockholders adopt this Agreement (the "Company Board Recommendation") pursuant to Section 251 of the General Corporation Law of the State of Delaware (the "DGCL");
WHEREAS, the boards of directors of each of Parent and Merger Sub have approved, and the board of directors of Merger Sub has determined that this Agreement and the Transactions, including the Merger, are advisable and fair to, and in the best interests of, Merger Sub and its stockholder;
WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of the Company to enter into this Agreement, (i) New Mountain Partners IV, L.P., a Delaware limited partnership, and Parent have entered into an equity commitment letter, dated as of the date hereof (the "Equity Commitment Letter") and (ii) Parent has delivered to the Company the Guarantee referred to herein;
WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of Parent and Merger Sub to enter into this Agreement, certain of the Company's stockholders holding approximately 17.6% of the Shares (the "Company Major Stockholders") have delivered to Parent and Merger Sub voting and support agreements substantially in the form attached hereto as Exhibit A (each, a "Support Agreement") pursuant to which the Company Major Stockholders shall, among other things, subject to the terms and conditions of the applicable Support Agreement, agree to vote his, her or its Shares in favor of the approval of this Agreement, and to take certain other actions in furtherance of the transactions contemplated by this Agreement; and
WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also provide for various conditions governing the Merger and the Transactions.
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NOW, THEREFORE, in consideration of the mutual covenants and premises contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement agree as follows:
(a) Subject to the terms and conditions of this Agreement, and in accordance with the relevant provisions of the DGCL, at the Effective Time, the Company and Merger Sub shall consummate the Merger pursuant to which (i) Merger Sub shall be merged with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease, (ii) the Company shall be the surviving corporation in the Merger and shall continue to be governed by the DGCL, and (iii) the Merger shall have the effects set forth herein and in the applicable provisions of the DGCL. The corporation surviving the Merger is sometimes hereinafter referred to as the "Surviving Corporation."
(b) At the Effective Time, the Company Charter shall, by virtue of the Merger, be amended and restated in its entirety so as to read in the form attached hereto as Exhibit B, and as so amended shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law. At the Effective Time, the bylaws of the Surviving Corporation shall be amended so as to read in the form attached hereto as Exhibit C.
Section 1.2 Closing. The closing of the Merger (the "Closing") will take place at 10:00 a.m., New York time, at the offices of
Covington & Burling LLP, The New York Times Building, 620 Eighth Avenue, New York, New York, 10018, no later than the third (3rd) business day after the satisfaction or
waiver of the last of the conditions set forth in Article VII to be satisfied or waived (other than any such conditions that by their nature are
to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), unless another time, date or place is agreed by the Company and Parent. The date on which
the Closing actually takes place is referred to as the "Closing Date." Notwithstanding the foregoing, if the Marketing Period has not ended at the time
of the satisfaction or waiver of conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the
Closing, but subject to the satisfaction or waiver of such conditions at the Closing), then the Closing shall occur instead on the date following the satisfaction or waiver of such conditions (subject
to the satisfaction or waiver of such conditions at the Closing) that is the earlier to occur of (a) any business day during the Marketing Period as may be specified by Parent on no less than
two (2) business days' prior notice to the Company and (b) the second (2nd) business day following the final day of the Marketing Period.
Section 1.3 Effective Time. Subject to the terms and conditions of this Agreement, Parent,
Merger Sub and the Company shall cause an appropriate certificate of merger or other appropriate
documents (in any such case, the "Certificate of Merger") to be executed and filed on the Closing Date (or on such other date as Parent and the Company
may agree) with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL, and shall make all other filings or recordings required under the DGCL. The
Merger shall become effective at the time such Certificate of Merger shall have been duly filed with, and accepted by, the Secretary of State of the State of Delaware or such other date and time as is
agreed upon by the parties and specified in the Certificate of Merger, such date and time hereinafter referred to as the "Effective Time." From and
after the Effective Time, the Surviving Corporation shall possess all rights, privileges, powers and
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property of the Company and Merger Sub, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities, and duties of the Surviving Corporation.
Section 1.4 Directors and Officers of the Surviving Corporation. The directors of Merger Sub
immediately prior to the Effective Time shall, from and after the Effective Time, be appointed as the directors of the Surviving
Corporation, and the officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, in each case until
their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the Surviving Corporation's certificate of
incorporation and bylaws.
Section 1.5 Subsequent Actions. If at any time after the Effective Time, the Surviving
Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale,
instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right,
title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf
of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or
otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the
Surviving Corporation or otherwise to carry out this Agreement.
Section 2.1 Conversion of Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holders of any securities of the Company, Parent, Merger Sub or the Company:
(a) Conversion of Common Stock. Each share of common stock, par value $0.10 per share, of the Company (the "Common Stock" or "Capital Stock" and each such share, a "Share") issued and outstanding immediately prior to the Effective Time (other than Shares to be canceled in accordance with Section 2.1(b) and other than Dissenting Shares) shall be automatically converted into the right to receive in cash an amount per Share (subject to any applicable withholding Tax) equal to $17.55, without interest (the "Merger Consideration"). From and after the Effective Time, all such Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of any such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefor upon the surrender of such Shares in accordance with Section 2.2, without interest thereon.
(b) Cancelation of Treasury Stock and Parent-Owned Common Stock. All Shares owned by the Company, Parent or Merger Sub shall be automatically canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(c) Merger Sub Common Stock. Each issued and outstanding share of common stock, par value $0.01 per share, of Merger Sub prior to the Effective Time (the "Merger Sub Common Stock") shall be converted into and become one fully paid and nonassessable share of common stock of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing Merger Sub Common Stock shall be deemed for all purposes to represent the number of shares of
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common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.
(d) Adjustment to Merger Consideration. The applicable Merger Consideration shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Capital Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Capital Stock occurring on or after the date hereof and prior to the Effective Time; provided, however, that nothing in this Section 2.1(d) shall be construed to permit the Company, any Company Subsidiary or any other Person to take any action that is otherwise prohibited by the terms of this Agreement.
Section 2.2 Payment for Securities; Surrender of Certificates.
(a) Paying Agent. Prior to the Effective Time, Parent or Merger Sub shall designate a reputable bank or trust company, which shall be reasonably acceptable to the Company, to act as the payment agent in connection with the Merger (the "Paying Agent"). Prior to or at the Effective Time, Parent or Merger Sub shall deposit, or cause to be deposited, with the Paying Agent the aggregate Merger Consideration with respect to Shares converted into the applicable Merger Consideration pursuant to Section 2.1(a) (the "Exchange Fund"). In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 2.1(a), Parent shall, or shall cause Merger Sub to, promptly deposit additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payment. The Exchange Fund shall not be used for any purpose that is not expressly provided for in this Agreement. The Exchange Fund shall be invested by the Paying Agent as reasonably directed by Parent; provided, however, that any investment of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated A-1 or P-1 or better by Moody's Investors Service, Inc. or Standard & Poor's Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker's acceptances of commercial banks with capital exceeding $10 billion (based on the most recent financial statements of such bank that are then publicly available), and that no such investment or loss thereon shall affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article II. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation on the earlier of one year after the Effective Time or full payment of the Exchange Fund.
(b) Procedures for Surrender. As promptly as practicable after the Effective Time (but in no event later than two (2) business days after the Effective Time), Parent shall, and shall cause the Surviving Corporation to, cause the Paying Agent to mail (and make available for collection by hand) to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding Shares (the "Certificates") or non-certificated Shares represented by book-entry ("Book-Entry Shares") and, in each case, whose Shares were converted pursuant to Section 2.1 into the right to receive the Merger Consideration (i) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu thereof) to the Paying Agent, and shall be in such form and have such other provisions as Parent may reasonably specify (each, a "Letter of Transmittal") and (ii) instructions for effecting the surrender of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for payment of the Merger Consideration. Upon surrender of a Certificate (or an affidavit of loss in lieu thereof) or Book-Entry Share for cancelation to the Paying Agent or to such other agent or agents reasonably acceptable to the Company as may be appointed by Parent or the Surviving Corporation, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant
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to such instructions, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate or Book-Entry Share, to be mailed (or made available for collection by hand if so elected by the surrendering holder) within five (5) business days following the later to occur of (A) the Effective Time or (B) the Paying Agent's receipt of such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, and the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share so surrendered shall be forthwith canceled. The Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition precedent of payment that (1) the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and (2) the Person requesting such payment shall have paid any transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered or shall have established to the satisfaction of the Surviving Corporation that such Tax either has been paid or is not required to be paid. Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 2.2, each Certificate and Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration in cash as contemplated by this Article II, without interest thereon.
(c) Transfer Books; No Further Ownership Rights in Shares. At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of Certificates outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided for herein or by applicable Law. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Agreement.
(d) Termination of Exchange Fund; No Liability. At any time beginning on the date that is twelve (12) months after the Effective Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) remaining in the Exchange Fund that have not been disbursed, or for which disbursement is pending subject only to the Paying Agent's routine administrative procedures, to holders of Certificates or Book-Entry Shares (other than Shares to be canceled in accordance with Section 2.1(b) and other than Dissenting Shares), and thereafter such holders shall be entitled to look only to the Surviving Corporation and Parent (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificates or Book-Entry Shares and compliance with the procedures in Section 2.2(b), without any interest thereon. Notwithstanding the foregoing, none of the Surviving Corporation, Parent or the Paying Agent shall be liable to any holder of a Certificate or Book-Entry Share for any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(e) Lost, Stolen or Destroyed Certificates. In the event that any Certificates shall have been lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, the Merger Consideration payable in respect thereof pursuant to Section 2.1; provided that Parent may, in its discretion and as a condition precedent to the payment of such Merger Consideration, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in such sum as it may
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reasonably direct as indemnity against any claim that may be made against Parent, the Surviving Corporation or the Paying Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.
Section 2.3 Dissenting Shares.
(a) Notwithstanding anything in this Agreement to the contrary, Shares outstanding immediately prior to the Effective Time and held by a holder who is entitled to, but did not vote in favor of the Merger (or consent thereto in writing) and is entitled to demand and properly demands appraisal of such Shares ("Dissenting Shares") pursuant to, and who complies in all respects with, Section 262 of the DGCL (the "Appraisal Rights") shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the Appraisal Rights (it being understood that at the Effective Time, such Dissenting Shares shall no longer be outstanding, shall automatically be canceled and shall cease to exist, and such holder shall cease to have any rights with respect thereto other than the right to receive the appraised value of such Dissenting Shares to the extent afforded by the Appraisal Rights); provided, however, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to payment of the fair value of such Dissenting Shares under the Appraisal Rights, then the right of such holder to be paid the fair value of such holder's Dissenting Shares shall cease and such Dissenting Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for the right to receive the Merger Consideration, upon surrender of the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, and a Letter of Transmittal, in each case in accordance with Section 2.2.
(b) The Company shall give prompt written notice (with email from counsel being sufficient) to Parent and Merger Sub of any demands received by the Company for appraisal of any Shares, of any withdrawals of such demands and of any other instruments served pursuant to the DGCL and received by the Company relating to Appraisal Rights, and Parent and Merger Sub shall have the right to participate in and control all negotiations and proceedings with respect to such demands, withdrawals or attempted withdrawals of such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent and Merger Sub, make any payment with respect to, or settle or compromise or offer to settle or compromise, any such demand, or agree to do any of the foregoing.
Section 2.4 Treatment of Company Equity Awards.
(a) Immediately prior to the Effective Time, except as otherwise agreed to in writing between a holder of Company Options and Parent, (i) each outstanding, unvested and unexercised option to purchase Shares (the "Company Options") under any Company Equity Plan shall become immediately vested and exercisable in full, and (ii) each Company Option that remains outstanding and unexercised as of immediately prior to the Effective Time (including each Company Option that becomes vested and exercisable pursuant to clause (i)) shall be canceled and, in exchange therefor, each holder of any such canceled Company Option shall be entitled to receive, in consideration of the cancelation of such Company Option and in settlement thereof, a payment in cash of an amount equal to the product of (A) the total number of Shares for which such Company Option remains outstanding and unexercised immediately prior to the Effective Time and (B) the excess, if any, of the Merger Consideration over the exercise price per Share previously subject to such Company Option (such amount being hereinafter referred to as the "Option Consideration"). For the avoidance of doubt, in the event that the exercise price per share under any Company Option is equal to or greater than the Merger Consideration, such Company Option shall be canceled as of the Effective Time without payment therefor and shall have no further force or effect. The Option Consideration shall be paid by the Surviving Corporation as soon as practicable following the Effective Time, but in no event later than its first payroll date
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that is at least five (5) business days after the Closing. From and after the Effective Time, any such canceled Company Option shall no longer be exercisable by the former holder thereof, but shall only entitle such holder to the payment of the Option Consideration.
(b) Immediately prior to the Effective Time, except as otherwise agreed to in writing between a holder of any Restricted Awards and Parent, all outstanding restricted stock awards, restricted stock units and performance stock units (the "Restricted Awards") under any Company Equity Plan shall become immediately vested (and, in the case of performance stock units, such vesting will be in the amounts corresponding to actual achievement of applicable performance goals applicable thereto, which, in the event that the Closing shall occur prior to June 30, 2017, will be determined in good faith by the Compensation Committee of the Company Board of Directors by assuming achievement of performance goals for any period of the applicable performance period that has not been completed as of the Closing (the "Open Performance Period") taking into consideration historical levels of the Company's performance with respect to the applicable performance goals during the period of time corresponding to the Open Performance Period) and all restrictions thereupon shall lapse, and such Restricted Awards shall be canceled in exchange for the right to receive, with respect to each Share for which such Restricted Award remains outstanding immediately prior to the Effective Time, the Merger Consideration, which shall be paid by the Surviving Corporation as soon as practicable following the Effective Time, but in no event later than its first payroll date that is at least five (5) business days after the Closing. From and after the Effective Time, any such canceled Restricted Award shall only entitle the former holder thereof to the payment of the Merger Consideration.
(c) The Company shall take all necessary corporate actions (including the passing of appropriate resolutions of the Company Board of Directors or any committee thereof) to effectuate the treatment of the Company Options and Restricted Awards (collectively, the "Company Equity Awards") as contemplated by this Section 2.4.
Section 2.5 Additional Payment Matters; Withholding. All amounts payable pursuant to Section 2.4 shall be paid without interest (unless otherwise noted). Any
payments made pursuant to Section 2.4 shall be net of all applicable withholding Taxes that Parent, Merger Sub, the Surviving Corporation and the
Paying Agent, as the case may be, shall be required to deduct and withhold under applicable Law. To the extent that amounts are so deducted and withheld by the Surviving Corporation and remitted to
the appropriate taxing authority, such amounts shall be treated for all purposes of this Agreement as having been paid in respect of which such deduction and withholding was made.
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub as set forth in this Article III, and such representations and warranties are qualified in their entirety by reference to the disclosure (a) in the Company SEC Documents filed or furnished prior to the date hereof (other than (i) disclosures under the heading "Risk Factors" or any disclosure included in any "forward-looking statements" or any other general statements regarding risks or uncertainties that are similarly predictive or forward-looking in nature or (ii) any matter required to be disclosed for purposes of Section 3.1(a) (Organization and Qualification), Section 3.2 (Capitalization), Section 3.3 (Authorization; Validity of Agreement; Company Action), Section 3.23 (Brokers; Expenses) or Section 3.24 (Takeover Statutes), which shall only be qualified by reference to the corresponding disclosures set forth in the Company Disclosure Letter) and (b) set forth in the disclosure schedule delivered by the Company to Parent immediately prior to the execution of this Agreement (the "Company Disclosure Letter"). Each disclosure set forth in the Company Disclosure Letter shall qualify or modify each of the representations and warranties set forth in this Article III to the extent the applicability of the disclosure to each other Section is reasonably apparent from the text of the disclosure made.
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Section 3.1 Organization and Qualification; Subsidiaries.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of Delaware and has the requisite corporate power and authority to conduct its business as now being conducted. The Company is duly qualified or licensed to do business and is in good standing (with respect to jurisdictions which recognize such concept) in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, except for those jurisdictions where the failure to be so qualified or licensed or to be in good standing has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has delivered to or made available to Parent and Merger Sub, prior to the execution of this Agreement, true and complete copies of the Company Governing Documents and any amendments thereto, as in full force and effect as of the date hereof. The Company is in compliance with the terms of the Company Governing Documents, except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Schedule 3.1(b) sets forth a true and complete list of the Subsidiaries of the Company (each, a "Company Subsidiary"), together with the jurisdiction of organization or incorporation, as the case may be, of each Company Subsidiary. Each Company Subsidiary is a corporation or other entity duly organized or formed and validly existing under the laws of its jurisdiction of organization or formation and has all requisite corporate (or similar) power and authority to conduct its business as now being conducted. Each Company Subsidiary is duly qualified or licensed to do business and is in good standing (with respect to jurisdictions which recognize such concept) in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, except for those jurisdictions where the failure to be so qualified or licensed or to be in good standing has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and each Significant Subsidiary is in compliance in all material respects with the terms of its constituent organizational or governing documents.
(a) The authorized capital stock of the Company consists of (i) 40,000,000 shares of Common Stock and (ii) 500,000 shares of preferred stock. As of March 28, 2017 (the "Capitalization Date"), (A) 31,620,014 shares of Common Stock were issued and outstanding, (B) no shares of preferred stock were issued and outstanding, (C) 3,482 shares of Common Stock and no shares preferred stock were held in the treasury of the Company or otherwise owned by the Company, (D) 2,024,796 shares of Common Stock were reserved for issuance in connection with future grants of awards under any Company Equity Plan, (E) 12,250 shares of Common Stock were reserved for issuance with respect to outstanding Company Options (with a weighted average exercise price of $4.20), and (F) 2,339,143 shares of Common Stock were reserved for issuance with respect to outstanding Restricted Awards (comprised of zero restricted stock awards, 1,096,314 restricted stock units and 1,242,829 performance stock units (assuming achievement of all applicable performance goals at maximum levels)). No Company Subsidiary owns shares of Common Stock. All of the outstanding Shares are, and all Shares which may be issued pursuant to the exercise of outstanding Company Options will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and non-assessable. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) ("Voting Debt") of the Company or any Company Subsidiary issued and outstanding. Except as set forth in this Section 3.2(a) or as set forth in Schedule 3.2(a), there are no (1) options, warrants, calls, pre-emptive rights, subscriptions or other rights, agreements, arrangements or commitments of any kind, including any stockholder rights plan, relating to the issued or unissued capital stock of the Company, obligating the Company or any Company Subsidiary to issue, transfer or sell or cause to
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be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares, Voting Debt or equity interests, or obligating the Company or any Company Subsidiary to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment or (2) contingent value rights, "phantom" stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock of, or other equity interests in, the Company or any Company Subsidiary (the foregoing clauses (1) and (2), collectively, "Equity Interests") or (3) outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any Shares or any other capital stock of, or other Equity Interests in, the Company or any Company Subsidiary, or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any Company Subsidiary. From the close of business on the Capitalization Date to the date of this Agreement, the Company has not issued any Shares, or any other capital stock of, or other Equity Interests in, the Company or any Company Subsidiary except upon the exercise of the Company Options or the settlement of Restricted Awards, in each case, outstanding as of the close of business on the Capitalization Date and as disclosed in this Section 3.2(a).
(b) Schedule 3.2(b) sets forth a listing of all outstanding Company Equity Awards as of March 28, 2017 and includes, on a grant by grant basis, the holder thereof, the grant date, type of Company Equity Award, number of Company Equity Awards granted, vesting schedule and current vesting status (prior to giving effect to the Transactions).
(c) There are no voting trusts or other agreements (or understandings) to which the Company or any Company Subsidiary is a party with respect to the voting of the Company's Common Stock or any other capital stock of, or other Equity Interest, of the Company or Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any Shares, or any other capital stock of, or other Equity Interests in, the Company or any Company Subsidiary.
(d) The Company or another Company Subsidiary owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other Equity Interests of each of the Company Subsidiaries, free and clear of any Liens (other than transfer and other restrictions under applicable federal and state securities Laws), and all of such shares of capital stock or other Equity Interests have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. Except for capital stock or other Equity Interests in the Company Subsidiaries, neither the Company nor any Company Subsidiary owns directly or indirectly any capital stock or other Equity Interest in any Person, or has any obligation to acquire any such capital stock or other Equity Interest, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in, any Company Subsidiary or any other Person. There are no outstanding obligations to which the Company or any Company Subsidiary is a party (i) restricting the transfer of any capital stock or other Equity Interests in any Company Subsidiary or (ii) limiting the exercise of voting rights with respect to any capital stock or other Equity Interests in any Company Subsidiary.
Section 3.3 Authorization; Validity of Agreement; Company Action. The Company has all necessary
corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the
Transactions. The execution, delivery and performance by the Company of this Agreement and the consummation by it of the Transactions, have been duly and validly authorized by the Company Board of
Directors and no other corporate action on the part of the Company, pursuant to the DGCL or otherwise, is necessary to authorize the execution and delivery by the Company of this Agreement, and the
consummation by it of the Transactions, subject,
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in the case of the Merger, to the adoption of this Agreement by the Requisite Stockholder Approval and the filing of the Certificate of Merger. The Requisite Stockholder Approval is the only vote or consent of the holders of any class or series of the Company's Equity Interests necessary to approve and adopt this Agreement, approve the Merger and consummate the Transactions, including the Merger. This Agreement has been duly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery hereof by Parent and Merger Sub, is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except that the enforcement hereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors' rights generally and (b) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) (the exceptions described in clauses (a) and (b), collectively, the "Enforceability Exceptions").
Section 3.4 Board Approvals. The Company Board of Directors has (a) determined that this
Agreement and the Transactions, including the Merger, are advisable and fair to and in the best
interests of, the stockholders of the Company, (b) approved and declared advisable this Agreement and the Transactions, which approval, to the extent applicable and subject to the accuracy of
the representations and warranties in Section 4.6, constituted approval under the provisions of Section 203 of the DGCL as a result of
which the Transactions, including the Merger, are not and will not be subject to the restrictions on "business combinations" under the provision of Section 203 of the DGCL and
(c) subject to Section 5.2, determined to recommend that the stockholders of the Company adopt this Agreement and the Transactions.
Section 3.5 Consents and Approvals; No Violations. None of the execution, delivery or
performance of this Agreement by the Company, the consummation by the Company of the Merger or any other Transaction or
compliance by the Company with any of the provisions of this Agreement will (a) conflict with or result in any breach of any provision of the Company Governing Documents or the comparable
organizational or governing documents of any Company Subsidiary, (b) require any filing by the Company or any Company Subsidiary with, or the obtaining of any permit, authorization, consent or
approval of, any court, arbitral tribunal, administrative agency or commission or other governmental or other regulatory authority or agency, whether foreign, federal, state, local or supernational (a
"Governmental Entity") (except for (i) compliance with any applicable requirements of the Exchange Act, (ii) any filings as may be
required under the DGCL in connection with the Merger, (iii) filings, permits, authorizations, consents and approvals as may be required under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 (the "HSR Act"), and any other Required Governmental Approvals or (iv) such filings with the Securities and Exchange Commission (the
"SEC") as may be required to be made by the Company in connection with this Agreement and the Merger), (c) result in a modification, violation or
breach of, or constitute (with or without notice or lapse of time or both) a default or result in the creation of any Lien, or give rise to any right, including any right of termination, amendment,
cancelation or acceleration, under, any of the terms, conditions or provisions of any Company Material Contract, or (d) violate any order, writ, injunction, decree or Law applicable to the
Company or any of its properties or assets; except in each of clauses (b), (c) or (d) where (A) any failure to obtain such permits, authorizations, consents or approvals,
(B) any failure to make such filings or (C) any such modifications, violations, rights, Liens, breaches or defaults have not had or would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect.
Section 3.6 Company SEC Documents; Financial Statements; Indebtedness.
(a) The Company has timely filed or furnished (as applicable) with the SEC, together with all applicable certifications required pursuant to the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act"), all registration statements, prospectuses, forms, reports, schedules, statements and other documents (including exhibits and all other information incorporated by reference) required by it to be filed or furnished (as applicable) since and including January 1, 2014 under the Securities
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Exchange Act of 1934 and the rules and regulations promulgated thereunder (the "Exchange Act") or the Securities Act of 1933 and the rules and regulations promulgated thereunder (the "Securities Act") (such documents and any other documents filed or otherwise furnished by the Company with the SEC, as amended since the time of their filing, collectively, the "Company SEC Documents"). As of their respective filing dates, the Company SEC Documents (a) did not (or with respect to Company SEC Documents filed after the date hereof, will not) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading and (b) complied in all material respects with the applicable requirements of the Exchange Act or the Securities Act, as the case may be, the Sarbanes-Oxley Act and the applicable rules and regulations of the SEC thereunder. As of the date hereof, none of the Company SEC Documents is the subject of any ongoing SEC review or outstanding SEC comment or other governmental inquiries or investigations regarding the accounting practices of the Company. All of the audited financial statements and unaudited interim financial statements of the Company included in the Company SEC Documents (collectively, the "Financial Statements") (i) complied as to form and content in all material respects with the published rules and regulations of the SEC with respect thereto as of their respective dates, (ii) have been or will be, as the case may be, prepared from, are in accordance with, and accurately reflect the books and records of the Company and the Company Subsidiaries, in each case in all material respects, (iii) have been or will be, as the case may be, prepared in accordance with United States generally accepted accounting principles ("GAAP") applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of interim financial statements, for normal and recurring year-end adjustments and as may be permitted by the SEC on Form 10-Q, Form 8-K or any successor or like form under the Exchange Act), and (iv) fairly present in all material respects the financial position and the results of operations, income, changes in equity and cash flows of the Company and the consolidated Company Subsidiaries as of the times and for the periods referred to therein.
(b) Except as set forth on Schedule 3.6(b), as of the date hereof, neither the Company nor any Company Subsidiary has any Indebtedness.
Section 3.7 Internal Controls; Sarbanes-Oxley Act. The Company has designed and maintains a
system of internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange
Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting. The Company (a) has designed and maintains disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms and is accumulated and communicated to the Company's management as appropriate to allow
timely decisions regarding required disclosure and (b) has disclosed, based on its most recent evaluation of its disclosure controls and procedures and internal control over financial reporting
prior to the date hereof, to the Company's auditors and the audit committee of the Company Board of Directors (i) any significant deficiencies and material weaknesses in the design or operation
of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company's ability to record, process, summarize and report financial
information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal controls over financial reporting.
Since July 1, 2014, none of the Company, the Company's auditors, the Company Board of Directors or the audit committee of the Company Board of Directors has received any written, or to the
Company's knowledge, oral notification of any matter set forth in the preceding clause (b)(i) or (b)(ii). The Company's management has completed an
assessment of the effectiveness of the Company's internal control over financial reporting in
compliance
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with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended June 30, 2016, and such assessment concluded that such system was effective.
Section 3.8 Absence of Certain Changes.
(a) Except as contemplated by this Agreement, since July 1, 2016, the Company and the Company Subsidiaries have conducted, in all material respects, their respective businesses in the ordinary course of business.
(b) From July 1, 2016 through the date of this Agreement, no Effects have occurred, which have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Since July 1, 2016 through the date of this Agreement, the Company has not taken or agreed to take any action that, if taken or proposed to be taken after the date of this Agreement, would be prohibited under clauses (a), (c), (f), (h) , (l), (m), (p), or (r) of Section 5.1.
Section 3.9 No Undisclosed Liabilities.
Other than those as have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Company
Subsidiary has incurred any liabilities or obligations that would be required by GAAP to be reflected or reserved against on a consolidated balance sheet of the Company (or the notes thereto), except
(a) as disclosed, reflected or otherwise reserved against on the Financial Statements, (b) for liabilities and obligations incurred since July 1, 2016 in the ordinary course of
business (none of which is a liability resulting from breach of contract), (c) for liabilities and obligations incurred under this Agreement or in connection with the Transactions and
(d) for liabilities and obligations incurred under the executory portion of any contract (other than (i) liabilities or obligations due to breaches thereunder and (ii) any
liabilities or obligations pursuant to any contract in effect as of the date hereof and required to be disclosed pursuant to Section 3.14(a) and
not listed on Schedule 3.14(a) or any contracts entered into after the date hereof in contravention of Section 5.1). Except as disclosed in the
balance sheet of the Company dated as of December 30, 2016, none of the Company or any of Company Subsidiaries maintains
any "off-balance-sheet arrangement" within the meaning of Item 303 of Regulation S-K of the Securities Act. This Section 3.9 does
not relate to any Intellectual Property Rights, which are the subject of Section 3.17.
Section 3.10 Litigation. There is no claim, complaint, action, suit, hearing, arbitration, charge,
alternative dispute resolution action or any other judicial or administrative
proceeding, in Law or equity (collectively, a "Legal Proceeding"), pending against (or to the Company's knowledge, threatened against or naming as a
party thereto), the Company, a Company Subsidiary or any executive officer or director of the Company (in their capacity as such) nor, to the knowledge of the Company, is there any audit, inquiry or
investigation of a Governmental Entity pending or threatened against the Company or any Company Subsidiary, in each case other than as have not had or would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary is subject to any outstanding order, writ, injunction, award decree or arbitration
ruling or judgment of a Governmental Entity which has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 3.11 Employee Benefit Plans; ERISA.
(a) Schedule 3.11(a) sets forth a correct and complete list of all "employee benefit plans" (as that term is defined in Section 3(3) of ERISA), and all material retirement, welfare, severance, termination, paid time off, employment, change-in-control, retention, equity or other incentive plans, and any other material benefit or compensation plan, policy, program, agreement or arrangement in each case, maintained by the Company or any Company Subsidiary, or with respect to which the Company or any Company Subsidiary has any liability or obligation (the "Benefit Plans").
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(b) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a determination, opinion or advisory letter from the Internal Revenue Service and, to the knowledge of the Company, nothing has occurred that would reasonably be expected to adversely affect the qualification or tax exemption of any such Benefit Plan. Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Benefit Plan and any related trust complies in all respects, and has been maintained, funded and administered in compliance in all respects, with ERISA, the Code, and other applicable Laws and with any applicable collective bargaining agreements. There are no Legal Proceedings or audits (other than routine claims for benefits) pending or, to the knowledge of the Company, threatened with respect to any Benefit Plan, other than as have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) No Benefit Plan is, and neither the Company nor any Company Subsidiary has any current or contingent liability or obligation under or with respect to, (i) a "multiemployer plan" (as defined in Section 3(37) of ERISA), (ii) a plan that is or was subject to Title IV of ERISA or Section 412 of the Code, or (iii) a plan or arrangement providing post-retirement or post-termination health or life insurance benefits to any Person. With respect to each multiemployer plan to which the Company or any of the Company Subsidiaries has any current or contingent liability or obligation, neither the Company nor any Company Subsidiary has made or incurred a "complete withdrawal" or a "partial withdrawal" (as such terms are respectively defined in Sections 4203 and 4205 of ERISA) for which liability is or could be outstanding (whether or not assessed). Neither the Company nor any Company Subsidiary is party to any agreement intended to comply with Section 4204 of ERISA. Neither the Company nor any Company Subsidiary has any current or contingent liability or obligation as a result of at any time being treated as a single employer under Section 414 of the Code with any Person other than the Company or any Company Subsidiary.
(d) With respect to the Benefit Plans, each to the extent applicable, correct and complete copies of the following have been delivered or made available to Parent by the Company: (i) all Benefit Plans (including all amendments thereto); (ii) written summaries of any Benefit Plan not in writing; (iii) all related trust documents; (iv) all insurance contracts or other funding arrangements; (v) the most recently filed annual report (Form 5500); (vi) the most recent determination, opinion or advisory letter from the Internal Revenue Service; and (vii) the most recent summary plan description.
(e) Neither the execution or delivery of this Agreement nor the consummation of the Transactions, either alone or in conjunction with any other event, will (i) result in any payment becoming due to any current or former employee, director, or individual consultant of the Company or any Company Subsidiary (each, a "Participant"), (ii) increase any compensation or benefits otherwise payable under any Benefit Plan, (iii) accelerate the time of payment, funding, or vesting of any compensation or benefits due to any Participant under any Benefit Plan or (iv) give rise to the payment of any amount that would not be deductible by the Company, Parent, or any of their respective affiliates by reason of Section 280G of the Code or any amount that could, individually or in combination with any other such payment, constitute an "excess parachute payment", as defined in Section 280G(b)(1) of the Code.
(f) None of the Company, the Company Subsidiaries and any of their respective affiliates has any obligation to "gross-up" or otherwise indemnify any individual for the imposition of the excise tax under Section 4999 of the Code or under Section 409A of the Code.
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(a) Since July 1, 2014, there has been no pending or, to the knowledge of the Company, threatened labor dispute, strike or lockout, walkout or work stoppage against, or employee organizing activity with respect to the Company or any Company Subsidiary, except where such dispute, strike or lockout, walkout or work stoppage has not had or would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Schedule 3.12(a), neither the Company nor any Company Subsidiary is party to or bound by any collective bargaining agreement, works council or similar agreement.
(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company and the Company Subsidiaries have paid all wages, salaries, wage premiums, commissions, bonuses, fees, and other compensation which have come due and payable to their current and former employees and independent contractors under applicable Law, contract or Company policy, and (ii) neither the Company nor any Company Subsidiary is liable for any fines, Taxes, interest, or other penalties for any failure to pay or delinquency in paying such compensation.
(a) The Company and the Company Subsidiaries have timely filed all Tax Returns required to be filed (taking into account any extensions of time within which to file such Tax Returns), and all Tax Returns of the Company and the Company Subsidiaries are true, complete and correct subject in each case to such exceptions as have not had or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company and the Company Subsidiaries have paid all Taxes due and payable by them and have withheld all Taxes required to have been withheld in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, in each case, subject to such exceptions as have not had or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) (i) There currently are no pending audits, claims, actions, suits, investigations, examinations or other proceedings with regard to any Taxes of the Company or the Company Subsidiaries; and (ii) the Company and the Company Subsidiaries have not received a written notice or announcement of any audits or proceedings, subject in each case to such exceptions as have not had or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) There are no material Liens for Taxes upon any property or assets of the Company and the Company Subsidiaries, except for Permitted Liens.
(d) None of the Company or any Company Subsidiary (i) is a party to, is bound by or has any obligation under any Tax sharing, Tax allocation or Tax indemnity agreement or similar contract or arrangement (other than customary gross-up or indemnification provisions in credit agreements, derivatives, leases and similar agreements entered into in the ordinary course of business or (ii) has any liability for any Tax of any Person (other than the Company or any Company Subsidiary) under Treasury Regulations Section 1.1502-6 (or similar provision of state, local or foreign Law), as a transferee or successor, by contract, or otherwise.
(e) Neither the Company nor any Company Subsidiary has been a party to a "listed transaction" within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(f) Neither the Company nor any Company Subsidiary has been a "controlled corporation" or a "distributing" corporation in any transaction occurring in the two-year period ending on the
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date hereof that was purported or intended to be governed in whole or in part by Section 355 of the Code
(g) The Company is not, and has not been in the period specified in Section 897(c)(1)(A)(ii) of the Code, a "United States real property holding corporation" as defined in Section 897(c)(2) of the Code.
(h) Other than this Section 3.13, Section 3.1, Section 3.5, the last sentence of Section 3.6(a), Section 3.11, and Section 3.12(b) contain the sole representations and warranties of the Company and the Company Subsidiaries with respect to Tax matters.
(a) Except as filed as exhibits to the Company SEC Documents filed prior to the date hereof, Schedule 3.14(a) sets forth a list, as of the date hereof, of each note, bond, mortgage, Lien, indenture, lease, license, contract or agreement, or other instrument or obligation (including any amendments or modifications thereto), in each case whether written or oral, to which the Company or any Company Subsidiary is a party or by which any of its properties or assets are bound which:
(i) is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than a Benefit Plan listed on Schedule 3.11(a));
(ii) involves expenditures or purchases by the Company or any Company Subsidiary in excess of $5,000,000 for (x) the twelve-month period ended June 30, 2016 or (y) the eight-month period ended February 28, 2017;
(iii) involves payments to the Company or any Company Subsidiary in excess of $5,000,000 for (x) the twelve-month period ended June 30, 2016 or (y) the eight-month period ended February 28, 2017;
(iv) contains any (A) non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company or, upon consummation of the Transactions, Parent or its Subsidiaries or affiliates, (B) other exclusivity rights, rights of refusal, rights of first negotiation or similar rights or terms provided to any Person, in each case, that are material to the Company, (C) restriction to the conduct of any line of business that is material to the Company or (D) grant to any Person of "most favored nation" pricing terms;
(v) relates to a partnership, joint venture or similar arrangement;
(vi) is an employment or services contract with any current executive officer, employee, or individual consultant of the Company or any member of the Company Board of Directors, in each case that provides for annual compensation in excess of $200,000;
(vii) is a license agreement or other agreement with respect to any Company Intellectual Property (other than shrink-wrap, click-wrap, and off-the-shelf licenses for software that are generally commercially available, in each case for which the license, maintenance, support and other fees are less than $100,000 in any 12-month period);
(viii) relates to the creation, incurrence, assumption or guarantee of borrowed money or extension of credit, in each case having a principal amount of indebtedness in excess of $2,500,000;
(ix) is a collective bargaining agreement or other agreement with any trade union, works council, or other labor organization;
(x) is a settlement, conciliation, or similar agreement with a Governmental Entity pursuant to which the Company or any Company Subsidiary has continuing obligations or involving the payment of more than $250,000;
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(xi) is a contract pursuant to which the Company or a Company Subsidiary is a lessor or lessee of any real or personal property involving payments in excess of $500,000 per annum; or
(xii) is a contract with respect to any acquisition or divestiture of assets, Shares, or other capital stock of, or other Equity Interests in, the Company or any Company Subsidiary, (A) entered into after July 1, 2014, for aggregate consideration in excess of $1,000,000 or (B) pursuant to which the Company or a Company Subsidiary has continuing indemnification, guarantee, "earn-out" or other contingent payment obligations.
(b) Each contract of the type described above in Section 3.14(a), whether or not set forth in Schedule 3.14(a), is referred to herein as a "Company Material Contract." Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is valid and binding on the Company or a Company Subsidiary, as applicable, and, to the knowledge of the Company, each other party thereto, as applicable, and in full force and effect (except that such enforcement may be subject to applicable Enforceability Exceptions), (ii) there is no event or condition which has occurred or exists, which constitutes or would constitute (with or without notice, the happening of any event and/or the passage of time) a default or breach under any Company Material Contract by the Company or by any Company Subsidiary and (iii) neither the Company nor any Company Subsidiary has received written notice from any other party to a Company Material Contract that such other party intends to terminate, not renew, or renegotiate in any material respect the terms of any such Company Material Contract.
(c) The Company has delivered or made available to Parent or provided to Parent for review, prior to the execution of this Agreement, true and complete copies of all of the Company Material Contracts.
Section 3.15 Title to Assets; Liens; Leases.
(a) The Company or one of the Company Subsidiaries has good and valid indefeasible fee simple title to, or in the case of Leased Real Properties, a valid leasehold interest in, all of its all of its Owned Real Property or Leased Real Property (the "Properties") and tangible assets that are necessary for the Company and the Company Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) Liens consisting of zoning or planning restrictions, easements, permits and other restrictions or limitations on the use of real property or irregularities in title thereto, which do not materially, individually or in the aggregate, impair the value of such Properties or the use thereof by the Company in the operation of its business, (ii) Liens for current Taxes, assessments or governmental charges or levies on property or assets not yet due and payable and Liens for Taxes that are being contested in good faith by appropriate proceedings and for which an adequate reserve has been provided on the appropriate financial statements in accordance with GAAP, (iii) Liens created in connection with the Financing and (iv) Liens which would not materially, individually or in the aggregate, impair the value of, or interfere with the use of any such Property or assets by the Company (the foregoing Liens in clauses (i) through (iv), "Permitted Liens"). This Section 3.15(a) does not relate to any Intellectual Property Rights, which are the subject of Section 3.17.
(b) Schedule 3.15(b) sets forth the address of each Owned Real Property. Except as set forth on Schedule 3.15(b), neither the Company nor any Company Subsidiary has subleased, licensed or otherwise granted any Person the right to use or occupy or collaterally assigned or granted any security interest in any such Owned Real Property or any portion thereof.
(c) The Company and the Company Subsidiaries are in compliance with the terms of all Leases to which they are a party, except such compliance which has not had or would not
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reasonable be expect to have, individually or in the aggregate, a Company Material Adverse Effect. To the Company's knowledge, all such material Leases are in full force and effect, and the Company enjoys peaceful and undisturbed possession under all such Leases.
Section 3.16 Environmental Matters. Except for matters that have not had or would not,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(a) the Company and the Company Subsidiaries are, and since July 1, 2014, have been, in compliance with applicable Environmental Laws, including all Environmental Permits; (b) the
Company and the Company Subsidiaries have all the Environmental Permits necessary for the conduct and operation of the business as now being conducted, and all such Environmental Permits are in good
standing; (c) there is not now and has not been any Hazardous Substance used, generated, treated, disposed of or released for which the Company or a Company Subsidiary would have legal
liability or responsibility, or otherwise existing at, on, under or emanating from any Company or Company Subsidiaries owned, leased or operated property or otherwise associated with the business,
except in compliance with and as would not give rise to liability under applicable Environmental Laws; (d) the Company and the Company Subsidiaries have not received any written notice of
alleged, actual or potential responsibility or liability of the Company or any Company Subsidiary for, or any inquiry or investigation of the Company or any Company Subsidiary regarding, any release
or threatened release of Hazardous Substances by or associated with the Company or any Company Subsidiary or alleged violation by the Company or any Company Subsidiary of, or non-compliance by the
Company or any Company Subsidiary with, any Environmental Law; (e) there is no site to which the Company or the Company Subsidiaries have disposed or arranged for disposal of or transported or
arranged for the transport of Hazardous Substances which, to the knowledge of the Company, would reasonably be expected to become the subject of an environmental action or give rise to liability,
except pursuant to projects undertaken under the Company's "Exit Strategy" program; (f) neither the Company nor the Company Subsidiaries have assumed or retained or become subject to, by
contract or operation of law, liabilities under any Environmental Law, except pursuant to projects undertaken under the Company's "Exit Strategy" program; (g) except for insurance where limits
have been exhausted, the policy period has expired, or there has been a buyout of the insurance, to the Company's knowledge, the insurance placed for the "Exit Strategy" program is in full effect and
the Company has no reason to expect any default or nonpayment by the insurers; and (h) the Transactions will not require any filings or other obligations pursuant to the New Jersey Industrial
Site Recovery Act or the Connecticut Transfer Act.
Section 3.17 Intellectual Property.
(a) Schedule 3.17(a) sets forth a true and correct list of all registered Owned Company Intellectual Property and applications for registration or issuance of Owned Company Intellectual Property, including the owner or registrant thereof and: (i) for each patent and patent application, the patent number or application serial number, the jurisdiction in which the patent or application has been filed or issued, and the date filed or issued, (ii) for each registered trademark or service mark, the application serial number or registration number, the jurisdiction of the application or registration, and the date filed or issued, (iii) each URL or domain name registered; and (iv) for each registered copyrighted work, the number and date of registration and the jurisdiction of the registration. The Intellectual Property Rights set forth on Schedule 3.17(a) are subsisting and unexpired, have not been abandoned, canceled or otherwise terminated and, to the knowledge of the Company, are valid and enforceable. The Company and the Company Subsidiaries own all Owned Company Intellectual Property, including all of the Intellectual Property Rights set forth on Schedule 3.17(a), free and clear of all Liens (other than Permitted Liens).
(b) The Company or one of the Company Subsidiaries owns all right, title and interest in and to (free and clear of all Liens other than Permitted Liens), or otherwise has valid and enforceable rights to use, all Intellectual Property Rights used in or necessary to conduct the business of the Company and the Company Subsidiaries as currently conducted, except such Intellectual Property
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Rights that, if not possessed by the Company or one of the Company Subsidiaries, have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Except, in each case for any such infringement or misappropriation that has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) since January 1, 2014, neither the Company, nor any Company Subsidiary, nor the operation of the Company's or any of the Company Subsidiaries' business has infringed upon or misappropriated, or is infringing upon, or misappropriating, the Intellectual Property Rights of another Person and (ii) no action, claim or proceeding alleging infringement, misappropriation, or other violation of any Intellectual Property Right of another Person is pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary. Since January 1, 2014, the Company has not received any written notice relating to any actual or alleged infringement, misappropriation, or violation of any Intellectual Property Right of another Person by Company or any Company Subsidiary. To the knowledge of the Company, no Person or any of such Person's products or services or other operation of such Person's business is infringing upon or misappropriating any Company Intellectual Property in any material respect.
(d) Except for such proceedings or actions that, if resolved against the Company or any Company Subsidiary, have not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, there are no proceedings or actions pending before any Governmental Entity challenging the ownership, use, validity or enforceability of the Owned Company Intellectual Property and, to the knowledge of the Company, no such proceedings or actions have been threatened against the Company or any Company Subsidiary.
(e) The Company and the Company Subsidiaries have taken commercially reasonable steps to protect and secure the ownership of and rights of the Company and the Company Subsidiaries in Owned Company Intellectual Property, including in their confidential information and trade secrets included in the Owned Company Intellectual Property. There has been no unauthorized access to or uses or other security breaches of information technology systems used by or on behalf of the Company or any Company Subsidiary or any such information or data collected, processed, stored, or maintained by or on behalf of the Company or any Company Subsidiary, except for such unauthorized access, uses or security breaches that have not had or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Section 3.18 Compliance with Laws; Permits.
(a) Since July 1, 2014, except in each case for such non-compliance that has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Company and the Company Subsidiaries has complied and is in compliance with all Laws which affect the business, properties or assets of the Company and (ii) no notice, charge or assertion has been received by the Company or any Company Subsidiary or, to the Company's knowledge, threatened against the Company or any Company Subsidiary alleging any non-compliance with any such Laws,. Notwithstanding anything to the contrary in this Section 3.18(a), the provisions of this Section 3.18(a) shall not apply to matters which are the subject of Section 3.11, Section 3.13 and Section 3.16.
(b) The Company and the Company Subsidiaries are in possession of all authorizations, licenses, permits, certificates, approvals and clearances of any Governmental Entity necessary for the Company and the Company Subsidiaries to own, lease and operate their Properties or to carry on their business substantially in the manner described in the Company SEC Documents filed prior to the date hereof and substantially as is being conducted as of the date hereof (the "Company Permits"), and all such Company Permits are valid, and in full force and effect, except where the failure to possess or maintain such Company Permits in full force and effect has not had
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or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Since July 1, 2014, the Company has not received any written notice from any Governmental Entity regarding (i) any actual or possible material violation of any Company Permit or (ii) any actual or possible revocation, withdrawal, suspension, cancelation, termination or modification of any Company Permit, in each case ((i) and (ii)) other than as has not had or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company and Company Subsidiaries comply with the terms of all Company Permits, and no suspension or cancelation of any Company Permit is pending or, to the knowledge of the Company, threatened, except for such noncompliance, suspensions or cancelations that, individually or in the aggregate, have not had or would not reasonably be expected to have a Company Material Adverse Effect.
(c) Since July 1, 2014, the Company and each Company Subsidiary, and, to the knowledge of the Company, each of their respective officers, directors, employees, and any agent or other Person acting on behalf of the Company or any Company Subsidiary, has been in compliance in all material respects with all applicable International Trade Laws and Anti-Bribery Laws. Neither the Company nor any Company Subsidiary, nor, to the knowledge of the Company, any of their respective officers, directors, employees, any agent or other Person acting on behalf of the Company or any Company Subsidiary, is or has been since July 1, 2014, (i) the subject or target of any Sanctions or (ii) organized, resident or located in any country or region that is the subject or target of comprehensive Laws imposing Sanctions, including Cuba, Crimea, Sudan, Syria, Iran, or North Korea.
(d) Since July 1, 2012, neither the Company nor any Company Subsidiary has been convicted of violating any International Trade Law or Anti-Bribery Law or has been the target of any investigation by a Governmental Entity for potential violation of any applicable International Trade Laws or Anti-Bribery Laws.
Section 3.19 Information in the Proxy Statement. The letter to stockholders, notice of meeting,
proxy statement and form of proxy that will be provided to stockholders of the Company in connection with the
Merger (including any amendments or supplements thereto) and any annexes, schedules or exhibits required to be filed with the SEC in connection therewith (collectively, the
"Proxy Statement") will not, on the date of filing with the SEC, at the time the Proxy Statement is first mailed and at the time of the Special Meeting,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which
they are made, not misleading, or to correct any statement made in any earlier communication with respect to the solicitation of any proxy or approval for the Merger in connection with which the Proxy
Statement shall be mailed, except that no representation or warranty is made by the Company with respect to information supplied in writing by Parent, Merger Sub or any affiliate of Parent or Merger
Sub expressly for inclusion therein. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act.
Section 3.20 Opinion of Financial Advisor. The Company Board of Directors has received an
opinion from Houlihan Lokey Capital, Inc. (the "Company Financial
Advisor") to the effect that, as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth in such opinion, the Merger Consideration
to be received in the Merger by the holders of the Shares (other than the Company, Parent, Merger Sub, their respective affiliates and the holders of Dissenting Shares) pursuant to this Agreement is
fair, from a financial point of view, to such holders, and as of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.
Section 3.21 Insurance. The Company and the Company Subsidiaries are either self-insured or have
policies of insurance covering the Company, the Company Subsidiaries or any of their
respective employees, properties or assets, including policies of contractors' pollution liability, general liability,
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property, fire, workers' compensation, products liability, directors' and officers' liability, and other casualty and liability insurance, and such policies are in a form, and in each case in such amounts and with respect to such risks and losses, which the Company believes is adequate for the operation of its business. All such insurance policies are in full effect, no written notice of cancelation has been received by the Company or any Company Subsidiary under such policies, and there is no existing default or event which, with the giving of notice of lapse or time or both, has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 3.22 Related Party Transactions. Except as set forth in the Company SEC Documents or
compensation or other employment or the Company Board of Directors arrangements in the ordinary course, there
are no transactions, agreements, arrangements or understandings between the Company or any Company Subsidiary, on the one hand, and any affiliate (including any officer or director) thereof, on the
other hand.
Section 3.23 Brokers; Expenses. No broker, investment banker, financial advisor or other Person
(other than the Company Financial Advisor, whose fees and Expenses shall be paid by the Company)
is entitled to receive any broker's, finder's, financial advisor's or other similar fee or commission in connection with this Agreement or the Merger based upon arrangements made by or on behalf of
the Company or any Company Subsidiary.
Section 3.24 Takeover Statutes. Assuming the accuracy of the representation and warranty
contained in Section 4.6, the Company Board of
Directors and the Company have taken all action necessary to exempt the Merger, this Agreement and the Transactions from the prohibitions on business combinations set forth in Section 203 of
the DGCL. No other "fair price," "moratorium," "control share acquisition," "business combination," or other anti-takeover statute or Law (each, together with Section 203 of the DGCL, a
"Takeover Law") is applicable to the Company or the Transactions. None of the Company or any Company Subsidiary has adopted a stockholder rights
agreement, rights plan, "poison pill" or other similar agreement that is currently in effect.
Section 3.25 Government Contracts. Since July 1, 2014, neither the Company nor any Company
Subsidiary has (a) breached or violated any Law, certification, representation, clause,
provision or requirement pertaining to any Government Contract; (b) been suspended or debarred from bidding on government contracts by a Governmental Entity; (c) to the knowledge of the
Company, been audited or investigated by any Governmental Entity with respect to any Government Contract (other than in the ordinary course of business, such as routine audits by the DCAA and OFCCP);
(d) conducted or initiated any internal investigation or made any disclosure to any Governmental Entity with respect to any alleged or potential irregularity, misstatement or omission arising
under or relating to a Government Contract; (e) received from any Governmental Entity or any other Person any written notice of breach, cure, show cause or default with respect to any
Government Contract; or (f) had any Government Contract terminated by any Governmental Entity or any other Person for default or failure to perform; except, in each case of clauses (a)
through (f), as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 3.26 No Other Representations or Warranties. Except for the representations and
warranties set forth in this Article III, neither the Company nor any
other Person makes any express or implied representation or warranty with respect to the Company or the Company Subsidiaries, or their respective businesses, operations, assets, liabilities or
conditions (financial or otherwise), or with respect to any other information provided to Parent or Merger Sub, in each case in connection with this Agreement or the Transactions, and the Company
hereby disclaims any such other representations and warranties.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUB
Parent and Merger Sub represent and warrant to the Company, jointly and severally, as set forth in this Article IV.
Section 4.1 Organization and Qualification. Each of Parent and Merger Sub is a corporation or
other legal entity duly organized, validly existing and in good standing (with respect to jurisdictions which
recognize such concept) under the laws of the jurisdiction in which it is organized and has the requisite corporate or other power, as the case may be, and authority to conduct its business as now
being conducted, except for those jurisdictions where the failure to be so organized, existing or in good standing, individually or in the aggregate, would not impair or delay in any material respect
the ability of each of Parent and Merger Sub, as the case may be, to perform its obligations under this Agreement or prevent or materially delay the consummation of the Transactions.
Section 4.2 Authorization; Validity of Agreement; Necessary Action. Each of Parent and Merger
Sub has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the Transactions. The
execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by each of them of the Transactions have been duly authorized by all necessary corporate action on
the part of Parent and Merger Sub, subject to the adoption of this Agreement by Parent as the sole stockholder of Merger Sub, and no other corporate action on the part of either Parent or Merger Sub
is necessary to authorize the execution and delivery by Parent and Merger Sub of this Agreement and the consummation of the Transactions. This Agreement has been duly executed and delivered by Parent
and Merger Sub and, assuming due and valid authorization, execution and delivery hereof by the Company, is the valid and binding obligation of each of Parent and Merger Sub enforceable against each of
them in accordance with its terms, except that the enforcement hereof may be limited by Enforceability Exceptions.
Section 4.3 Consents and Approvals; No Violations. None of the execution, delivery or
performance of this Agreement by Parent and Merger Sub, the consummation by Parent and Merger Sub of the Merger or any other
Transactions or compliance by Parent or Merger Sub with any of the provisions of this Agreement will (a) conflict with or result in any breach of any provision of the organizational documents
of Parent or Merger Sub, (b) require any filing by Parent or any of its Subsidiaries with, or the obtaining of any permit, authorization, consent or approval of, any Governmental Entity (except
for (i) compliance with any applicable requirements of the Exchange Act, (ii) any filings as may be required under the DGCL in connection with the Merger, (iii) filings, permits,
authorizations, consents and approvals as may be required under the HSR Act and any other Required Governmental Approvals or (iv) such filings with the SEC as may be required on behalf of
Merger Sub and Parent in connection with this Agreement and the Merger), (c) result in a modification, violation or breach of, or constitute (with or without notice or lapse of time or both) a
default or result in the creation of any Liens, or give rise to any right, including any right of termination, amendment, cancelation or acceleration, under, any of the terms, conditions or provisions
of any material contract to which Parent or any of its Subsidiaries is a party, or (d) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent or Merger
Sub, any of their Subsidiaries, or any of their properties or assets; except in each of clauses (b), (c) or (d) where (A) any failure to obtain such permits,
authorizations, consents or approvals, (B) any failure to make such filings or (C) any such modifications, violations, rights, Liens, breaches or defaults would not, individually or in
the aggregate, impair or delay in any material respect the ability of each Parent or Merger Sub to perform its obligations under this Agreement, as the case may be, or prevent or materially delay the
consummation of the Transactions.
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Section 4.4 Litigation. As of the date hereof, there is no Legal Proceeding pending against (or,
to the knowledge of Parent, threatened against or naming as a party thereto) Parent or
any of its Subsidiaries, nor, to the knowledge of Parent, is there any audit, inquiry or investigation of a Governmental Entity pending or threatened against Parent or any of its Subsidiaries, and
none of Parent or any of its Subsidiaries is subject to any outstanding order, writ, injunction, award or decree, in each case, which would, individually or in the aggregate, impair or delay in any
material respect the ability of each of Parent and Merger Sub to perform its obligations under this Agreement, as the case may be, or prevent the consummation of any of the Transactions.
Section 4.5 Information in the Proxy Statement. None of the information supplied by Parent,
Merger Sub or any affiliate or Representative of Parent or Merger Sub, expressly for inclusion or incorporation by
reference in the Proxy Statement (or any amendment thereof or supplement thereto) will, on the date of filing with the SEC, at the time the Proxy Statement is first mailed and at the time of the
Special Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of
the circumstances under which they are made, not misleading. Neither Parent nor Merger Sub makes any representation or warranty with respect to any information supplied by any other Person that is
included in the Proxy Statement.
Section 4.6 Ownership of Company Capital Stock. Neither Parent, Merger Sub nor any of their
respective affiliates is, nor at any time during the last three (3) years has been, an "interested stockholder"
of the Company as defined in Section 203 of the DGCL.
(a) Parent has delivered to the Company a true, correct and complete copy of the executed Equity Commitment Letter from a certain Person (the "Equity Investor") relating to the commitment of the Equity Investor to provide cash equity in the aggregate amount set forth therein for the purpose of funding the Transactions (the "Equity Financing"). The Equity Commitment Letter provides, and will continue to provide until such time as this Agreement and/or the Equity Commitment Letter is terminated, that the Company is a third party beneficiary thereof as set forth therein.
(b) As of the date hereof: (i) the Equity Commitment Letter is in full force and effect and has not been withdrawn, terminated or rescinded in any respect or otherwise amended, supplemented or modified in any respect; (ii) the Equity Commitment Letter is a legal, valid and binding obligation of Merger Sub, Parent, and the Equity Investor; (iii) except for the Equity Commitment Letter delivered to the Company, there are no side letters or other agreements, contracts or arrangements relating to the Equity Financing or the Equity Commitment Letter that could affect the amount, availability or conditionality of the Equity Financing, to which Merger Sub, Parent, or any of their respective affiliates is a party; and (v) assuming the satisfaction of the conditions to Merger Sub's and Parent's obligation to consummate the Merger (pursuant to Section 7.1 and Section 7.2), to the knowledge of Merger Sub and Parent, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (A) constitute a default or breach on the part of Merger Sub, Parent or their respective affiliates with respect to the Equity Financing and the Equity Investor under any term of the Equity Commitment Letter, (B) result in a failure of any condition of the Equity Commitment Letter, or (C) result in any portion of the Equity Financing contemplated thereby to be unavailable. Assuming the satisfaction of the conditions to Parent's obligation to consummate the Merger (pursuant to Section 7.1 and Section 7.2) and the accuracy of the representations and warranties of the Company in Article III and compliance with the covenants and obligations of the Company under this Agreement, the aggregate net proceeds of the Equity Financing, together with available cash on hand at the Company and the Company Subsidiaries, will be sufficient for the satisfaction
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of all of Merger Sub's and Parent's obligations under this Agreement, including the payment in cash of the aggregate Merger Consideration pursuant to Section 2.1(a), all amounts to be paid pursuant to Section 2.4, the payment of all associated costs and Expenses (including any repayment or refinancing of indebtedness of the Company required in connection therewith and the Expenses payable by Parent pursuant to Section 9.3) and the payment of all other amounts required to be paid by Parent and Merger Sub in connection with the consummation of the Transactions. There are no conditions precedent or other contingencies related to the funding or investing, as applicable, of the full amount of the Equity Financing, other than as expressly set forth in the Equity Commitment Letter. As of the date hereof, assuming the satisfaction of the conditions to Merger Sub's and Parent's obligation to consummate the Merger (pursuant to Section 7.1 and Section 7.2), neither Merger Sub nor Parent has any reason to believe that any of the conditions to the Equity Financing will not be satisfied or that the full amount of the Equity Financing will not be available to Merger Sub on the date of the Closing.
(c) Concurrently with the execution of this Agreement, Parent has delivered to the Company the limited guarantee of the Equity Investor with respect to certain matters on the terms specified therein (the "Guarantee"). The Guarantee is in full force and effect (assuming the due authorization, execution and delivery thereof by the Company) and constitutes the legal, valid and binding obligation of the Equity Investor, enforceable in accordance with its terms, subject to the Enforceability Exceptions. No event has occurred that would reasonably be expected to result in a breach of, or a default under, the Guarantee on the part of the Equity Investor.
Section 4.8 Ownership and Operations of Merger Sub. Parent owns beneficially and of record all of
the outstanding capital stock of Merger Sub. Merger Sub was formed solely for the purpose of engaging in the
Transactions, has engaged in no other business activities, has conducted its operations only as contemplated hereby, and has not incurred any liabilities or other obligations (other than to the
Company pursuant to this Agreement or otherwise in connection with the consummation of the Transactions).
Section 4.9 Brokers and Other Advisors. No broker, investment banker, financial advisor, agent or
other Person is entitled to any broker's, finder's, financial advisor's, agent's or other similar fee or
commission in connection with the Transactions based upon arrangements made by or on behalf of Parent, Merger Sub or any of their Subsidiaries.
Section 4.10 No Agreements with Stockholders. Other than the Support Agreements, as of the date
hereof, none of Parent, Merger Sub or any of their respective affiliates or any other Person on behalf of Parent
or Merger Sub or their respective affiliates has entered into any contract, commitment, agreement, instrument, obligation, arrangement, understanding or undertaking, whether written or oral, with any
stockholder of the Company (where such stockholder has entered into such contract, commitment, agreement, instrument, obligation, arrangement, understanding or undertaking in his or her or its
capacity as a stockholder of the Company), including any "lock up" or similar arrangements pertaining to the Capital Stock of the Company held by such stockholder.
Section 4.11 No Agreements with Management. Other than this Agreement, as of the date hereof,
there are no contracts, commitments, agreements, instruments, obligations, arrangements, understandings or
undertakings, whether written or oral, between Parent or Merger Sub or any of their affiliates or Representatives, on the one hand, and any member of the Company's management or the Company Board of
Directors, on the other hand, relating in any way to the Transactions or the operations of the Company after the Effective Time.
Section 4.12 Solvency. Neither Merger Sub nor Parent is entering into this Agreement with the
intent to hinder, delay or defraud either present or future creditors of the Company and/or
the Company Subsidiaries. After giving effect to the Transactions, including the Financing, the payment of the aggregate Merger Consideration pursuant to Section 2.1(a), all amounts to be paid
pursuant to
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Section 2.4, the payment of all associated costs and Expenses (including any repayment or refinancing of indebtedness of the Company required in connection therewith and the Expenses payable by Parent pursuant to Section 9.3) and the payment of all other amounts required to be paid by Parent and Merger Sub in connection with the consummation of the Transactions and to allow Merger Sub and Parent to perform all of their obligations under this Agreement, and assuming the satisfaction of the conditions to Merger Sub's and Parent's obligations to consummate the Merger and the accuracy of the representations and warranties in Article III and compliance with the covenants and obligations of the Company under this Agreement, the Surviving Corporation will be Solvent as of and immediately after the Effective Time. For the purposes of this Agreement, the term "Solvent" means that, as of any date of determination and with respect to any Person: (a) the present "fair saleable value" of the assets of such Person and its Subsidiaries, on a consolidated basis, is greater than the total amount of "liabilities, including contingent liabilities," of such Person and its Subsidiaries, on a consolidated basis, as of such date, (b) the present "fair saleable value" of the assets of such Person and its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the probable liability of such Person and its Subsidiaries, on a consolidated basis, on their existing debts and liabilities as they become absolute and matured (the quoted terms in clause (a) and (b) as are generally determined in accordance with applicable federal or state Laws governing determination of insolvency of debtors), (c) such Person and its Subsidiaries, on a consolidated basis, are not engaged in business, and are not about to engage in business, for which such Person's and its Subsidiaries' assets, on a consolidated basis, would constitute unreasonably small capital, and (d) such Person and its Subsidiaries, on a consolidated basis, intend to, and believe that they will, pay their debts and liabilities as they mature.
Section 4.13 Investigation; Limitation on Warranties; Disclaimer of Other Representations and Warranties.
Each of Parent and Merger Sub has conducted its own independent review and analysis of the business, operations, assets, intellectual property, technology, liabilities, results of
operations, financial condition and prospects of the Company and the Company Subsidiaries and acknowledges that each of Parent and Merger Sub has been provided access to personnel, properties,
premises and records of the Company and the Company Subsidiaries for such purposes. In entering into this Agreement, each of Parent and Merger Sub has relied solely upon its independent investigation
and analysis of the Company and the Company Subsidiaries, and each of Parent and Merger Sub acknowledges and agrees that it has not been induced by and has not relied upon any representations,
warranties or statements, whether express or implied, made by the Company, any Company Subsidiary, or any of their respective affiliates, stockholders, controlling persons or Representatives that are
not expressly set forth in this Agreement, whether or not such representations, warranties or statements were made in writing or orally. Parent and Merger Sub each acknowledge and agree that, except
for the representations and warranties expressly set forth in Article III, (a) the Company does not make, and has not made, any
representations or warranties relating to itself or its business or otherwise in connection with the Merger and Parent and Merger Sub are not relying on any representation or warranty except for those
expressly set forth in Article III, (b) no Person has been authorized by the Company to make any representation or warranty relating to
itself or its business or otherwise in connection with the Merger, and if made, such representation or warranty must not be relied upon by Parent or Merger Sub as having been authorized by such party
and (c) any estimates, projections, predictions, data, financial information, memoranda, presentations or any other materials or information provided or addressed to Parent, Merger Sub or any
of their Representatives are not and shall not be deemed to be or include representations or warranties unless any such materials or information is the subject of any express representation or
warranty set forth in Article III.
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ARTICLE V
CERTAIN COVENANTS OF THE COMPANY
Section 5.1 Conduct of Business by the Company Pending the Closing. The Company agrees that between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (w) as set forth in Schedule 5.1, (x) as required pursuant to this Agreement, (y) as may be required by Law or (z) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall and shall cause the Company Subsidiaries, (1) to use their respective reasonable best efforts to conduct its and their business in all material respects in the ordinary course of business, (2) to use their respective reasonable best efforts to preserve intact its material assets, properties, contracts, licenses and business organizations and (3) not to, directly or indirectly:
(a) (i) amend its certificate of incorporation or bylaws or equivalent organizational documents; (ii) adopt or implement any stockholder rights plan or similar arrangement; or (iii) form a Company Subsidiary;
(b) adjust, split, combine, subdivide, recapitalize or reclassify any Shares or any other capital stock of, or other Equity Interest in, the Company or any Company Subsidiary;
(c) make, authorize, declare, set aside, establish a record date for or pay any dividend or other distribution payable in cash, stock or property (or any combination thereof) with respect to the Company's Capital Stock or any other capital stock of any Company Subsidiary;
(d) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any Shares, or any other capital stock of, or other Equity Interests in, the Company or any Company Subsidiary, except (i) from holders of Company Options, to the extent such Company Options are disclosed in Section 3.2 or granted after the date hereof not in violation of the terms of this Agreement, in full or partial payment of any exercise price and any applicable Taxes payable by such holder upon exercise of the Company Options to the extent required or permitted under the terms of such Company Options, or (ii) from holders of Restricted Awards, to the extent such Restricted Awards are disclosed in Section 3.2 or granted after the date hereof not in violation of the terms of this Agreement, in full or partial payment of any purchase price and any applicable Taxes payable by such holder upon the lapse of restrictions on the Restricted Awards;
(e) issue, sell, pledge, deliver, transfer, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or warrants, calls, commitments or rights of any kind to acquire, any Shares or other capital stock of, or Equity Interest in, the Company or any Company Subsidiaries, of any class, or grant to any Person any right the value of which is based on the value of Shares or other capital stock, or other Equity Interests, of the Company and the Company Subsidiaries, other than (i) the issuance of Shares reserved for issuance on the date hereof pursuant to the exercise of the Company Options or vesting or settlement of Restricted Awards, in each case, outstanding as of the date hereof and disclosed in Section 3.2, or granted after the date hereof in compliance with the terms of this Agreement and (ii) the grant of Company Options or Restricted Awards to new hires, not to exceed 10,000 Shares underlying each individual Company Equity Awards and 100,000 Shares underlying the aggregate of all such Company Equity Awards for such new hires;
(f) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or any series of related transactions any capital stock or other Equity Interests in any Person or any business, corporation, partnership, joint venture, limited liability company, association, business organization or division of any Person or all or substantially all of the assets of any Person (or business or division thereof);
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(g) transfer, lease, license, sell, mortgage, pledge, dispose of, abandon, permit to lapse (other than in accordance with its term), guarantee, exchange, incur or encumber any of its properties or assets, in each case, in excess of $100,000 individually or $500,000 in the aggregate, other than dispositions in the ordinary course of obsolete assets no longer used in the operation of the business;
(h) except for (i) borrowings under the Credit Agreement in the ordinary course of business or (ii) intercompany loans between the Company and any wholly-owned Company Subsidiary, or between wholly-owned Company Subsidiaries: (A) incur, prepay, issue, syndicate, refinance or assume any long-term or short-term indebtedness, (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person that is not an affiliate of the Company for borrowed money, (C) make any loans, advances or capital contributions to, or investments in, any other Person, (D) cancel any Indebtedness or waive any claims or rights of substantial value or (E) grant any Lien (other than Permitted Liens);
(i) except (i) as required by the terms of any Benefit Plan, agreement or other contract in effect on the date hereof, or (ii) in order to effectuate the actions required by Section 2.4, (A) increase the salary or bonus opportunity or other compensation or benefits of any Participant (other than salary increases in the ordinary course of business with respect to employees whose compensation does not and would not exceed, on an annualized basis, $200,000), (B) grant any Participant any increase in severance or termination pay, (C) establish, adopt or enter into any collective bargaining agreement, (D) increase the compensation coverage or benefits available under any (or create any new) Benefit Plan or otherwise modify or amend or terminate any Benefit Plan, (E) accelerate or commit to accelerate the funding, payment, or vesting of any compensation or benefits to any Participant, or (F) hire or otherwise enter into any employment or consulting agreement or arrangement with any individual or terminate any officer, director, employee or individual consultant, in each case, whose compensation exceeds or would exceed, on an annualized basis, $200,000; provided that the foregoing clauses (A) through (D) shall not restrict the Company from entering into or making available plans, agreements, benefits and compensation arrangements to newly hired employees or to existing employees in the context of promotions, or from paying bonuses to employees under the Company's applicable bonus plans for the fiscal year ending on June 30, 2017 based on actual achievement of applicable performance goals and, in each case, in the ordinary course of business;
(j) incur any capital expenditures or any obligations or liabilities in respect thereof in excess of $500,000, individually or in the aggregate, except those contemplated in the capital expenditures budget for the Company made available to Parent;
(k) enter into any agreement or arrangement that materially limits or otherwise materially restricts the Company or any Company Subsidiary or, upon completion of the Transactions, Parent or its affiliates or any successor thereto, from engaging or competing in any line of business in which such Person is currently engaged or in any geographic area material to the business or operations of such Person;
(l) change any of the accounting methods used by it materially affecting its assets, liabilities or business, except for such changes required by GAAP, applicable Laws or any Governmental Entity;
(m) make, change or rescind any material Tax election, file any amended Tax Return with respect to any material Tax, adopt or change any annual Tax accounting period or method of Tax accounting, enter into any material closing agreement with respect to Taxes, settle any material Tax claim or assessment, surrender any right to claim a material Tax refund, offset or other reduction
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in liability, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or the Company Subsidiaries;
(n) settle, waive, release or compromise any (i) professional or general liability claims or workers' compensation claims against the Company or any of the Company Subsidiaries, other than settlements or compromises of any such claims in the ordinary course of business or where the amount paid in settlement or compromise does not exceed the aggregate amount reserved against for professional and general liability claims or workers' compensation claims, as applicable, in the most recent financial statements (or the notes thereto) of the Company included in the Company's annual report on Form 10-K for the fiscal year ending on June 30, 2016, as updated for additional budgeted provisions in the ordinary course of business; or (ii) other Legal Proceedings against, any tolling agreement with respect to or any audit, inquiry or investigation of a Governmental Entity with respect to the Company or any of the Company Subsidiaries (including any audit, examination or other proceeding with respect to Taxes), other than settlements or compromises (A) where the amount paid in settlement or compromise does not exceed $250,000 individually or $500,000 in the aggregate, (B) where the amount paid in settlement does not exceed the amount reserved against such matter in the most recent financial statements (or the notes thereto) of the Company included in the Company's annual report on Form 10-K for the fiscal year ending on June 30, 2016 or (C) that would not impose equitable or injunctive relief, material restrictions, effects or obligations on the business of the Company or any Company Subsidiary;
(o) except in the ordinary course of business, (i) enter into, terminate, materially modify or waive any material provision of any Company Material Contract or (ii) enter into any new contract that would have been a Company Material Contract if it were entered into on or prior to the date of this Agreement;
(p) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger);
(q) engage in any transaction with, or enter into any contract with, any affiliate of the Company or other Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404 of Regulation S-K;
(r) implement or announce any material employee layoffs or location closings;
(s) maintain insurance at less than current levels, materially alter or otherwise take any action to materially affect any coverage (including availability of such coverage) with respect to insurance policies or otherwise in a manner inconsistent with past practice; or
(t) enter into any agreement, contract, commitment or arrangement to do any of the foregoing, or authorize any of the foregoing.
(a) The Company shall not, and shall not permit or authorize any of the Company Subsidiaries or its or their respective Representatives, directly or indirectly, to (i) solicit, facilitate or initiate or knowingly encourage or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Competing Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Competing Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data with respect to, or otherwise cooperate in any way with, any Competing Proposal, (iii) approve, endorse or recommend any proposal that constitutes or is reasonably likely to lead to any Competing Proposal, (iv) other than an Acceptable Confidentiality Agreement, enter into any merger agreement, letter of intent, term sheet, agreement in principle, memorandum of
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understanding, acquisition agreement or other similar agreement providing for, facilitating or endorsing a Competing Proposal or enter into any contract, agreement or arrangement requiring the Company to abandon, terminate or fail to consummate the Transactions, or (v) furnish to any Person (other than Parent, its affiliates or any of their Representatives, the Company's affiliates or the Representatives of the Company or any of the Company's affiliates) any information relating to the Company or any Company Subsidiary or to afford to any Person access to the business, properties, assets, books, records of other information, or to any personnel, of the Company and Company Subsidiaries (other than Parent, its affiliates or any of their Representatives, the Company's affiliates or the Representatives of the Company or any of the Company's affiliates). The Company shall, and shall cause each of the Company Subsidiaries to, and use its reasonable best efforts to cause its and their Representatives to (A) immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Competing Proposal, (B) request the prompt return or destruction of all non-public information previously furnished in connection therewith and cease to provide any further information with respect to the Company, any Company Subsidiary or any Competing Proposal to such Person, (C) terminate "data room" access for any Person (other than Parent and its affiliates) and (D) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its affiliates or Representatives is a party with respect to any Competing Proposal, and enforce the provisions of any such agreement.
(b) Neither the Company Board of Directors nor any committee thereof shall (i) (A) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in each case in a manner adverse to Parent or Merger Sub, or otherwise make any statement or proposal inconsistent with, the Company Board Recommendation, (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Competing Proposal or (C) fail to include the Company Board Recommendation in the Proxy Statement, (D) following the disclosure or announcement of a Competing Proposal, at the written request of Parent, or at any other time following a written request by Parent, fail to reaffirm publicly the Company Board Recommendation within five (5) business days (provided that Parent shall be only allowed to make one such reaffirmation request with respect to each such disclosure or announcement of a Competing Proposal made prior to obtaining the Requisite Stockholder Approval, and otherwise only one such reaffirmation request not in connection with any such disclosure or announcement of a Competing Proposal), (E) following the commencement of a tender offer or exchange offer relating to the Shares by a Person unaffiliated with Parent, fail to reaffirm the Company Board Recommendation and recommend that the Company's stockholders reject such tender offer or exchange offer within five (5) business days after the commencement of such tender offer or exchange offer pursuant to Rule 14d-9(f) under the Exchange Act (or, if earlier, by the close of business on the business day immediately preceding the scheduled date of the Special Meeting) or (F) resolve, agree or propose to take any such actions (each such action set forth in this Section 5.2(b)(i) being referred to herein as a "Change of Recommendation") or (ii) cause or permit the Company to enter into any definitive or binding agreement, letter of intent, term sheet, agreement in principle, memorandum of understanding, acquisition agreement or other similar agreement providing for, facilitating or endorsing a Competing Proposal.
(c) Notwithstanding the limitations set forth in Section 5.2(a) and Section 5.2(b), if at any time prior to obtaining the Requisite Stockholder Approval, the Company receives a bona fide written Competing Proposal that did not result from a breach of this Section 5.2, the Company may contact the Person making such Competing Proposal solely to clarify the terms and conditions thereof, and if such Competing Proposal (i) constitutes a Superior Proposal or (ii) the Company Board of Directors determines in good faith after consultation with the Company's outside legal and financial advisors would reasonably be expected to result, after the taking of any of the actions
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referred to in either of clause (A) or (B), in a Superior Proposal, the Company may take the following actions: (A) furnish non-public information to the Person making such Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (B) engage in discussions or negotiations with such Person with respect to the Competing Proposal; provided that, as promptly as reasonably practicable (and in any event within forty-eight (48) hours) following the Company taking such actions as described in clauses (A) and (B) above, the Company shall (1) provide written notice to Parent of such Superior Proposal or the determination of the Company Board of Directors as provided for in clause (ii) above, as applicable and (2) provide to Parent any information concerning the Company or the Company Subsidiaries provided to such Person which was not previously provided to Parent.
(d) The Company shall as promptly as reasonably practicable (and in any event within forty-eight (48) hours) following the receipt of any written Competing Proposal, provide Parent with the material terms of any such Competing Proposal (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and the identity of the Person or group of Persons making such Competing Proposal; provided, however, that the Company shall not be required to disclose the identity of the Person making such Competing Proposal if such disclosure is prohibited by the terms of a confidentiality agreement with such Person. The Company shall keep Parent reasonably informed on a reasonably prompt basis (and in any event within forty-eight (48) hours of any material development) of the status and details (including amendments) of any such Competing Proposal and provide Parent with any documents describing or evidencing any such Competing Proposal.
(e) Notwithstanding the limitations set forth in Section 5.2(a) and Section 5.2(b), at any time prior to obtaining the Requisite Stockholder Approval, the Company Board of Directors may, if the Company Board of Directors determines in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with the proper exercise of its fiduciary duties to the stockholders of the Company under applicable Law, cause the Company to terminate this Agreement pursuant to Section 8.1(h) (including payment of the applicable Company Termination Fee) and concurrently enter into a definitive agreement with respect to a Superior Proposal; provided, however, that the Company Board of Directors may not terminate this Agreement pursuant to this Section 5.2(e) unless:
(i) the Company shall have provided prior written notice to Parent, at least seventy-two (72) hours in advance (the "Notice Period"), of its intention to terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the Person making such Superior Proposal and substantially complete copies of all forms of agreements with respect to such Superior Proposal);
(ii) prior to terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, the Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its affiliates in good faith (to the extent Parent and its affiliates also have notified the Company that they so seek to negotiate) to make such adjustments in the terms and conditions of this Agreement, the Equity Commitment Letter and the Guarantee, as applicable, so that the Competing Proposal would cease to constitute a Superior Proposal; and
(iii) taking into account all adjustments to the terms of this Agreement that may be offered in writing by Parent pursuant to this Section 5.2(e) as described above, the Company Board of Directors determines in good faith after consultation with the Company's outside legal and financial advisors that such Competing Proposal still constitutes a Superior Proposal
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(it being understood and agreed that any change to the financial or other material terms of a Competing Proposal that was previously the subject of a notice hereunder shall require a new notice to Parent as provided above, but with respect to any such subsequent notices, references herein to a "seventy-two (72) hours" shall be deemed references to "forty-eight (48) hours").
(f) Notwithstanding anything to the contrary in Section 5.2(a) or Section 5.2(b), at any time prior to obtaining the Requisite Stockholder Approval, the Company Board of Directors may take any of the actions described in clauses (A), (C), (D) of Section 5.2(b)(i) or, solely for the purposes of such clauses (A), (C) and (D), clause (F) of Section 5.2(b)(i) if, following the occurrence of an Intervening Event, (i) the Company Board of Directors determines in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with the proper exercise of its fiduciary duties to the stockholders of the Company under applicable Law and (ii) the Company Board of Directors shall have (A) first provided prior written notice to Parent that it is prepared to effect a Change of Recommendation, which notice shall include a reasonably detailed description of the facts and circumstances relating to such Intervening Event, and (B) complied, as applicable, with the requirements set forth in Section 5.2(e) as if such provisions related to an Intervening Event instead of a Superior Proposal.
(g) The Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective affiliates) from the restrictions on "business combinations" contained in Section 203 of the DGCL (or any similar provision of applicable Law) or otherwise cause such restrictions not to apply, or agree to do any of the foregoing, in each case unless such actions are taken substantially concurrently with a termination of this Agreement pursuant to Section 8.1(h). Nothing contained in this Section 5.2 or elsewhere in this Agreement shall prohibit the Company Board of Directors from (i) complying with its disclosure obligations under U.S. federal or state Law with respect to a Competing Proposal, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or any other similar communication to stockholders or (ii) making any "stop, look and listen" communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act (which shall be deemed to not constitute a Change of Recommendation); provided, however, that the foregoing will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement, including whether there has been a Change of Recommendation.
Section 5.3 Proxy Statement. The Company shall prepare and file with the SEC, subject to
providing Parent with a reasonable opportunity to review and comment on such filing and giving good
faith consideration to including any such reasonable comments provided by Parent, as promptly as reasonably practicable (and in any event no later than fifteen (15) business days) after the
date hereof, a preliminary Proxy Statement (the "Preliminary Proxy Statement") relating to the Merger as required by the Exchange Act. Each of Parent
and Merger Sub shall furnish to the Company the information relating to it required by the Exchange Act to be included in the Preliminary Proxy Statement. The Company shall obtain and furnish the
information required to be included in the Preliminary Proxy Statement, shall provide Parent with any comments and copies of all correspondence that may be received from the SEC or its staff or any
other Governmental Entities with respect thereto, shall respond promptly to any such comments made by the SEC or its staff or any other Governmental Entities with respect to the Preliminary Proxy
Statement (after providing Parent with a reasonable opportunity to review and comment on such response and giving good faith consideration to including any such reasonable comments provided by
Parent), shall cause the Proxy Statement to be mailed to the Company's stockholders at the earliest reasonably practicable date and shall use its reasonable best efforts (subject to Section 5.2) to
obtain the necessary approval of the Merger by its stockholders. If, at any time prior to the Special Meeting, any information
relating to the Company, Parent, Merger Sub,
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any of their respective affiliates, this Agreement or the Transactions (including the Merger), should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an amendment or supplement describing such information shall be prepared by the Company and, after providing Parent with a reasonable opportunity to review and comment on such amendment or supplement and giving good faith consideration to including any such reasonable comments provided by Parent, filed with the SEC, and to the extent required by applicable Law, disseminated to the stockholders of the Company. Except as Section 5.2 expressly permits, the Proxy Statement shall include the Company Board Recommendation. The Company shall as promptly as reasonably practicable after the date hereof, set a record date for the Special Meeting and commence a broker search pursuant to Section 14a-13 of the Exchange Act in connection therewith.
Section 5.4 Stockholder Approval. The Company shall, as promptly as reasonably practicable
following the date of this Agreement, establish a record date for, duly call, give notice of, convene and
hold a meeting of its stockholders (the "Special Meeting") for the initial purpose of obtaining the Requisite Stockholder Approval required in
connection with this Agreement and the Merger, and shall use its reasonable best efforts to cause such meeting to occur as soon as reasonably practicable (and in any event, such meeting shall be held
no later than 35 calendar days after (a) the tenth (10th) calendar day after the Preliminary Proxy Statement has been filed with the SEC (or if such date is not a business day,
the next succeeding business day) if by such date the SEC has not informed the Company that it intends to review the Proxy Statement or (b) if by such tenth (10th) calendar day,
the SEC has informed the Company that it intends to review the Proxy Statement, the date on which the SEC confirms that it has no further comments on the Proxy Statement). Notwithstanding anything to
the contrary contained in this Agreement, the Company may only adjourn or postpone the Special Meeting (i) to the extent necessary to ensure that any required supplement or amendment to the
Proxy Statement is provided to the Company's stockholders within a reasonable amount of time in advance of the Special Meeting, (ii) if as of the time for which the Special Meeting is
originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Special
Meeting or (iii) with Parent's written consent. Except as specifically permitted by Section 5.2, the Company Board of Directors shall
continue to recommend that the Company's stockholders vote in favor of the adoption of the agreement of merger (as such term is used in Section 251 of the DGCL) contained in this Agreement and
the Company shall use its reasonable best efforts to obtain from its stockholders the Requisite Stockholder Approval. Unless this Agreement shall have been terminated in accordance with Section 8.1,
the Company shall submit the agreement of merger contained in this Agreement to its stockholders for adoption without regard to
whether the Company Board of Directors has withdrawn, modified or qualified, or has publicly proposed to withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board
Recommendation.
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ARTICLE VI
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 6.1 Access; Confidentiality. From the date of this Agreement until the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall, upon reasonable prior notice, give Parent and Merger Sub and their respective Representatives reasonable access during normal business hours to the contracts, books, records, analysis, projections, plans, systems, senior management, commitments, offices and other facilities and properties of the Company and the Company Subsidiaries. The terms of the Confidentiality Agreement shall apply to any information provided to Parent or Merger Sub pursuant to this Section 6.1. Notwithstanding anything to the contrary set forth herein, the Company shall not be required to provide access to, or to disclose information, where such access or disclosure would (a) jeopardize the attorney-client privilege of the Company or (b) contravene any applicable Law or written contractual restriction containing confidentiality obligations prohibiting such disclosure, except that, in the case of clauses (a) or (b), the Company shall use its reasonable best efforts to otherwise make available such information to Parent and Merger Sub notwithstanding such impediment.
Section 6.2 Consents and Approvals.
(a) Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper or advisable under any applicable Law or otherwise to consummate and make effective the Transactions as promptly as practicable, but in no event later than the Outside Date, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, clearances, approvals, authorizations, or orders required to be obtained or made or take other actions necessary to cause the expiration or termination of the applicable waiting periods to be obtained by Parent, Merger Sub or the Company or any of their respective Subsidiaries, or avoid any action or proceeding by any Governmental Entity (including those required under or with respect to the HSR Act and any other antitrust or competition Law or regulation), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions (the "Required Governmental Approvals"), (iii) make or cause to be made as promptly as practicable (and with respect to the HSR Act no later than ten (10) business days after the date of this Agreement) the applications or filings required to be made by Parent, Merger Sub or the Company or any of their respective Subsidiaries under or with respect to the HSR Act, any other applicable Required Governmental Approvals or any other applicable Laws in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, (iv) comply at the earliest reasonably practicable date with any request under or with respect to the HSR Act, any other Required Governmental Approvals and any such other applicable Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the U.S. Federal Trade Commission or the U.S. Department of Justice or any other Governmental Entity in connection with such applications or filings or the Transactions, and (v) coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested by, the other party in connection with, making (A) any filing under or with respect to the HSR Act, any other Required Governmental Approvals or any such other applicable Laws and (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry by any such Governmental Entity.
(b) Without limiting the generality of the undertakings pursuant to Section 6.2(a), each of the Company (in the case of clauses (ii) and (iii) below) and Parent (in all cases set forth below) agree to take or cause to be taken the following actions:
(i) the prompt use of its reasonable best efforts to avoid the entry of any permanent, preliminary or temporary injunction or other order, decree, decision, determination or
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judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions, which reasonable best efforts shall include (A) the defense through litigation on the merits of any claim asserted in any court, agency or other proceeding by any Person, including any Governmental Entity, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions, and (B) agreeing to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, any assets, rights, product lines, licenses, categories of assets or businesses or other operations, or interests therein, of the Company, Parent or any of their respective Subsidiaries (and the entry into agreements with, and submission to orders of, the relevant Governmental Entity giving effect thereto) if such action should be reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any proceeding in any forum or (y) issuance of any order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger or the other Transactions by any Governmental Entity;
(ii) the prompt use of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the Merger or the other Transactions in accordance with the terms of this Agreement unlawful, or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Merger or the other Transactions, any and all steps (including the appeal thereof, the posting of a bond or the taking of the steps contemplated by clause (i) above) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened (in writing) injunction, decision, order, judgment, determination or decree so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement; and
(iii) the prompt use of its reasonable best efforts, subject to applicable Law relating to the exchange of information, to: (A) cooperate in all respects with each other in connection with any filing, submission, or oral presentation and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (B) keep the other party and its counsel informed on a current basis of any communication received by such party from, or given by any Governmental Entity and of any communication received or given in connection with any proceeding by a private party, in each case, regarding any of the Transactions; and (C) permit the other party and its counsel to review the non-confidential portions of any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the Governmental Entity or other Person, give the other party and its counsel the opportunity to attend and participate in such meetings and conferences.
(c) The Company shall agree, if requested by Parent, to divest, hold separate or otherwise take or commit to take any action with respect to the businesses, services, or assets of the Company in furtherance of Section 6.2(a) and Section 6.2(b); provided that any such action may be conditioned upon consummation of the Merger.
(d) The Company, Merger Sub and Parent shall give any notices to third parties and use their reasonable best efforts to obtain any third-party consents or waivers necessary to consummate the Transactions; provided, however, that (i) Merger Sub and Parent shall not be required to make any payments to third parties to secure any such consent and shall not be required to modify in any material respect any contract, obligation or undertaking to which the consent may relate, and the Company shall not take any of the foregoing actions without Parent's consent and (ii) the
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Company shall not be required to make any payments to third parties to secure any such consent, unless such payment is conditioned upon, and only due subject to, consummation of the Merger.
(e) If any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Entity challenging the Transactions as in violation of any applicable Law, each of the Company, Parent and Merger Sub shall, and shall cause their respective Subsidiaries to, cooperate and use their reasonable best efforts to contest, defend and resist any such action or proceeding, including any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of the Transactions.
(f) Parent shall vote (or act by written consent with respect to) all of the shares of capital stock of Merger Sub beneficially owned by it in favor of the adoption of this Agreement in accordance with applicable Law.
Section 6.3 Publicity. So long as this Agreement is in effect, neither the Company nor Parent or
Merger Sub, nor any of their respective affiliates, shall issue or cause the publication
of any press release or other public announcement with respect to the Merger or this Agreement without the prior consent of the other party, unless such party determines, after consultation with
outside counsel, that it is required by applicable Law or by any listing agreement with or the listing rules of a national securities exchange or trading market to issue or cause the publication of
any press release or other announcement with respect to the Merger or this Agreement, in which event such party shall endeavor, on a basis reasonable under the circumstances, to provide a meaningful
opportunity to the other party to review and comment upon such press release or other announcement and shall give due consideration to all reasonable additions, deletions or changes suggested
thereto; provided that neither the Company nor Parent or Merger Sub shall be required to provide any such review or comment to the other party in
connection with the receipt and existence of a Competing Proposal and matters related thereto or a Change of Recommendation and matters related thereto; provided,
further, that each party hereto and their respective controlled affiliates may make statements that are not inconsistent with previous press releases, public disclosures or
public statements made by Parent, Merger Sub or the Company in compliance with this Section 6.3.
Section 6.4 Directors' and Officers' Insurance and Indemnification.
(a) Parent shall (to the extent required under the applicable Company Governing Documents as in effect on the date hereof), and shall cause the Surviving Corporation (and any successor thereof) to, honor and fulfill in all respects the obligations of the Company to the fullest extent permissible under applicable Law, under the Company Governing Documents in effect on the date hereof and under any indemnification or other similar agreements in effect on the date hereof (the "Indemnification Agreements") to the directors, officers and other employees of the Company covered by such Company Governing Documents or Indemnification Agreements (the "Covered Persons") arising out of or relating to actions or omissions in their capacity as such occurring at or prior to the Effective Time, including in connection with the approval of this Agreement and the Transactions.
(b) Without limiting the provisions of Section 6.4(a), for a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation (and any successor thereof) to: (i) indemnify and hold harmless each Covered Person against and from any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (A) any action or omission or alleged action or omission in such Covered Person's capacity as a director, officer or employee of the Company, or (B) this Agreement and any of the Transactions; and (ii) pay in advance of the final disposition of any such
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claim, action, suit, proceeding or investigation the expenses (including attorneys' fees) of any Covered Person upon receipt, to the extent required by the DGCL, of an undertaking by or on behalf of such Covered Person to repay such amount if it shall ultimately be determined that such Covered Person is not entitled to be indemnified. Notwithstanding anything to the contrary contained in this Section 6.4 or elsewhere in this Agreement, neither Parent nor the Surviving Corporation shall (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation of a Covered Person for which indemnification may be sought under this Section 6.4(b) unless such settlement, compromise, consent or termination includes an unconditional release of such Covered Person from all liability arising out of such claim, action, suit, proceeding or investigation.
(c) For a period of six (6) years after the Effective Time, except as required by Law, the certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of Covered Persons for periods prior to and including the Effective Time than are currently set forth in the Company Governing Documents. The Indemnification Agreements with Covered Persons that survive the Merger shall continue in full force and effect in accordance with their terms, except as required by Law.
(d) Prior to the Effective Time, the Company shall (and, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to) obtain and fully pay for "tail" insurance policies (providing only for the Side A coverage for Covered Persons where the existing policies also include Side B coverage for the Company) with a claims period of at least six (6) years from and after the Effective Time, from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to directors' and officers' liability insurance and fiduciary liability insurance (collectively, "D&O Insurance"), with benefits and levels of coverage at least as favorable as the Company's existing policies with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the Transactions or actions contemplated hereby); provided, however, that in no event shall the Company expend in the aggregate for such policies an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance. If the Company and the Surviving Corporation for any reason fail to obtain such "tail" insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, continue to maintain in effect for a period of at least six (6) years from and after the Effective Time the D&O Insurance in place as of the date of this Agreement with benefits and levels of coverage at least as favorable as provided in the Company's existing policies as of the date of this Agreement, or the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, use reasonable best efforts to purchase comparable D&O Insurance for such six-year period with benefits and levels of coverage at least as favorable as provided in the Company's existing policies as of the date of this Agreement; provided, however, that in no event shall Parent or the Surviving Corporation be required to expend in the aggregate for such policies an annual premium amount in excess of 300% of the annual premiums currently paid by the Company for such insurance; and, provided, further, that if the annual premiums of such insurance coverage exceed such amount, the Surviving Corporation shall obtain a policy with the greatest coverage available, for a cost not exceeding such amount.
(e) In the event the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then and in each such case ((i) or (ii)), proper provision shall be made so
35
that such continuing or surviving corporation or entity or transferee of such assets, as the case may be, shall assume all of the applicable obligations set forth in this Section 6.4.
(f) The Covered Persons (and their successors and heirs) are intended third party beneficiaries of this Section 6.4, and this Section 6.4 shall not be amended in a manner that is adverse to the Covered Persons (including their successors and heirs) or terminated without the consent of the Covered Persons (including their successors and heirs) affected thereby.
Section 6.5 State Takeover Laws. If any Takeover Law becomes or is deemed to become applicable
to the Company, the Merger or any other Transaction, then the Company Board of Directors shall take
all action necessary to render such Takeover Law (or the relevant provisions thereof) inapplicable to the foregoing.
Section 6.6 Obligations of Merger Sub. Parent shall take all action necessary to cause Merger
Sub and the Surviving Corporation to perform their respective obligations under this Agreement and to
consummate the Transactions, including the Merger, upon the terms and subject to the conditions set forth in this Agreement.
Section 6.7 Employee Benefits Matters.
(a) From and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, honor the Benefit Plans and compensation arrangements and agreements in accordance with their terms as in effect immediately before the Effective Time. Effective as of the Effective Time and for a period of no less than one (1) year thereafter, Parent shall provide, or shall cause the Surviving Corporation to provide, to each employee of the Company and/or its Subsidiaries who continues to be employed by the Company or the Surviving Corporation or any Company Subsidiary (the "Continuing Employees"), (i) a base salary or regular hourly wage, whichever is applicable, that is not less than the base salary or regular hourly wage provided to such Continuing Employee by the Company immediately prior to the Effective Time, (ii) cash bonus opportunity and cash incentive award compensation opportunity, in each case, at substantially comparable levels provided to such Continuing Employee by the Company immediately prior to the Effective Time, (iii) severance benefits no less favorable than those provided under the applicable plans of the Company or the Company Subsidiaries as in effect on the date hereof and set forth on Schedule 6.7(a), (iv) employee benefits that are no less favorable in the aggregate than those provided to such Continuing Employee (including their dependents) by the Company immediately prior to the Effective Time. Effective as of the Effective Time and thereafter, Parent shall provide or shall cause the Surviving Corporation to provide, that periods of employment with the Company (including any current or former affiliate of the Company or any predecessor of the Company) shall be taken into account for purposes of determining, as applicable, the eligibility for participation and vesting of any Continuing Employee under all employee benefit plans maintained by Parent or a Subsidiary of Parent for the benefit of the Continuing Employees, including vacation or other paid-time-off plans or arrangements, 401(k), pension or other retirement plans and any severance or health and welfare plans.
(b) For the plan year in which the Effective Time occurs, Parent shall, and shall cause the Surviving Corporation to (i) ensure that no eligibility waiting periods, actively-at-work requirements or pre-existing condition limitations or exclusions shall apply with respect to the Continuing Employees under the applicable health benefit plans of Parent or any Subsidiary of Parent, including the Surviving Corporation (except to the extent applicable under Benefit Plans immediately prior to the Effective Time), (ii) waive any and all evidence of insurability requirements with respect to such Continuing Employees under any such health plan to the extent such evidence of insurability requirements were not applicable to the Continuing Employees under the applicable Benefit Plans immediately prior to the Effective Time, and (iii) credit each Continuing Employee with all deductible payments, out-of-pocket or other co-payments paid by
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such Continuing Employee under the health Benefit Plans of the Company or its affiliates prior to the Closing Date during the plan year in which the Closing occurs for the purpose of determining the extent to which any such Continuing Employee has satisfied his or her deductible and whether he or she has reached the out-of-pocket maximum under any health plan of Parent or an Subsidiary of Parent (including the Surviving Corporation) for such year. The Merger shall not affect any Continuing Employee's accrual of, or right to use, in accordance with Company policy as in effect immediately prior to the Effective Time, any personal, sick, vacation or other paid-time-off accrued but unused by such Continuing Employee immediately prior to the Effective Time.
(c) As of and after the Effective Time, Parent shall and hereby does, and shall cause the Surviving Corporation and any successor thereto to: (i) assume the Company's and the Company Subsidiaries' obligations under the Benefit Plans, including all vested or accrued benefit obligations to, and contractual rights of, current and former employees of the Company and its Subsidiaries (including any such obligations or rights arising in connection with the Transactions), (ii) honor, fulfill and discharge such obligations in accordance with their terms, and (iii) to the extent not paid prior to the Closing, pay, no later than the deadline set forth in the applicable bonus plan, to all employees of the Company and the Company Subsidiaries who are so employed as of the Closing bonuses under the Company's bonus plans in effect for the fiscal year ending on June 30, 2017, at no less than the actual amount of the bonus earned by and payable to each such employee pursuant to the applicable terms of such bonus plan. Parent hereby acknowledges that a "change in control" or "change of control" (or the equivalent) will occur upon the Effective Time for purposes of all Benefit Plans.
(d) Until the end of the calendar year in which the Effective Time occurs, Parent shall cause the Surviving Corporation and any successor thereto to continue to maintain the short-term disability and long-term disability benefit plans, policies, and programs maintained by the Company as of immediately prior to the Closing, at levels of coverage and benefits and subject to terms and conditions that are no less favorable for any individual than the levels of coverage and benefits and the terms and conditions in effect as of immediately prior to the Closing.
(e) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any affiliate of Parent and the Continuing Employee, including any severance, benefit or other applicable plan or program covering such Continuing Employee, and subject to Parent's obligations to provide severance pursuant to Section 6.7(a). Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.7 shall (i) be deemed or construed to establish or to be an amendment or other modification of any Benefit Plan or any other benefit or compensation plan, policy, program, agreement, contract or arrangement at any time sponsored or maintained by Parent, the Surviving Corporation, or any of their affiliates, (ii) except as provided in Section 6.7(d), limit the ability of Parent, the Surviving Corporation, or any of their affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement, policy, contract, agreement or arrangement at any time assumed, established, sponsored, contributed to or maintained by any of them or (iii) create any third party beneficiary rights or any other rights in any current or former service provider of the Company or any of its affiliates (or any beneficiaries or dependents thereof) or in any other Person not a party to this Agreement.
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Section 6.8 Rule 16b-3. Prior to the Effective Time, the Company shall take such steps as
may be reasonably necessary or advisable hereto to cause dispositions of Company equity
securities (including derivative securities) pursuant to the Transactions by each individual who is a director or officer of the Company to be exempt under Rule 16b-3 promulgated under the
Exchange Act.
Section 6.9 Control of Operations. Without in any way limiting any party's rights or obligations
under this Agreement, the parties understand and agree that (a) nothing contained in this
Agreement shall give Parent, directly or indirectly, the right to control or direct the Company's operations prior to the Effective Time and (b) prior to the Effective Time, the Company shall
exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations.
Section 6.10 Transaction Litigation. The Company shall promptly (and in any event within two
(2) business days) advise Parent in writing of any Transaction Litigation and shall keep Parent
informed on a reasonably prompt basis regarding any such Transaction Litigation. The Company shall give Parent the opportunity to (a) participate in the defense, prosecution, settlement or
compromise of any Transaction Litigation, and (b) consult with counsel to the Company regarding the defense, prosecution, settlement or compromise with respect to any such Transaction
Litigation. For purposes of this Section 6.10, "participate" means that Parent will be kept reasonably apprised of proposed strategy and other
significant decisions with respect to the Transaction Litigation (to the extent that the attorney-client privilege between the Company and its counsel is not undermined or otherwise adversely
affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith; provided that the Company shall not settle or
compromise or agree to settle or compromise any Transaction Litigation without Parent's prior written
consent (which consent shall not be unreasonably withheld, conditioned or delayed). Following the Effective Time, the Covered Persons may continue to retain counsel retained prior to the Effective
Time to defend any Transaction Litigation; provided, however, that in no event shall Parent be required
to retain more than one pre-Effective Time counsel for all the Covered Persons as a group, unless required by conflicts of interest between or among the Covered Persons.
Section 6.11 Deregistration. Prior to the Effective Time, the Company will cooperate with Parent
and Merger Sub in taking, or causing to be taken, all actions necessary to terminate the
registration of the Common Stock under the Exchange Act; provided that such termination shall not be effective until after the Effective Time.
Section 6.12 Director Resignations. The Company shall use commercially reasonable efforts to
cause to be delivered to Parent resignations executed by each director of the Company and the Company
Subsidiaries in office immediately prior to the Effective Time (other than with respect to any directors identified by Parent in writing to the Company).
Section 6.14 Financing Cooperation and Indemnification.
(a) Subject to Section 6.14(d), prior to the Effective Time, the Company shall, and shall cause each of the Company Subsidiaries to, and shall use its reasonable best efforts to cause its and their Representatives to, provide to Parent such customary and necessary cooperation as may be reasonably requested by Parent or Merger Sub to assist them in arranging the debt financing (if any) to be obtained by Parent, Merger Sub or their respective affiliates in connection with the Merger (the "Debt Financing" and, together with the Equity Financing, the "Financing"), which cooperation shall include:
(i) causing its management team, with appropriate seniority and expertise, including its senior executive officers, and external auditors to assist in preparation for and to participate in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies;
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(ii) (A) assisting with the timely preparation of customary rating agency presentations, road show materials, bank information memoranda, credit agreements, prospectuses and bank syndication materials, offering documents, private placement memoranda and similar documents required in connection with the Debt Financing, including the marketing and syndication thereof; provided that any such bank information memoranda, prospectuses and bank syndication materials, offering documents, private placement memoranda and similar documents shall contain disclosure and pro forma financial statements reflecting the Surviving Corporation and/or its Subsidiaries as the obligor and (B) providing customary authorization letters (including customary representations with respect to accuracy of information) to the Financing Sources authorizing the distribution of information to prospective lenders and containing a representation that the "public-side" versions of marketing materials, if any, do not include material, non-public information regarding the Company or the Company Subsidiaries, or their respective securities;
(iii) furnishing Parent and its Financing Sources as promptly as practicable with (A) all financial information regarding the Company or any of the Company Subsidiaries, as may be reasonably requested to consummate the Debt Financing and satisfy all conditions to funding thereunder, such financial information to include financial statements prepared in accordance with GAAP, including (1) audited consolidated balance sheets and related statements of income, stockholders' equity and cash flows and related notes thereto of the Company and the Company Subsidiaries, for the three (3) fiscal years most recently ended at least 90 days prior to the Effective Time and unaudited consolidated balance sheets and related statements of income, cash flows and related notes thereto of the Company and the Company Subsidiaries, for each subsequent fiscal quarter ended at least forty-five (45) days prior to the Effective Time; provided that the filing by the Company of the required financial statements specified in clause (1) in its Annual Report on Form 10-K or its Quarterly Report on Form 10-Q, as applicable, within the time periods set forth above, will be deemed to satisfy the foregoing requirements with respect to the Company and the Company Subsidiaries for all purposes of this Agreement and (2) customary pro forma financial statements and information, projections, audit reports, a draft of a customary comfort letter with respect to such financial information by independent auditors of the Company and the Company Subsidiaries which such auditors are prepared to issue upon satisfactory completion of customary procedures (and all information necessary to assist such auditors in delivering such comfort) and other information and data regarding the Company or any of the Company Subsidiaries of the type and form required by Regulation S-X and Regulation S-K under the Securities Act for offerings of debt securities on a registration statement on Form S-1 under the Securities Act and of the type and form customarily included in customary offering documents used to syndicate credit facilities of the type to be included in the Debt Financing or in customary offering documents used in private placements of debt securities under Rule 144A promulgated under the Securities Act; (B) all other pertinent and customary information (other than financial information, which is covered by clause (A) above) regarding the Company and the Company Subsidiaries necessary to satisfy the conditions set forth in any debt commitment letter entered into in connection with the Debt Financing; provided, however, that delivery of the customary information that would be necessary to satisfy the conditions set forth in the most recent draft commitment letters provided to the Company by Parent prior to the execution of this Agreement, or in debt commitment letters that are subsequently provided to the Company by Parent that include customary information requests, will be deemed to satisfy the foregoing requirements for all purposes of this Agreement; and (C) the authorization letters described in Section 6.14(a)(ii)(B) (the information described in clauses (A) through (C) above, collectively, the "Required Information");
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(iv) assisting Parent and Merger Sub in obtaining corporate and facilities ratings in connection with the Debt Financing;
(v) reasonably cooperating to permit the prospective lenders involved in the Debt Financing to evaluate the Company and the Company Subsidiaries' current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and otherwise reasonably facilitating the grant of a security interest in collateral and providing related lender protections;
(vi) furnishing Parent and its Financing Sources promptly, and in any event at least ten (10) days prior to the Closing Date, with all documentation and other information required by Governmental Entities with respect to the Debt Financing under applicable "know your customer" and anti-money laundering rules and regulations, including the PATRIOT Act;
(vii) obtaining a customary solvency certificate of the chief financial officer of the Company to the extent required by the Financing Sources;
(viii) assisting in the preparation of, and executing and delivering on the Closing Date, one or more credit agreements, indentures, purchase agreements, currency or interest hedging agreements and other definitive documentation and related deliverables (including any schedules or exhibits thereto) relating to the Debt Financing and delivering customary in-house legal opinions (regarding litigation matters) back-up for legal opinions of counsel to Parent or the Merger Sub to be delivered to the lenders providing Debt Financing at the Closing;
(ix) using reasonable best efforts to permit unrestricted cash and cash equivalents, if any, of the Company and any Company Subsidiary that can, without violating Laws or incurring Taxes, reasonably be made available to pay a portion of the Merger Consideration, any other payments contemplated by this Agreement or the Transactions (and, for the avoidance of doubt, neither the Company nor any Company Subsidiary has, nor shall be deemed to have, any obligation to have any unrestricted cash or cash equivalents available on or prior to the Closing or at any other time; provided that the Company shall continue to be obligated to comply with the provisions of Section 5.1); and
(x) taking all corporate actions, subject to and only effective upon the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 6.14): (i) nothing in this Agreement shall require any such cooperation to the extent that it would (A) require the Company or any of the Company Subsidiaries or their respective Representatives, as applicable, to pay any commitment or other fees or reimburse any Expenses that are not contingent upon the Closing or to incur any liability or give any indemnities that are not contingent upon the Closing, (B) unreasonably interfere with the ongoing business or operations of the Company and the Company's Subsidiaries, (C) require the Company or any of the Company Subsidiaries to take any action that will conflict with or violate (1) the Company Governing Documents or the Company Material Contracts or result in the contravention of, or that would reasonably be expected to result in a violation or breach of, or default under, any contract to which the Company or any of the Company Subsidiaries is a party, in each case that are not contingent upon the Closing or (2) any applicable Laws, (D) require the Company or any of the Company Subsidiaries to enter into or approve any financing or purchase agreement for the Financing prior to the Closing, or (E) result in the Company, any Company Subsidiary or any
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officer or director of the Company or any Company Subsidiary incurring any liability with respect to any matters relating to the Financing prior to the Closing (other than with respect to authorization letters referred to in Section 6.14(a)(ii)); (ii) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any Expenses) of the Company or any of the Company Subsidiaries or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing (other than a customary authorization letter) shall be effective until (or that is not contingent upon) the Closing; and (iii) none of the Company or any of the Company Subsidiaries or any of their respective Representatives shall have any liability or incur any losses, damages or penalties with respect of the Debt Financing or any marketing materials, presentations or disclosure documents in connection therewith in the event the Closing does not occur, except in the case of this clause (iii), to the extent such liability, losses, damages or penalties arise or result from the actual and intentional fraud of, or a Willful Breach of this Agreement by, the Company, the Company Subsidiaries or their respective Representatives.
(c) In the event that this Agreement is terminated pursuant to any of the events in Section 8.1, Parent shall promptly, upon request by the Company, reimburse the Company for all of its documented reasonable out-of-pocket costs and Expenses (including reasonable attorneys' fees) incurred by the Company, the Company Subsidiaries and their respective Representatives in connection with any cooperation contemplated by this Section 6.14 (except to the extent such costs or Expenses arise or result from the actual and intentional fraud of or a Willful Breach of this Agreement by, the Company, the Company Subsidiaries or their respective Representatives).
(d) Merger Sub and Parent shall, in the event the Closing does not occur (for any reason), on a joint and several basis, indemnify and hold harmless the Company, the Company Subsidiaries, their affiliates and its and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, Expenses, interest, awards, judgments and penalties suffered or incurred by any of them in connection with the Financing, the arrangement of the Financing, the actions taken by the Company under Section 6.15 and/or the provision of information utilized in connection therewith to the fullest extent permitted by applicable Law, except to the extent such liabilities, losses, damages, claims, costs, Expenses, interest, awards, judgments and penalties arise or result from the actual and intentional fraud of, or a Willful Breach of this Agreement by, the Company, the Company Subsidiaries and their respective Representatives.
(e) The Company hereby consents to the use of its and the Company Subsidiaries' trademarks, service marks or logos in connection with the Financing; provided that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries or any of their respective products, services, offerings or Intellectual Property Rights.
(f) The Company shall and shall cause the Company Subsidiaries to supplement the Required Information on a current basis to the extent that any such information, to the knowledge of the Company, contains any material misstatement of fact or omits to state a material fact necessary to make the statements made in such Required Information, in light of the circumstances in which they were made, not materially misleading.
Section 6.15 Credit Agreement.
The Company shall use its reasonable best efforts to deliver to Parent, no later than two (2) business days prior to the Effective Time, a copy of an executed payoff letter in
customary form with respect to the Credit Agreement, which shall be effective immediately prior to, and subject to occurrence of, the Closing.
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ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 7.1 Conditions to Each Party's Obligations to Effect the Merger. The respective
obligations of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following
conditions, any and all of which may be waived in whole or in part by Parent, Merger Sub and the Company, as the case may be, to the extent permitted by applicable Law:
(a) Stockholder Approval. This Agreement shall have been adopted by the Requisite Stockholder Approval.
(b) Statutes; Court Orders. No statute, rule or regulation shall have been enacted or promulgated by any Governmental Entity of competent jurisdiction which prohibits or makes illegal the consummation of the Merger, and there shall be no order or injunction of a court of competent jurisdiction in effect preventing the consummation of the Merger.
(c) HSR Act. Any applicable waiting or review periods (or extensions thereof) relating to the Merger under the HSR Act shall have expired or been terminated and any approvals, clearances or waivers required pursuant thereto shall have been obtained.
Section 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and
Merger Sub to effect the Merger are also subject to the satisfaction (or waiver in writing by Parent) on or prior to the Closing
Date of each of the following additional conditions:
(a) Representations and Warranties. The representations and warranties of the Company set forth in (i) Section 3.8(b) shall be true and correct as of the date of this Agreement and as of the Closing as though made on and as of the Closing, (ii) Section 3.2(a), Section 3.2(c) and Section 3.2(d) shall be true and correct as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except for de minimis inaccuracies, (iii) Section 3.1(a), Section 3.3, Section 3.23 and Section 3.24 that are (A) qualified as to materiality or Company Material Adverse Effect shall be true and correct in all respects and (B) not qualified as to materiality or Company Material Adverse Effect shall be true and correct in all material respects, in each case ((A) and (B)) as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), and (iv) the other provisions of Article III shall be true and correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct as of such date), except where any failures of any such representations and warranties to be true and correct has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Performance of Obligations of the Company. The Company shall have performed or complied in all material respects with all obligations required to be performed or complied with by it under this Agreement at or prior to the Effective Time.
(c) No Company Material Adverse Effect. Since the date of this Agreement, no Effects shall have occurred that have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
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(d) Company Officer's Certificate. Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer or the Chief Financial Officer of the Company to the effect that the conditions in Section 7.2(a), Section 7.2(b) and Section 7.2(c) have been satisfied.
Section 7.3 Conditions to Obligations of the Company. The obligations of the Company to effect
the Merger are also subject to the satisfaction (or waiver in writing by the Company) on or prior to the Closing Date of
each of the following additional conditions:
(a) Representations and Warranties. The representations and warranties of Parent and Merger Sub set forth in (i) Section 4.1, Section 4.2 and Section 4.9 that are (A) qualified as to materiality or "material adverse effect" shall be true and correct in all respects and (B) not qualified as to materiality or "material adverse effect" shall be true and correct in all material respects, in each case ((A) and (B)) as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct as of such date) and (ii) the other provisions of Article IV shall be true and correct in all respects (without giving effect to any qualification as to materiality contained therein) as of the date of this Agreement and as of the Closing as though made on and as of the Closing (except that representations and warranties that by their terms speak specifically as of the date of this Agreement or another date shall be true and correct in all respects as of such date) except where any failures of any such representations and warranties to be true and correct would not reasonably be expected, individually or in the aggregate, to prevent, materially impede or materially delay the consummation of the Transactions.
(b) Performance of Obligations of Parent and Merger Sub. Parent and Merger Sub shall have performed or complied in all material respects with all obligations required to be performed or complied with by them under this Agreement at or prior to the Effective Time.
(c) Parent Officer's Certificate. The Company shall have received a certificate signed on behalf of Parent by the Chief Executive Officer or the Chief Financial Officer of Parent to the effect that the conditions in Section 7.3(a) and Section 7.3(b) have been satisfied.
Section 8.1 Termination. This Agreement may be terminated and the Merger and the other
Transactions may be abandoned (except as otherwise provided below, whether before or after receipt
of the Requisite Stockholder Approval, if applicable) only as follows:
(a) by mutual written agreement of Parent and the Company;
(b) by either Parent or the Company, if the Effective Time shall not have occurred by 11:59 p.m. Eastern time on the Outside Date; provided, however, that (i) the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to any party whose breach of any representation, warranty, covenant or agreement set forth in this Agreement has been the primary cause of the Effective Time not occurring prior to the Outside Date and (ii) Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(b) during the pendency of any proceeding brought by the Company for specific performance of this Agreement;
(c) by either Parent or the Company, if a Governmental Entity of competent jurisdiction, that is within a jurisdiction that is material to the business and operations of the Company, shall have issued a final, non-appealable order, decree or ruling in each case permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger or the other Transactions; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall
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not be available to any party whose breach of any representation, warranty, covenant or agreement set forth in this Agreement has been the primary cause of the issuance of such order, decree or ruling;
(d) by either Parent or the Company, if the Requisite Stockholder Approval in favor of the adoption of this Agreement shall not have been obtained at the Special Meeting or at any adjournment or postponement thereof, in each case at which a vote on such adoption was taken; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to the Company if the Company's breach of any representation, warranty, covenant or agreement set forth in this Agreement has been the primary cause of the failure to obtain the Requisite Stockholder Approval at the Special Meeting or at any adjournment or postponement thereof;
(e) by Parent, prior to the Effective Time, if there has been a breach by the Company of any representation, warranty, covenant or agreement of the Company set forth in this Agreement, which breach would result in any of the conditions set forth in Section 7.1 and Section 7.2 not being satisfied and is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) calendar days after the receipt of notice thereof from Parent or (ii) three (3) business days before the Outside Date; provided, however, that this Agreement may not be terminated pursuant to this Section 8.1(e) if Parent or Merger Sub are then in material breach of any representation, warranty, covenant or agreement of Parent or Merger Sub set forth in this Agreement that would cause a condition set forth in Section 7.1 or Section 7.3 not to be satisfied;
(f) by Parent, prior to the adoption of this Agreement by the Requisite Stockholder Approval, if (i) a Change of Recommendation has occurred or (ii) the Company shall have otherwise materially breached its obligations under Section 5.2; provided, however, that the exercise of such termination right by Parent pursuant to Section 8.1(f)(i) must occur within ten (10) business days following the date on which such right to terminate first arose and the exercise of such termination right by Parent pursuant to Section 8.1(f)(ii) must occur within ten (10) business days following the date on which Parent first becomes aware of such material breach of Section 5.2);
(g) by the Company, prior to the Effective Time, if there has been a breach by Parent or Merger Sub of any representation, warranty, covenant or agreement of Parent or Merger Sub set forth in this Agreement, which breach would result in any of the conditions set forth in Section 7.1 and Section 7.3 not being satisfied and is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty (30) calendar days after the receipt of notice thereof from the Company or (ii) three (3) business days before the Outside Date); provided, however, that this Agreement may not be terminated pursuant to this Section 8.1(g) if the Company is then in material breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement that would cause a condition set forth in Section 7.1 or Section 7.2 not to be satisfied; or
(h) by the Company, if, prior to the adoption of this Agreement by the Requisite Stockholder Approval, (A) the Company Board of Directors (or any committee thereof) has received a Superior Proposal, (B) the Company Board of Directors (or any committee thereof) has determined in good faith (after consulting with its outside legal counsel and financial advisors) that the failure to accept such Superior Proposal would be inconsistent with the fiduciary duties of the members of the Company Board of Directors (or any committee thereof) to the Company's stockholders under applicable Law, (C) the Company has complied in all material respects with Section 5.2, (D) simultaneously with such termination, the Company enters into a definitive agreement to provide for such Superior Proposal, and (E) concurrently with such termination, the Company pays to Parent the Company Termination Fee payable pursuant to Section 8.3(a)(ii).
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Section 8.2 Effect of Termination. In the event of the termination of this Agreement as provided
in Section 8.1, written notice thereof shall
forthwith be given to the other party or parties specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void and there shall be
no liability hereunder on the part of Parent, Merger Sub, any Parent Related Party, the Company or any Company Related Party, except that the Confidentiality Agreement, Section 6.3, Section 6.14(c), Section 6.14(d), this Section 8.2, Section 8.3, and Section 9.3 through Section 9.13 shall survive such termination; provided that nothing herein shall relieve any party
from liability for its actual and intentional fraud, or for Willful Breach of its covenants or agreements set forth in this Agreement prior to such termination.
Section 8.3 Termination Fee; Limitation of Liability.
(a) The Company shall be required to pay to Parent, or its designee, the Company Termination Fee in any of the following events (provided that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion):
(i) this Agreement is terminated by Parent pursuant to Section 8.1(f);
(ii) this Agreement is terminated by the Company pursuant to Section 8.1(h); or
(iii) (A) this Agreement is terminated by (1) Parent or the Company pursuant to Section 8.1(b) (but in the case of a termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to the proviso to Section 8.1(b)), or (2) Parent or the Company pursuant to Section 8.1(d), or (3) Parent pursuant to Section 8.1(e); (B) any Person shall have publicly disclosed a bona fide Competing Proposal after the date hereof and prior to such termination and such Competing Proposal has not been publicly withdrawn prior to such termination; and (C) during the period commencing as of immediately following entry into this Agreement and ending twelve (12) months following such termination, the Company shall have entered into a definitive agreement providing for a Competing Proposal (which Competing Proposal is subsequently consummated, whether during or following such 12-month period) or consummates a transaction contemplated by such Competing Proposal; provided that for purposes of this Section 8.3(a)(iii), each reference to "15%" in the definition of "Competing Proposal" shall be deemed to be a reference to "50%".
(b) Payment of the Company Termination Fee shall be made to the account or accounts designated by Parent by wire transfer of immediately available funds (i) in the case of Section 8.3(a)(i), within three (3) business days of the date of such termination, (ii) in the case of Section 8.3(a)(ii), on the date the Company enters into a definitive agreement providing for such Superior Proposal, and (iii) in the case of Section 8.3(a)(iii), concurrently with the consummation of the transaction contemplated by such Competing Proposal.
(c) Each of the parties acknowledges that the agreements contained in this Section 8.3 are an integral part of the Transactions and that, without these agreements, the parties would not enter into this Agreement. Accordingly, if the Company fails to timely pay the amount due pursuant to this Section 8.3 and, in order to obtain such payment, Parent commences a Legal Proceeding that results in a final non-appealable judgment in its favor, the Company shall pay to Parent its reasonable and documented out-of-pocket costs and Expenses (including attorneys' fees and expenses) in connection with such Legal Proceeding, together with interest on the amount of such payment from the date such payment was required to be made under this Section 8.3 until the actual date of payment at a rate per annum equal to the prime interest rate published in The Wall Street Journal on the date such interest begins accruing.
(d) The parties further acknowledge and agree that the Company Termination Fee is not a penalty, but rather liquidated damages in a reasonable amount that will compensate Parent and
45
Merger Sub in the circumstances in which the Company Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone by Parent and Merger Sub while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary in this Agreement, under circumstances where the Company Termination Fee is due and payable, in no event shall Parent's right to receive monetary damages pursuant to this Section 8.3 be greater than the Company Termination Fee (together with any amounts, if any, due under Section 8.3(c)). In the event Parent receives the Company Termination Fee pursuant to Section 8.3(b), such payment shall be the sole and exclusive remedy of Parent and its Subsidiaries, the Equity Investor, the Financing Sources or any other financing source of Parent, and any of their respective former, current or future officers, directors, partners, stockholders, equityholders, controlling persons, general or limited partners, managers, members, affiliates, agents or other Representatives (each, a "Parent Related Party") for the loss suffered as a result of the failure of the Merger to be consummated, and under circumstances where such Company Termination Fee is due, upon payment of such amount, none of the Company, any of its Subsidiaries or the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, under no circumstances will the collective monetary damages payable by any Parent Related Party for breaches under this Agreement, the Guarantee or the Equity Commitment Letter exceed an amount equal to $38,760,000 in the aggregate for all such breaches, plus any amounts payable by Parent pursuant to the Company's rights to be indemnified or reimbursed by Parent in accordance with Section 6.14(c), Section 6.14(d) , and Section 9.3 (collectively, the "Parent Liability Limitation"). In no event will any of the Company and the Company Subsidiaries and any of their respective former, current or future officers, directors, partners, stockholders, managers, members, affiliates, agents or other Representatives (each, a "Company Related Party") seek or obtain, nor will any Person be entitled to seek or obtain, any monetary recovery or award in excess of the Parent Liability Limitation against the Parent Related Parties and in no event will the Company or any of its Subsidiaries be entitled to seek or obtain any monetary damages of any kind in excess of the Parent Liability Limitation against the Parent Related Parties for, or with respect to, this Agreement, the Equity Commitment Letter, the Guarantee or the transactions contemplated hereby and thereby (including for any breach by Guarantor, Parent or Merger Sub), the termination of this Agreement, the failure to consummate the Merger or any claims or actions under applicable Law arising out of any such breach, termination or failure. Other than Guarantor's obligations under the Guarantee and the Equity Commitment Letter and other than the obligations of Parent and Merger Sub to the extent expressly provided in this Agreement, in no event will any Parent Related Party or any other Person other than Guarantor, Parent and Merger Sub have any liability for monetary damages to the Company or any other Person relating to or arising out of this Agreement or the Transactions.
(f) Notwithstanding the foregoing, nothing in Section 8.3(d) or Section 8.3(e) shall limit the right of a party to bring or maintain any Legal Proceeding (i) for injunction, specific performance or other equitable relief to the extent provided in Section 9.13, unless and until this Agreement has been terminated and the Company Termination Fee has been paid to Parent in accordance with Section 8.3(b) and (ii) against the other parties or their affiliates arising out of or in connection with a breach of the Confidentiality Agreement; provided, however, that while the Company may pursue an injunction, specific performance or other equitable relief to the extent provided in Section 9.13 and monetary damages, under no circumstances shall the Company be permitted or entitled to receive both a grant of an injunction, specific performance or other equitable relief to pursuant to Section 9.13 and monetary damages.
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Section 9.1 Amendment and Modification; Waiver.
(a) Subject to applicable Law and except as otherwise provided in this Agreement, this Agreement may be amended, modified and supplemented, whether before or after receipt of the Requisite Stockholder Approval, if applicable, by written agreement of the parties hereto (by action taken by their respective boards of directors); provided, however, that after the adoption of this Agreement by the stockholders of the Company, no amendment shall be made which by Law requires further approval by such stockholders without obtaining such further approval. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto; provided, however, that solely if there is any Debt Financing, Section 8.3(d) , Section 8.3(e), Section 9.1, Section 9.8, Section 9.10, Section 9.11, Section 9.12 and Section 9.13(d) may not be modified (including extending the time for performance), waived or terminated in a manner that is adverse in any material respect to the Financing Sources without the prior written consent of such Financing Sources (which consent shall not be unreasonably withheld, conditioned or delayed).
(b) At any time and from time to time prior to the Effective Time, any party or parties hereto may, to the extent legally allowed and except as otherwise set forth herein, (i) extend the time for the performance of any of the obligations or other acts of the other party or parties, as applicable, (ii) waive any inaccuracies in the representations and warranties made to such party or parties contained herein or in any document delivered pursuant hereto, and (iii) waive compliance with any of the agreements or conditions for the benefit of such party or parties contained herein. Any agreement on the part of a party or parties to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party or parties, as applicable. Any delay in exercising any right under this Agreement shall not constitute a waiver of such right, nor shall any single or partial exercise thereof preclude any other or further exercise of any other right or remedy hereunder.
Section 9.2 Non-Survival of Representations and Warranties. None of the representations and
warranties in this Agreement or in any Schedule, instrument or other document delivered pursuant to this Agreement shall survive
the Effective Time. This Section 9.2 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after
the Effective Time.
Section 9.3 Expenses. All Expenses incurred in connection with this Agreement and the
Transactions shall be paid by the party incurring such Expenses, except that Parent shall pay,
whether or not the Merger or any other transaction is consummated, all Expenses incurred in connection with (a) any filing with antitrust authorities or in connection with any Required
Governmental Approvals and (b) the Paying Agent. Notwithstanding anything to the contrary contained herein, Parent shall pay the amount of any documentary, sales, use, real property transfer,
transfer, stamp, recording and other similar Taxes together with any interest thereon, penalties, fines, costs or fees with respect thereto incurred in connection with this Agreement and the
Transactions (other than as set forth in Section 2.2(b)).
Section 9.4 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally (notice deemed given upon receipt),
telecopied or by facsimile or e-mail (notice deemed given upon confirmation of receipt) or sent by a nationally recognized overnight courier service, such as Federal Express (notice deemed given upon
receipt of
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proof of delivery), to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
| if to Parent or Merger Sub, to: | |||||
Bolt Infrastructure Parent, Inc. c/o New Mountain Capital, L.L.C. 787 7th Avenue New York, New York 10019 |
|||||
| Attention: | Mat Holt Joe Delgado Lars Johansson |
||||
| Facsimile: | (212) 582-2277 | ||||
| E-mail: | mholt@newmountaincapital.com jdelgado@newmountaincapital.com LJohansson@newmountaincapital.com |
||||
with a copy to (which shall not constitute notice): |
|||||
Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10022 |
|||||
| Attention: | Joshua Kogan, P.C. David Feirstein, P.C. |
||||
| Facsimile: | (212) 446-6460 | ||||
| Email: | joshua.kogan@kirkland.com david.feirstein@kirkland.com |
||||
and |
|||||
if to the Company, to: |
|||||
TRC Companies, Inc. 21 Griffin Road North Windsor, Connecticut 06095 |
|||||
| Attention: | Martin H. Dodd, Senior Vice President, General Counsel and Secretary | ||||
| Facsimile: | (860) 298-6323 | ||||
| Email: | mdodd@trcsolutions.com | ||||
with a copy to (which shall not constitute notice): |
|||||
Covington & Burling LLP The New York Times Building 620 Eighth Avenue New York, NY 10018 |
|||||
| Attention: | Andrew W. Ment | ||||
| Facsimile: | (646) 441-9012 | ||||
| Email: | ament@cov.com | ||||
(a) As used in this Agreement, the following terms have the respective meanings set forth below:
"Acceptable Confidentiality Agreement" means a confidentiality agreement that contains terms that are no less favorable in the aggregate to the Company than those contained in the
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Confidentiality Agreement; provided, however, that an Acceptable Confidentiality Agreement may exclude standstill provisions, or may contain standstill provisions that are less favorable to the Company, in each case if the Company Board of Directors determines in good faith that the failure to do so would be inconsistent with the proper exercise of its fiduciary duties; provided, further, that in the event that such Acceptable Confidentiality Agreement contains no standstill provisions, or contains standstill provisions that are less favorable to the Company than those of the Confidentiality Agreement, then the Confidentiality Agreement shall be deemed to be automatically amended and modified to contain standstill provisions that are no more favorable to the Company than those contained in such Acceptable Confidentiality Agreement.
"affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "controlling," "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through ownership of voting securities, by contract or otherwise.
"Anti-Bribery Laws" means any Laws prohibiting corruption and bribery, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act.
"business days" has the meaning set forth in Rule 14d-1(g)(3) of the Exchange Act.
"Code" means the Internal Revenue Code of 1986.
"Company Bylaws" means the bylaws of the Company, as amended.
"Company Charter" means the certificate of incorporation of the Company filed with the Secretary of State of the State of Delaware, as amended.
"Company Equity Plan" means each of the (i) "TRC Companies, Inc. Restated Stock Option Plan" (originally called the "Stock Option Plan for Key Employees," as adopted by the Company Board of Directors on August 29, 1979) and (ii) "Amended and Restated 2007 Equity Incentive Plan—TRC Companies, Inc."
"Company Governing Documents" means the Company Bylaws and the Company Charter.
"Company Intellectual Property" means Owned Company Intellectual Property and Licensed Company Intellectual Property.
"Company Material Adverse Effect" means any Effect that, individually or in the aggregate, (i) has a material adverse effect on the financial condition, business, properties, assets, liabilities or results of operations (financial or otherwise) of the Company and the Company Subsidiaries, taken as a whole; provided, however, that, for purposes of this clause (i), no Effects resulting from the following shall be deemed to constitute a Company Material Adverse Effect or shall be taken into account when determining whether a Company Material Adverse Effect has occurred or is reasonably likely to exist: (A) conditions (or changes therein) in any industry or industries in which the Company and the Company Subsidiaries operate, (B) general legal, Tax, economic, political and/or regulatory conditions (or, in each case following the date hereof, changes therein), including any changes effecting financial, credit or capital market conditions, (C) any generally applicable change in Law or GAAP or interpretation of any of the foregoing, (D) any adverse Effect arising directly from or otherwise directly relating to any action taken by the Company at the written direction or written request of Parent or any action specifically required to be taken by the Company, or the failure of the Company to take any action, that the Company is specifically prohibited by the terms of the Agreement from taking, (E) any Effect attributable to the negotiation, execution announcement, pendency or performance of this Agreement and the Transactions (including the Merger), including any adverse change in customer, employee, supplier,
49
financing source, licensor, licensee, sub-licensee, stockholder, joint venture partner or similar relationship, including as a result of the identity of Parent (except that this subclause (E) will not be taken into account for purposes of Section 3.5), (F) changes in the Common Stock price or the trading volume of the Common Stock, in and of itself (it being understood that the facts or occurrences giving rise or contributing to such changes that are not otherwise excluded from the definition of a "Company Material Adverse Effect" may be taken into account), (G) any failure by the Company to meet any published analyst estimates or expectations of the Company's revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company to meet its internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (it being understood that the facts or occurrences giving rise or contributing to such failure that are not otherwise excluded from the definition of a "Company Material Adverse Effect" may be taken into account) and (H) conditions arising out of acts of terrorism or sabotage, war (whether or not declared), the commencement, continuation or escalation of a war, acts of armed hostility, weather conditions or other force majeure events, including any material worsening of such conditions threatened or existing as of the date of this Agreement; provided, further, that any Effect referred to in the foregoing clauses (A), (B), (C) and (H) may be taken into account in determining whether there is, or would be reasonably expected to be, a Company Material Adverse Effect to the extent such Effect materially disproportionately affects the Company and the Company Subsidiaries relative to other participants in the industries in which the Company and the Company Subsidiaries operate; or (ii) prevents, would materially impede or materially delay the ability of the Company to consummate the Transactions on or prior to the Outside Date; provided, however, that, for purposes of this clause (ii), no adverse Effect arising directly from or otherwise directly relating to any action taken by the Company at the written direction or written request of Parent or any action specifically required to be taken by the Company, or the failure of the Company to take any action that the Company is specifically prohibited, by the terms of the Agreement from taking, shall be deemed to constitute a Company Material Adverse Effect or shall be taken into account when determining whether a Company Material Adverse Effect has occurred or is reasonably likely to exist.
"Company Termination Fee" means an amount in cash equal to $19,380,000.
"Competing Proposal" means, other than the Merger, any inquiry, proposal or offer made by a Person or group (other than an inquiry, proposal or offer by Parent or any of its Subsidiaries) at any time which is structured to permit such Person or group to acquire or purchase, directly or indirectly, in any single or multi-step transaction or series of related transactions, at least (i) 15% of the (A) consolidated assets (including capital stock of the Company Subsidiaries), revenues or earnings of the Company and Company Subsidiaries taken as a whole or (B) total voting power of the capital stock of Company or (ii) 15% of the assets, revenues or earnings of the Company and the Company Subsidiaries taken as a whole, through any merger, consolidation, other business combination, sale of shares of capital stock, sale of assets, tender offer, exchange offer, reorganization, recapitalization, liquidation or dissolution of the Company or any Company Subsidiary.
50
"Compliant" means, with respect to the Required Information, that (i) such Required Information does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make such Required Information not misleading, (ii) such Required Information is, and remains throughout the Marketing Period, compliant in all material respects with all requirements of Regulation S-K and Regulation S-X under the Securities Act for offerings of debt securities on a registration statement on Form S-1 (other than such provisions for which compliance is not customary in a Rule 144A offering of high-yield debt securities), (iii) the Company's auditors have neither withdrawn nor advised the Company in writing that they intend to withdraw, any audit opinion with respect to any financial statements contained in the Required Information, and (iv) the financial statements and other financial information included in such Required Information are, and remain throughout the Marketing Period, sufficient to permit (A) a registration statement on Form S-1 using such financial statements and financial information to be declared effective by the SEC on the second (2nd) business day immediately after the last day of the Marketing Period and (B) the Financing Sources (including underwriters, placement agents or initial purchasers) to receive customary comfort letters from the Company's independent auditors on the financial statements and financial information contained in offering documents required to consummate any offering of debt securities on the second (2nd) business day immediately after the last business day of the Marketing Period.
"Confidentiality Agreement" means that certain letter agreement dated January 12, 2017 between New Mountain Capital, L.L.C. and the Company.
"Credit Agreement" means that certain Credit Agreement, dated as of January 31, 2017, by and among the Company, Citizens Bank, N.A., as the administrative agent, BMO Harris Bank N.A., as the syndication agent, KeyBank National Association, as the documentation agent, and the lenders from time to time party thereto.
"DCAA" means the Defense Contract Audit Agency.
"Effect" means any change, effect, development, circumstance, condition, state of facts, event or occurrence.
"Environmental Law" means any and all applicable Laws which (i) regulate or relate to pollution or the protection or clean-up of the environment; the use, treatment, storage, transportation, handling, disposal or release of Hazardous Substances, the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources; or the health and safety of persons or property, including protection of the health and safety of employees; or (ii) impose liability or responsibility with respect to any of the foregoing, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), or any other law of similar effect.
"Environmental Permits" means any permit, permit-by-rule, license, authorization, registration or approval required under applicable Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974 and the regulations promulgated and rulings issued thereunder.
"Expenses" means all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Proxy Statement, the solicitation of stockholder and stockholder approvals, the filing of any required notices under the HSR Act or other similar regulations, any filings with the SEC, the Financing, and all other matters related to the Closing of the Merger and the other Transactions.
51
"Financing Sources" means the Persons (and their respective partners, stockholders, members, directors, officers, employees, advisors, agents and representatives of the foregoing and their successors and assigns) that have committed to provide or otherwise entered into agreements in connection with any Debt Financing in respect of the Transactions.
"Government Contract" means any contract or agreement for the provision of supplies or services in exchange for payment that is (i) between the Company or any Company Subsidiary and a Governmental Entity or (ii) entered into by the Company or any Company Subsidiary as a subcontractor at any tier in direct connection with a contract or agreement between another Person and a Governmental Entity.
"group" has the meaning set forth in Rule 13d-3 of the Exchange Act.
"Hazardous Substances" means any pollutant, chemical, substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, or chemical compound, or hazardous substance, material or waste, whether solid, liquid or gas, that is subject to regulation, control or remediation under any Environmental Laws, including without limitation, any quantity of asbestos, urea formaldehyde, polychlorinated biphenyls (PCBs), radon gas, and petroleum products or by-products.
"Indebtedness" means all obligations of a Person (i) for borrowed money, (ii) evidenced by bonds, debentures, notes or similar instruments for the payments of which a Person is responsible or liable or (iii) guaranteeing any obligations of any other Person of the type described in the foregoing.
"Intellectual Property Rights" means all rights in or to all U.S. or foreign: (i) inventions (whether or not patentable) and improvements thereto, patents and patent applications and disclosures relating thereto (and any patents that issue as a result of those patent applications), and any renewals, reissues, reexaminations, extensions, continuations, continuations-in-part, divisions, certificate of invention, and substitutions relating to any of the patents and patent applications, as well as all related foreign patent and patent applications that are counterparts to such patents and patent applications and any other governmental grant for the protection of inventions or industrial designs, (ii) trademarks, service marks, trade dress, logos, brand names, trade names and corporate names, whether registered or unregistered, and the goodwill associated therewith, together with any registrations and applications for registration thereof, (iii) copyrights and rights under copyrights, whether registered or unregistered, including moral rights, and any registrations and applications for registration thereof, (iv) trade secrets and confidential information, including know-how, concepts, methods, processes, designs, schematics, drawings, formulae, technical data, specifications, research and development information, technology, and business plans, (v) rights in software, databases and data collections (including knowledge databases, customer lists and customer databases), (vi) URL and domain name registrations, (vii) other rights to industrial property and European Community designs and (viii) other intellectual property and proprietary rights of any type or nature, recognized under the applicable Laws of any jurisdiction in the world.
"International Trade Laws" means any applicable U.S., UK, EU or other trade control Laws, including (i) trade or economic Laws relating to Sanctions, or other sanctions administered by the EU and the United Kingdom; (ii) export, reexport, transfer, and retransfer Laws administered by the U.S. Department of Commerce and the U.S. Department of State; and (iii) antiboycott Laws administered by the U.S. Department of Commerce and the Internal Revenue Service.
"Intervening Event" means an Effect (other than any Effect resulting from a material breach of this Agreement by the Company) that was not known to the Company Board of Directors as of, or prior to, the date hereof and becomes known to the Company Board of Directors prior to the time
52
of obtaining the Requisite Stockholder Approval; provided that the fact that the Company meets or exceeds any internal or published forecasts or projections for any period, or any change after the date of this Agreement in market price or trading volume of Common Stock, shall not constitute and shall not be taken into account in determining, the existence of an Intervening Event; provided, however, that the underlying reasons for each such event or change may constitute, and may be taken into account in determining whether there has been or there exists, an Intervening Event.
"knowledge" will be deemed to be, as the case may be, the actual knowledge of (i) with respect to Parent or Merger Sub, any executive officer of Parent or Merger Sub, or (ii) with respect to the Company, (A) the Chairman of the Company Board of Directors and Chief Executive Officer, (B) the Senior Vice President and Chief Financial Officer, (C) the Senior Vice President and Chief Strategy Officer, (D) the Senior Vice President, General Counsel and Secretary or (E) the Vice President and Controller.
"Law" means any statute, code, rule, regulation, order, ordinance, judgment, award or decree or other pronouncement of any Governmental Entity having the effect of law.
"Leased Real Property" means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by the Company or any Company Subsidiary.
"Leases" means all leases, subleases, licenses, concessions and other agreements (written and oral) pursuant to which the Company or any Company Subsidiary holds any Leased Real Property.
"Licensed Company Intellectual Property" means all Intellectual Property Rights that are licensed to the Company or any Company Subsidiary by third parties and are material to the conduct of the business of the Company and the Company Subsidiaries.
"Lien" means any lien, pledge, hypothecation, mortgage, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest, pledge or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).
"Marketing Period" means the first period of twenty (20) consecutive business days (ending no later than the business day immediately preceding the Closing Date), commencing on or after April 14, 2017, on the first day of which, throughout which and on the last day of which (i) Parent shall have the Required Information the Company is required to provide pursuant to Section 6.14(a)(iii); provided that if the Company shall in good faith reasonably believe it has provided the Required Information and such Required Information is Compliant, it may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery), in which case the Company shall be deemed to have complied with clause (i) above unless Parent in good faith reasonably believes the Company has not completed the delivery of the Required Information or that the Required Information is not Compliant and, within four (4) business days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with specificity which Required Information the Company has not delivered or is not Compliant); and (ii) the conditions set forth in Section 7.1(b), Section 7.2(a), Section 7.2(b) and Section 7.2(c), have, in each case, been satisfied and nothing has occurred and no condition exists that would cause any of such conditions not to be satisfied assuming the Closing were to be scheduled for any time during such twenty (20) business day period; provided, however, that such twenty (20) consecutive business day period shall not be required to be consecutive to the extent it would include May 29, 2017, July 3, 2017, or July 4, 2017 (which dates set forth in this proviso shall be excluded for purposes of, but shall not reset, such twenty (20) consecutive business day
53
period). Notwithstanding the foregoing, the "Marketing Period" shall not commence and shall be deemed not to have commenced if, on or prior to the completion of such twenty (20) consecutive business day period, (A) the Company shall have publicly announced any intention to restate any financial statements or financial information included in the Required Information, in which case the Marketing Period shall be deemed not to commence unless and until such restatement has been completed and the applicable Required Information has been amended or the Company has announced that it has concluded that no restatement shall be required, and the requirements in clauses (i) and (ii) above would be satisfied on the first day, throughout and on the last day of such new twenty (20) consecutive business day period, (B) the Required Information would not be Compliant on the first day, throughout, and on the last day of such twenty (20) consecutive business day period or (C) the Company shall have failed to file any report with the SEC by the date required under the Exchange Act containing any financial information that would be required to be contained therein or incorporated therein by reference, in which case the Marketing Period shall be deemed not to commence until the time at which all such reports have been filed, in which case a new twenty (20) consecutive business day period shall commence upon Parent and its Financing Sources receiving updated Required Information and such Required Information is Compliant, and the requirements in clauses (i) and (ii) above would be satisfied on the first day, throughout and on the last day of such new twenty (20) consecutive business day period (for the avoidance of doubt, it being understood that if at any time during a Marketing Period the Required Information provided at the initiation of such Marketing Period ceases to be Compliant, then such Marketing Period shall be deemed not to have started until such Required Information is once again Compliant); provided, however, that the Marketing Period shall end on the date the Debt Financing is consummated if such date is prior to the end of an applicable twenty (20) business day period.
"OFCCP" means the Office of Federal Contract Compliance Programs of the U.S. Department of Labor.
"Outside Date" means July 31, 2017.
"Owned Company Intellectual Property" means all Intellectual Property Rights that are owned or purported to be owned by the Company or any Company Subsidiary and, other than the Intellectual Property Rights listed on Schedule 3.17(a) (which shall not be qualified by materiality), are material to the conduct of the business of the Company and the Company Subsidiaries.
"Owned Real Property" means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by the Company or any Company Subsidiary.
"Person" means a natural person, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Entity or other entity or organization.
"Representatives" means, when used with respect to Parent, Merger Sub or the Company, the directors, officers, employees, consultants, financial advisors, accountants, legal counsel, investment bankers, and other agents, advisors and representatives of Parent or the Company, as applicable, and their respective Subsidiaries.
"Requisite Stockholder Approval" means the affirmative vote of the holders of outstanding Common Stock representing at least a majority of all votes entitled to be cast thereupon by holders of the outstanding Common Stock.
"Sanction" means any trade or economic sanction imposed under any applicable Laws administered by the U.S. Department of Treasury Office of Foreign Assets Control or the U.S. Department of State.
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"Significant Subsidiary" means any Subsidiary of the Company that is material or constitutes a "significant subsidiary" of the Company within the meaning of Rule 1-02 of Regulation S-X promulgated under the Securities Act.
"Subsidiary" or "Subsidiaries" means with respect to any Person, any corporation, limited liability company, partnership or other organization, whether incorporated or unincorporated, of which (i) at least a majority of the outstanding shares of capital stock of, or other Equity Interests, having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries or (ii) with respect to a limited partnership, such Person or any other Subsidiary of such Person is a general partner of such partnership.
"Superior Proposal" means any bona fide written Competing Proposal (with each reference to "15%" in the definition of "Competing Proposal" being deemed to be a reference to "50%"), that the Company Board of Directors determines in good faith, after consultation with the Company's financial and legal advisors, and considering such factors as the Company Board of Directors considers to be appropriate, (i) is more favorable from a financial point of view to the Company and its stockholders than the Transactions (including any adjustment to the terms and conditions offered in writing by Parent in response to such proposal pursuant to Section 5.2(e) or otherwise, and including any break-up fees and expense reimbursement provisions) and (ii) is reasonably likely to be consummated in accordance with its terms.
"Tax" or "Taxes" means any and all federal, state, local or foreign taxes, levies, duties, tariffs, imposts and other similar charges and fees of any kind whatsoever (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto, whether disputed or not) imposed by any Governmental Entity or domestic or foreign taxing authority, including income, franchise, windfall or other profits, gross receipts, premiums, property, sales, use, net worth, capital stock, payroll, employment, social security, workers' compensation, unemployment compensation, excise, withholding, ad valorem, stamp, transfer, value-added, gains tax and license, registration and documentation fees, severance, occupation, environmental, customs duties, disability, real property, personal property, registration, alternative or add-on minimum, or estimated tax.
"Tax Return" means any report, return, certificate, claim for refund, election, estimated tax filing or declaration filed or required to be filed with any Governmental Entity or domestic or foreign taxing authority with respect to Taxes, including any schedule or attachment thereto, and including any amendments thereof.
"Transaction Litigation" means any Legal Proceeding (including any class action or derivative litigation) asserted, threatened in writing or commenced by, on behalf of or in the name of, against or otherwise involving the Company, the Company Board of Directors, any committee thereof and/or any of the Company's directors or officers relating directly or indirectly to this Agreement, the Merger or any of the Transactions (including any such claim or Legal Proceeding based on allegations that the Company's entry into this Agreement or the terms and conditions of this Agreement or any of the Transactions constituted a breach of the fiduciary duties of any member of the Company Board of Directors or any officer of the Company).
55
"Willful Breach" means, with respect to any agreement, an intentional act or omission taken with the knowledge that such action or omission constitutes a material breach of such agreement.
(b) The following terms are defined elsewhere in this Agreement, as indicated below:
| "Agreement" | Preamble | |
| "Appraisal Rights" | Section 2.3(a) | |
| "Benefit Plans" | Section 3.11(a) | |
| "Book-Entry Shares" | Section 2.2(b) | |
| "Capital Stock" | Section 2.1(a) | |
| "Capitalization Date" | Section 3.2(a) | |
| "Certificate of Merger" | Section 1.3 | |
| "Certificates" | Section 2.2(b) | |
| "Change of Recommendation" | Section 5.2(b) | |
| "Closing" | Section 1.2 | |
| "Closing Date" | Section 1.2 | |
| "Common Stock" | Section 2.1(a) | |
| "Company" | Preamble | |
| "Company Board of Directors" | Recitals | |
| "Company Board Recommendation" | Recitals | |
| "Company Disclosure Letter" | Article III | |
| "Company Equity Awards" | Section 2.4(c) | |
| "Company Financial Advisor" | Section 3.20 | |
| "Company Major Stockholders" | Recitals | |
| "Company Material Contract" | Section 3.14(b) | |
| "Company Options" | Section 2.4(a) | |
| "Company Permits" | Section 3.18(b) | |
| "Company Related Party" | Section 8.3(e) | |
| "Company SEC Documents" | Section 3.6(a) | |
| "Company Subsidiary" | Section 3.1(b) | |
| "Continuing Employees" | Section 6.7(a) | |
| "Covered Persons" | Section 6.4(a) | |
| "D&O Insurance" | Section 6.4(d) | |
| "Debt Financing" | Section 6.14(a) | |
| "Delaware Courts" | Section 9.10(b) | |
| "DGCL" | Recitals | |
| "Dissenting Shares" | Section 2.3(a) | |
| "Effective Time" | Section 1.3 | |
| "Enforceability Exceptions" | Section 3.3 | |
| "Equity Commitment Letter" | Recitals | |
| "Equity Financing" | Section 4.7(a) | |
| "Equity Interests" | Section 3.2(a) | |
| "Equity Investor" | Section 4.7(a) | |
| "Exchange Act" | Section 3.6(a) | |
| "Exchange Fund" | Section 2.2(a) | |
| "Financial Statements" | Section 3.6(a) | |
| "Financing" | Section 6.14(a) | |
| "GAAP" | Section 3.6(a) | |
| "Governmental Entity" | Section 3.5 | |
| "Guarantee" | Section 4.7(c) | |
| "HSR Act" | Section 3.5 |
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| "Indemnification Agreements" | Section 6.4(a) | |
| "Legal Proceeding" | Section 3.10 | |
| "Letter of Transmittal" | Section 2.2(b) | |
| "Merger" | Recitals | |
| "Merger Consideration" | Section 2.1(a) | |
| "Merger Sub" | Preamble | |
| "Merger Sub Common Stock" | Section 2.1(c) | |
| "Notice Period" | Section 5.2(e)(i) | |
| "Open Performance Period" | Section 2.4(b) | |
| "Option Consideration" | Section 2.4(a) | |
| "Parent" | Preamble | |
| "Parent Liability Limitation" | Section 8.3(e) | |
| "Parent Related Party" | Section 8.3(d) | |
| "Participant" | Section 3.11(e) | |
| "Paying Agent" | Section 2.2(a) | |
| "Permitted Liens" | Section 3.15(a) | |
| "Preliminary Proxy Statement" | Section 5.3 | |
| "Properties" | Section 3.15(a) | |
| "Proxy Statement" | Section 3.19 | |
| "Required Governmental Approvals" | Section 6.2(a) | |
| "Required Information" | Section 6.14(a)(iii) | |
| "Restricted Awards" | Section 2.4(b) | |
| "Sarbanes-Oxley Act" | Section 3.6(a) | |
| "SEC" | Section 3.5 | |
| "Securities Act" | Section 3.6(a) | |
| "Share" | Section 2.1(a) | |
| "Solvent" | Section 4.12 | |
| "Special Meeting" | Section 5.4 | |
| "Support Agreement" | Recitals | |
| "Surviving Corporation" | Section 1.1(a) | |
| "Takeover Law" | Section 3.24 | |
| "Transactions" | Recitals | |
| "Voting Debt" | Section 3.2(a) |
Section 9.6 Interpretation.
The words "hereof," "herein" and "hereunder" and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement. References to Articles, Sections, Exhibits, Annexes and Schedules are to Articles, Sections, Exhibits, Annexes and Schedules of this Agreement unless otherwise specified. All Exhibits,
Annexes and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the singular. Whenever the words "include", "includes" or "including" are used in this Agreement they shall be deemed to be followed by the words
"without limitation." The word "or" shall not be exclusive. For purposes of this Agreement, the term "made available" with respect to any documents or item made available by the Company, shall mean
that such document or item has been made available to Parent and its Representatives in the electronic data room maintained by the Company at https://login.merrillcorp.com on or before one business
day immediately prior to the execution of this Agreement (or such other later time as may be acknowledged in writing by Parent or its counsel). The phrase "in the ordinary course of business" shall be
deemed to be followed by the words "consistent with past practice." References to "dollars" or "$" are to United States of America dollars. References (a) to any statute, rule or regulation
shall be deemed to refer to such statute, rule or regulation as amended from time to time and to any rules or
57
regulations promulgated thereunder; provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any statute, rule or regulation shall be deemed to refer to such statute, rule or regulation, as amended (and, in the case of statutes, any rules and regulations promulgated under such statutes), in each case, as of such date, (b) to any contract are to that contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any contract listed on any Schedules hereto, all such amendments, modifications or supplements must also be listed in the appropriate Schedule, (c) to any Person include the successors and permitted assigns of that Person, and all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires, (d) to the Subsidiaries of a Person shall be deemed to include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires, (e) from or through any date mean, unless otherwise specified, from and including or through and including, respectively, (f) to the "date hereof" means the date of this Agreement, and (g) to a "party" or the "parties" mean the parties to this Agreement unless otherwise specified or the context otherwise requires. Unless otherwise provided in or required by this Agreement, neither the specification of any dollar amount in any representation or warranty contained in this Agreement nor the inclusion of any specific item in any schedule is intended to imply that such amount, or higher or lower amounts, or the item so included or other items, are or are not material. Unless otherwise provided in or required by this Agreement, neither the specification of any item or matter in any representation or warranty contained in this Agreement nor the inclusion of any specific item in any schedule is intended to imply that such item or matter, or other items or matters, are or are not in the ordinary course of business. As used in this Agreement, the word "day" means a calendar day, unless business day is expressly specified. All references to this Agreement shall be deemed to include references to the "plan of merger" contained herein (as such term is used in the DGCL). The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. The parties agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
Section 9.7 Counterparts.
This Agreement may be executed manually or by facsimile or other electronic transmission by the parties (including in .pdf, .tiff, .jpg or similar format), in any number of counterparts,
each of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the parties and delivered to the other parties.
Section 9.8 Entire Agreement; Third-Party Beneficiaries.
(a) This Agreement (including the Company Disclosure Letter), the Equity Commitment Letter, the Guarantee and the Confidentiality Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements (except that the Confidentiality Agreement shall be deemed to be amended so that until the termination of this Agreement in accordance with Section 8.1, Parent and Merger Sub shall be permitted to take the actions contemplated by this Agreement) and understandings, both written and oral, among the parties or any of them with respect to the subject matter hereof and thereof.
(b) Except (i) if the Effective Time occurs, the right of the Company's stockholders to receive the Merger Consideration in accordance with the terms of this Agreement and the right of the holders of Company Equity Awards to receive the applicable payments contemplated by Section 2.4, (ii) as provided in Section 6.4, (iii) the rights of the Company as an express third-party beneficiary of each of the Guarantee and the Equity Commitment Letter, and (iv) subject to the
58
limitations set forth in Section 8.3(d), the right of the Company, on behalf of its stockholders, to pursue damages in the event of Parent's or Merger Sub's fraud or Willful Breach of this Agreement, neither this Agreement (including the Company Disclosure Letter) nor the Confidentiality Agreement are intended to confer upon any Person other than the parties hereto any rights or remedies hereunder. Notwithstanding the foregoing, any Financing Sources shall be express third-party beneficiaries of Section 8.3(d), Section 8.3(e), Section 9.1, this Section 9.8, Section 9.10, Section 9.11, Section 9.12 and Section 9.13(d).
Section 9.9 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by rule of Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or legal substance of the Merger is not affected in any manner adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the Merger are fulfilled to the extent possible.
Section 9.10 Governing Law; Jurisdiction.
(a) This Agreement, the Equity Commitment Letter and the Guarantee shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to conflicts of laws principles that would result in the application of the Law of any other state or jurisdiction.
(b) Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery, or, if (and only if) such court lacks subject matter jurisdiction, the Superior Court of the State of Delaware or, to the extent they have subject matter jurisdiction, Federal courts of the United States of America sitting in the State of Delaware, and the respective appellate courts from the foregoing (all of the foregoing, collectively, the "Delaware Courts"), in any action or proceeding arising out of or relating to this Agreement or the agreements delivered in connection herewith (including the Equity Commitment Letter and the Guarantee) or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in the applicable Delaware Court, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the applicable Delaware Court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any such action or proceeding in the applicable Delaware Court and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in the applicable Delaware Court. Each of the parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to service of process in the manner provided for notices in Section 9.4. Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.
(c) Notwithstanding anything herein to the contrary, each of the parties hereby agrees that it will not bring or support any action, cause of action, claim, cross-claim or third party claim of any kind or description, whether at law or in equity, whether in contract or in tort or otherwise, against any Financing Source or other Person providing Debt Financing in any way relating to this Agreement, the other agreements and documents contemplated hereby, or the transactions contemplated hereby or thereby, or the performance thereof or services related thereto, in any forum other than the United States District Court for the Southern District of New York or any New York State Court sitting in the Borough of Manhattan in the City of New York.
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Section 9.11 Waiver of Jury Trial.
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH (INCLUDING THE EQUITY COMMITMENT LETTER OR THE GUARANTEE) OR THE MERGER, THE FINANCING AND OTHER TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF A LEGAL PROCEEDING, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 9.11.
Section 9.12 Assignment.
This Agreement shall not be assigned by any of the parties (whether by operation of Law or otherwise) without the prior written consent of the other parties, except that Parent or Merger
Sub may transfer or assign (a) all (but not less than all) of its or their rights and obligations under this Agreement to any direct or indirect wholly-owned Subsidiary of Parent, provided that
such assignment shall not impair, delay or prevent the consummation of the Merger, (b) collaterally their rights hereunder to any Financing Sources and (c) after the Effective Time, its
or their rights and obligations under this Agreement, in whole or from time to time in part, to any Person; provided that any such transfer or
assignment shall not relieve Parent or Merger Sub of its respective obligations hereunder or enlarge, alter or change any obligation of any other party or due to Parent or Merger Sub.
Section 9.13 Enforcement; Remedies.
(a) Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.
(b) The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Except as set forth in this Section 9.13, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, the non-breaching party shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, in each case by any other party hereto or thereto, and to specifically enforce the terms and provisions herein or therein.
(c) The parties' right of specific enforcement is an integral part of the Transactions contemplated by this Agreement and each party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any other parties to this Agreement (including any objection on the basis that there is an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity, or that the provisions set forth in Section 8.3 adequately compensate for the harm that would result from a breach of this Agreement or should otherwise be construed to diminish or impair any party's right to specific performance hereunder), and each party shall be entitled to an injunction or injunctions and to specifically enforce the terms and provisions of this Agreement to prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such party under this Agreement, all in accordance with the terms of this Section 9.13. In the event any party seeks an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement,
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such party shall not be required to provide any bond or other security in connection with such order or injunction, all in accordance with the terms of this Section 9.13.
(d) Notwithstanding anything to the contrary contained or implied herein, the parties agree and acknowledge that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement, or any transaction contemplated by the foregoing, shall be had against any Financing Sources, whether by enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Financing Source for any obligation of any party hereto under this Agreement, any documents or instruments delivered in connection with this Agreement, or any transaction contemplated by the foregoing, for any claim based on, in respect of or by reason of such obligations or their creation.
[Remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above.
| BOLT INFRASTRUCTURE PARENT, INC. | ||||||
By |
/s/ LARS O. JOHANSSON |
|||||
| Name: | Lars O. Johansson | |||||
| Title: | President | |||||
[Signature Page to Merger Agreement]
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above.
| BOLT INFRASTRUCTURE MERGER SUB, INC. | ||||||
By |
/s/ LARS O. JOHANSSON |
|||||
| Name: | Lars O. Johansson | |||||
| Title: | President | |||||
[Signature Page to Merger Agreement]
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above.
| TRC COMPANIES, INC. | ||||||
By |
/s/ CHRISTOPHER P. VINCZE |
|||||
| Name: | Christopher P. Vincze | |||||
| Title: | Chairman & CEO | |||||
[Signature Page to Merger Agreement]
Form of Support Agreement
A-1
FORM OF VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (hereinafter referred to as this "Agreement"), dated as of March 30, 2017, is by and among Bolt Infrastructure Parent, Inc., a Delaware corporation ("Parent"), Bolt Infrastructure Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and the Person identified on Schedule I attached hereto ("Stockholder").
WHEREAS, Stockholder is, as of the date hereof, the record and beneficial owner (for purposes of this Agreement, "beneficial owner" (including "beneficially own" and other correlative terms) shall have the meaning set forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act")) of the number of shares of Common Stock of TRC COMPANIES, INC., a Delaware corporation (the "Company"), as set forth opposite the name of Stockholder on Schedule I hereto;
WHEREAS, Parent, Merger Sub, and the Company have entered into an Agreement and Plan of Merger, dated as of the date hereof (as may be amended, restated, supplemented or otherwise modified from time to time, the "Merger Agreement"), which provides, among other things, for the merger of Merger Sub with and into the Company (the "Merger"), with the Company being the surviving entity of such Merger and a wholly-owned subsidiary of Parent, upon the terms and subject to the conditions set forth in the Merger Agreement (unless otherwise defined or indicated herein, capitalized terms used herein shall have the respective meanings specified in the Merger Agreement); and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to enter into the Merger Agreement and as an inducement and in consideration therefor, Parent and Merger Sub have required that Stockholder, and Stockholder has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Stockholder. Stockholder
hereby represents and warrants to Parent and Merger Sub as follows:
- (a)
- As
of the time of execution of this Agreement, Stockholder (i) is the record and beneficial owner of the shares of Common Stock (together with any shares of
Common Stock which such Stockholder may acquire at any time in the future during the term of this Agreement, including pursuant to any exercise of Company Options, the
"Stockholder Securities") set forth opposite Stockholder's name on Schedule I to this Agreement
and (ii) except as set forth in Schedule I to this Agreement, neither holds nor has any beneficial ownership interest in any other shares
of Common Stock or Company Options.
- (b)
- Stockholder
has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
- (c)
- This
Agreement has been duly executed and delivered by Stockholder and, assuming this Agreement constitutes a legal, valid and binding obligation of Parent and
Merger Sub, this Agreement constitutes a legal, valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with its terms, subject to the Enforceability Exceptions.
- (d)
- Neither the execution and delivery of this Agreement nor the consummation by Stockholder of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which Stockholder is a party or by which Stockholder or Stockholder's assets are bound, except for such violations, defaults or conflicts as would not prevent or materially delay Stockholder's performance of its obligations under this Agreement. Assuming compliance with the applicable provisions of the HSR Act, and assuming all notifications, filings, registrations, permits, authorizations, consents or approvals to be obtained or made by the Company, Parent or Merger Sub in connection with the Merger Agreement and the Transactions are obtained or made, the consummation by Stockholder of
- (e)
- The
Stockholder Securities and the Certificates or Book-Entry Shares, as the case may be, representing the Stockholder Securities owned by Stockholder are now, and,
at all times during the term of this Agreement will be, held by Stockholder or by a nominee or custodian for the benefit of Stockholder, free and clear of all Liens, except for any such Liens arising
hereunder and any applicable restrictions on transfer under the Securities Act (collectively, "Permitted Liens").
- (f)
- Stockholder
has full voting power, with respect to the Stockholder Securities, and full power of disposition, full power to issue instructions with respect to the
matters set forth herein, and full power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Stockholder Securities. The Stockholder Securities are not
subject to any proxy, voting trust or other agreement, arrangement or restriction with respect to the voting of such Stockholder Securities.
- (g)
- As
of the time of execution of this Agreement, there is no Legal Proceeding or governmental or regulatory investigations of any nature pending or, to the knowledge
of Stockholder, threatened against Stockholder at law or equity before or by any Governmental Entity that could reasonably be expected to prevent or materially delay the Stockholder's performance of
its obligations under this Agreement or otherwise adversely impact Stockholder's ability to perform its obligations hereunder.
- (h)
- Stockholder
has received and reviewed a copy of the Merger Agreement. Stockholder understands and acknowledges that Parent and Merger Sub are entering into the
Merger Agreement in reliance upon Stockholder's execution, delivery and performance of this Agreement.
- (i)
- No broker, investment bank, financial advisor or other Person is entitled to any broker's, finder's, financial adviser's or similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Stockholder.
the transactions contemplated hereby will not (i) violate any provision of any decree, order or judgment applicable to Stockholder, (ii) require any consent, approval, or notice under any legal requirements applicable to Stockholder, other than as required under the Exchange Act and the rules and regulations promulgated thereunder and other than such consents, approvals and notices that, if not obtained, made or given, would not prevent or materially delay Stockholder's performance of its obligations under this Agreement, or (iii) if such Stockholder is an entity, violate any provision of such Stockholder's organizational documents.
SECTION 2. Representations and Warranties of Parent and Merger Sub. Each of Parent and Merger Sub hereby, jointly and severally, represent and warrant to Stockholder as follows:
- (a)
- Each
of Parent and Merger Sub is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and each of
Parent and Merger Sub has the corporate power and authority, as the case may be, to execute and deliver and perform its obligations under this Agreement and the Merger Agreement and to consummate the
transactions contemplated hereby and thereby, and each has taken all necessary action to duly authorize the execution, delivery and performance of this Agreement and the Merger Agreement.
- (b)
- This Agreement and the Merger Agreement have been duly authorized, executed and delivered by each of Parent and Merger Sub, and, assuming this Agreement and the Merger Agreement constitute legal, valid and binding obligations of the other parties hereto and thereto, constitute the legal, valid and binding obligations of each of Parent and Merger Sub,
2
- (c)
- Neither the execution and delivery of this Agreement nor the consummation by Parent and Merger Sub of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which either Parent or Merger Sub is a party or by which Parent or Merger Sub, or any of their respective assets are bound, except for such violations, defaults or conflicts as would not prevent or materially delay Parent's or Merger Sub's performance of its obligations under this Agreement and the Merger Agreement. Assuming compliance with the applicable provisions of the HSR Act, and assuming all notifications, filings, registrations, permits, authorizations, consents or approvals to be obtained or made by the Company in connection with the Merger Agreement and the Transactions are obtained or made, the consummation by Parent and Merger Sub of the transactions contemplated hereby will not (i) violate any provision of any decree, order or judgment applicable to Parent or Merger Sub, (ii) require any consent, approval, or notice under any legal requirements applicable to Parent or Merger Sub, other than as required under the Exchange Act and the rules and regulations promulgated thereunder and other than such consents, approvals and notices that, if not obtained, made or given, would not prevent or materially delay Parent's and Merger Sub's performance of their respective obligations under this Agreement and the Merger Agreement, or (iii) violate any provision of Parent's or Merger Sub's organizational documents.
are enforceable against each of them in accordance with their terms, subject to the Enforceability Exceptions.
SECTION 3. Transfer of the Shares; Other Actions.
- (a)
- Prior
to the End Date, except as otherwise expressly provided herein (including pursuant to this Section 3 or Section 4) or in the Merger Agreement,
Stockholder shall not, and shall cause each of its Subsidiaries not to: (i) directly or indirectly
transfer, assign, sell, gift-over, hedge, pledge or otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution) of, enter into any derivative arrangement with respect to,
or create any Lien (other than Permitted Liens) on or enter into any agreement with respect to (any of the foregoing, a "Transfer"), any or all of its
Stockholder Securities; (ii) enter into any contract, option or other agreement, arrangement or understanding with respect to any Transfer; (iii) grant any proxy, power-of-attorney or
other authorization or consent with respect to any of the Stockholder Securities with respect to any matter that is in contravention of the obligations of Stockholder under this Agreement with respect
to the Stockholder Securities; (iv) deposit any of the Stockholder Securities into a voting trust, or enter into a voting agreement or arrangement with respect to any of such Stockholder
Securities in contravention of the obligations of Stockholder under this Agreement with respect to the Stockholder Securities; or (v) take or cause the taking of any other action that would
restrict or prevent the performance of such Stockholder's obligations hereunder or the transactions contemplated hereby. Any action taken in violation of the foregoing sentence shall be null and void ab initio. If any involuntary Transfer of any of the Stockholder Securities shall occur (including, but not limited to, a sale by Stockholder's trustee
in any bankruptcy, or a sale to a purchaser at any creditor's or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the
initial transferee) shall take and hold such Stockholder Securities subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until
the End Date.
- (b)
- Stockholder agrees that it will not exercise any Appraisal Rights available to Stockholder with respect to the Merger.
3
- (a)
- Prior
to the End Date, without in any way limiting Stockholder's right to vote the Stockholder Securities in its sole discretion on any other matters not set forth
in Section 4(a)(ii) that may be submitted to a Stockholder vote, consent or other approval, at any annual, special or other meeting of the
Company's stockholders called or any action by written consent in lieu of a meeting of stockholders of the Company with respect to any of the following, and at any adjournment or postponement thereof,
Stockholder (in Stockholder's capacity as a holder of the Stockholder Securities) shall, or shall cause the holder of record on any applicable record date to, (i) appear at each such meeting or
otherwise cause all of Stockholder's Stockholder Securities entitled to vote to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), in
person or by proxy, all Stockholder Securities, beneficially owned by Stockholder and entitled to vote (A) in favor of the approval of the Merger Agreement and the approval of the Merger and
the other Transactions contemplated by the Merger Agreement, and/or (B) against (x) any action or agreement which could reasonably be expected to prevent, delay, or adversely affect the
Merger Agreement, the Merger or this Agreement, (y) any Competing Proposal and (z) any action, proposal, transaction or agreement that could reasonably be expected to result in a breach
of any covenant, representation or warranty or any other obligation or agreement of Stockholder under this Agreement. Any vote by the Stockholder that is not in accordance with this Section 4(a)
will be considered null and void.
- (b)
- Notwithstanding
the foregoing, Stockholder shall retain at all times the right to vote the Stockholder Securities held by it in its sole discretion and without any
other limitation on those matters other than those set forth in Section 4(a)(ii) that are at any time or from time to time presented for
consideration to the Company's stockholders.
- (c)
- The obligations set forth in this Section 4 shall apply to Stockholder unless and until the End Date shall have occurred, at which time such obligations shall terminate and be of no further force or effect.
SECTION 5. No Solicitation. Subject to Section 6, Stockholder agrees that it shall not, and shall cause its Representatives not to,
directly or indirectly: (i) solicit, facilitate or initiate or knowingly encourage or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Competing
Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Competing Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations
regarding, or furnish to any Person any information or data with respect to, or otherwise cooperate in any way with, any Competing Proposal, (iii) approve, endorse or recommend any proposal
that constitutes or is reasonably likely to lead to any Competing Proposal, (iv) enter into any merger agreement, letter of intent, term sheet, agreement in principle, memorandum of
understanding, acquisition agreement or other similar agreement providing for, facilitating or endorsing a Competing Proposal or enter into any contract, agreement or arrangement requiring the Company
to abandon, terminate or fail to consummate the Transactions contemplated by the Merger Agreement, or (v) furnish to any Person (other than Parent, its affiliates or any of their
Representatives, the Company's affiliates or the Representatives of the Company or any of the Company's affiliates) any information relating to the Company or any Company Subsidiary or to afford to
any Person access to the business, properties, assets, books, records of other information, or to any personnel, of the Company and Company Subsidiaries (other than Parent, its affiliates or any of
their Representatives, the Company's affiliates or the Representatives of the Company or any of the Company's affiliates); provided, however, that this
Agreement shall not restrict the ability of Stockholder to review a Superior Proposal and to discuss and confirm to the Company and
to any party who has submitted a Superior Proposal, the willingness of the Stockholder to support and sign a voting agreement on terms and conditions substantially similar to those contained herein in
connection with such Superior Proposal, in
4
the event of any termination of the Merger Agreement. Stockholder shall, and, subject to the provisions of Section 6, shall cause its Representatives to, immediately cease all discussions and negotiations with any Person (other than Parent, its affiliates or any of their Representatives, the Company's affiliates or the Representatives of the Company or any of the Company's affiliates) that may be ongoing as of the date of this Agreement with respect to any proposal that constitutes, or is reasonably expected to result in, any Competing Proposal. Nothing in this Section 5 shall prohibit Stockholder or its Representatives from informing any Person of the existence of the provisions contained in this Section 5.
SECTION 6. Directors and Officers. Notwithstanding any provision of
this Agreement to the contrary, this Agreement shall apply to Stockholder solely in Stockholder's capacity as a holder of the
Stockholder Securities and/or other shares of Common Stock or Company Options and not in Stockholder's or any partner, officer, employee, affiliate or Representative of Stockholder's capacity as a
director, officer or employee of the Company or any of its Subsidiaries. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall limit or restrict any actions
or omissions of any such Person in his or her capacity as a director and/or officer of the Company or any Company Subsidiary or from fulfilling the duties and obligations of such office, including in
the exercise of his or her fiduciary duties as a director and/or officer of the Company or any Company Subsidiary.
SECTION 7. Further Assurances. Each party shall execute and deliver
any additional documents and take such further actions that are reasonably necessary to carry out all of its obligations
under the provisions hereof.
- (a)
- This Agreement, and all rights and obligations of the parties hereunder, shall terminate immediately and automatically, and be of no further force and effect, without any notice or other action by any Person, upon the earliest to occur of the following (the date of such termination, the "End Date"):
- (b)
- Upon termination of this Agreement, all obligations of the parties hereto under this Agreement will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party hereto shall have any claim against another (and no Person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof, provided, however, that the termination of this Agreement shall not relieve any party hereto from liability from any willful misrepresentation or willful and material breach of this Agreement, in each case prior to such termination.
(i) termination of the Merger Agreement in accordance with its terms;
(ii) the Effective Time;
(iii) any change, waiver or amendment to the terms of the Merger Agreement without the prior written consent of Stockholder that (A) reduces the Merger Consideration or any consideration otherwise payable with respect to the Company Options beneficially owned by Stockholder (subject to adjustments in compliance with Section 2.1(d) of the Merger Agreement), (B) changes the form of consideration payable in the Merger or any consideration otherwise payable with respect to the shares of Common Stock or Company Options beneficially owned by Stockholder or (C) otherwise materially amends the Merger Agreement in a manner adverse to the Stockholder relative to the other stockholders of the Company; or
(iv) the mutual written consent of Parent and Stockholder.
5
- (c)
- Sections 8(b), 9 and 12 hereof shall survive the termination of this Agreement.
SECTION 9. Expenses. All fees and expenses incurred in connection
with the negotiation and execution of this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees and expenses, whether or not the Merger is consummated.
SECTION 10. Public Announcements. Stockholder shall not make public
announcements regarding this Agreement and the transactions contemplated hereby that are inconsistent with the public statements
made by the Company and Parent in connection with this Agreement, the Merger Agreement and the Transactions contemplated thereby, without the prior written consent of Parent (such consent not to be
unreasonably withheld, delayed or conditioned). Stockholder (a) consents to and authorizes (i) the publication and disclosure by the Company, Parent and their respective affiliates of
its identity and beneficial ownership of the Stockholder Securities and the nature of its commitments, obligations, arrangements and understandings under this Agreement in the Proxy Statement, any
current report of the Company on Form 8-K and any other documents required to be filed with the SEC or other Governmental Entity; provided, however,
that Parent shall provide Stockholder and its counsel reasonable opportunity to review and comment thereon, and Parent shall give reasonable
consideration to any such comments and (ii) the filing by the Company, Parent and their respective affiliates of this Agreement as an exhibit to the extent required to be filed with the SEC or
any Governmental Entity relating to the Merger, and (b) agrees to promptly give to the Company and Parent any information they may reasonably require for the preparation of any such disclosure
documents required to be filed with the SEC or any Governmental Entity; provided that Stockholder makes no representations, and shall have no liability
to Parent, Merger Sub or the Company or any of their respective affiliates, with respect to any other disclosure made by Parent, Merger Sub, the Company or any of their respective affiliates, or with
respect to any other information contained in any such disclosure documents.
SECTION 11. Adjustments; Additional Stockholder Securities. In the
event (a) of reclassification, stock split (including a reverse stock split), combination, stock dividend or distribution, recapitalization,
subdivision, merger, issuer tender or exchange offer, or other similar transaction or (b) that Stockholder shall become the beneficial owner of any additional shares of Common Stock and Company
Options, then the terms of this Agreement shall apply to the shares of Common Stock and Company Options held by Stockholder immediately following the effectiveness of the events described in
clause (a) or Stockholder becoming the beneficial owner thereof as described in clause (b), as though, in either case, they were Stockholder Securities hereunder. In the event that
Stockholder shall become the beneficial owner of any other securities entitling the holder thereof to vote or give consent with respect to the matters set forth in Section 4(a)(ii) hereof, then the
terms of Section 4 hereof shall apply to such other
securities as though they were Stockholder Securities hereunder.
(a) Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile or email or by registered or certified mail (postage prepaid, return receipt requested and providing proof of delivery) to the respective parties hereto at the
6
following addresses, facsimile numbers or email addresses as follows (or at such other address, facsimile number or email address for a party as shall be specified by like notice):
| If to Stockholder, to the address set forth on Schedule I hereto, | |||
with a copy to (which shall not constitute notice): |
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Covington & Burling LLP |
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The New York Time Building |
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620 Eighth Avenue |
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Attention: |
Andrew W. Ment | ||
Facsimile: |
(646) 441-9012 | ||
Email: |
ament@cov.com | ||
If to Parent or Merger Sub, to: |
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Bolt Infrastructure Parent, Inc. |
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c/o New Mountain Capital, L.L.C. |
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787 7th Avenue |
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New York, New York 10019 |
|||
Attention: |
Mat Holt Joe Delgado Lars Johansson |
||
Facsimile: |
(212) 582-2277 | ||
E-mail: |
mholt@newmountaincapital.com jdelgado@newmountaincapital.com LJohansson@newmountaincapital.com |
||
with a copy to (which shall not constitute notice): |
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Kirkland & Ellis LLP |
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601 Lexington Avenue |
|||
New York, NY 10022 |
|||
Attention: |
Joshua Kogan, P.C. David Feirstein, P.C. |
||
Facsimile: |
(212) 446-6460 | ||
E-mail: |
joshua.kogan@kirkland.com |
||
(b) Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission, ".pdf," or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
(d) Entire Agreement, No Third-Party Beneficiaries. This Agreement (i) constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among or between any of the parties hereto, with respect to the subject matter hereof and (ii) is not intended to, nor shall it, confer upon any other person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
7
(e) Governing Law, Jurisdiction. This Agreement shall be governed and construed in accordance with the Laws of the State of Delaware, without regard to any conflicts of laws principles that would result in the application of the Law of any other state or jurisdiction. Each party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery, or, if (and only if) such court lacks subject matter jurisdiction, the Superior Court of the State of Delaware or, to the extent they have subject matter jurisdiction, Federal courts of the United States of America sitting in the State of Delaware, and the respective appellate courts from the foregoing (all of the foregoing, collectively, the "Delaware Courts"), in any action or proceeding arising out of or relating to this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby or the agreements delivered in connection herewith or therewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each party hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in the applicable Delaware Court, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the applicable Delaware Court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any such action or proceeding in the applicable Delaware Court and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in the applicable Delaware Court. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to service of process in the manner provided for notices in accordance with Section 12(a) . Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.
(f) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE MERGER AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MERGER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUIT, ACTION OR OTHER PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(f).
(g) Assignment. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of each of the other parties hereto, and any assignment without such consent shall be null and void; provided, however, that Parent and Merger Sub may assign, in their sole discretion and without the consent of any other party hereto, any or all of their rights, interests and obligations hereunder to each other or to one or more direct or indirect wholly-owned Subsidiaries of Parent in connection with the assignment of the rights, interests and obligations of Parent and/or Merger Sub under the Merger Agreement to such direct or indirect wholly-owned Subsidiaries of Parent in accordance with the terms of the Merger Agreement, and any such assignee may thereafter assign, in its sole discretion and without the consent of any other
8
party, any or all of its rights, interests and obligations hereunder to one or more additional direct or indirect wholly-owned Subsidiaries of Parent in connection with the assignment of the rights, interests and obligations of such assignee under the Merger Agreement to such additional direct or indirect wholly-owned Subsidiaries of Parent in accordance with the terms of the Merger Agreement; provided, however, that no such assignment shall relieve Parent or Merger Sub of any of their respective obligations under this Agreement. Subject to the preceding two sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
(h) Severability of Provisions. If any term or other provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
(i) Specific Performance. The parties hereto agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy would occur in the event that the parties hereto do not perform the provisions of this Agreement (including any party hereto failing to take such actions as are required of it hereunder in order to consummate the transactions contemplated by this Agreement) in accordance with its specified terms or otherwise breach such provisions. The parties hereto acknowledge and agree that (i) the parties hereto will be entitled, in addition to any other remedy to which they are entitled at law or in equity, to an injunction, specific performance and other equitable relief to prevent breaches (or threatened breaches) of this Agreement and to enforce specifically the terms and provisions hereof; and (ii) the right of specific enforcement is an integral part of the Agreement and without that right, Parent would not have entered into this Agreement. It is accordingly agreed that each party hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which they are entitled at law or in equity and any party hereto seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement will not be required to provide any bond or other security in connection with such injunction or enforcement, and each party hereto irrevocably waives any right that it may have to require the obtaining, furnishing or posting of any such bond or other security.
(j) Amendment. No amendment or modification of this Agreement shall be effective unless it shall be in writing and signed by each of the parties hereto, and no waiver or consent hereunder shall be effective against any party unless it shall be in writing and signed by such party.
(k) Binding Nature. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective successors and permitted assigns.
(l) No Recourse. Parent and Merger Sub agree that Stockholder will not be liable for claims, losses, damages, expenses and other liabilities or obligations resulting from or related to the Merger Agreement or the Merger (other than any liability for claims, losses, damages, expenses and other liabilities or obligations solely to the extent arising under, and in accordance with the terms of, this Agreement), including the Company's breach of the Merger Agreement.
9
(m) No Presumption. This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
(n) No Agreement Until Executed. This Agreement shall not be effective unless and until (i) the Merger Agreement is executed by all parties thereto and (ii) this Agreement is executed by all parties hereto.
(o) No Ownership Interest. Except as otherwise specifically provided herein, nothing contained in this Agreement shall be deemed to vest in Parent or Merger Sub any direct or indirect ownership or incidence of ownership of or with respect to the Stockholder Securities. All rights, ownership and economic benefits of and relating to the Stockholder Securities shall remain vested in and belong to Stockholder, and neither Parent nor Merger Sub shall have any authority to manage, direct, restrict, regulate, govern, or administer any of the policies or operations of the Company or exercise any power or authority to direct Stockholder in the voting of any of the Stockholder Securities, except as otherwise specifically provided herein.
[Remainder of page intentionally left blank; signature pages follow]
10
IN WITNESS WHEREOF, Parent, Merger Sub and Stockholder have caused this Agreement to be duly executed and delivered as of the date first written above.
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[Signature Page—Voting and Support Agreement]
NAME AND CONTACT INFORMATION
|
SHARES OF COMMON STOCK |
COMPANY OPTIONS
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|---|---|---|---|---|
| [Name] | ||||
| [Address] | ||||
| Attention: [ ] | ||||
| Facsimile: [ ] | ||||
| Email: [ ] |
Form of Amended and Restated Certificate of Incorporation of the Surviving Corporation
B-1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRC COMPANIES, INC.
The undersigned, being an authorized officer of TRC Companies, Inc. (the "Corporation"), a corporation organized and existing under the General Corporation Law of the State of Delaware ("DGCL"), does hereby certify as follows:
1. The name of the Corporation is TRC Companies, Inc.
2. The original Certificate of Incorporation of the Corporation (the "Certificate of Incorporation") was filed with the Secretary of State of the State of Delaware on February 20, 1969.
3. The provisions of the Certificate of Incorporation as herein amended are hereby restated and integrated into a single instrument which is set forth in Exhibit A hereto, and which is entitled "Amended and Restated Certificate of Incorporation of TRC Companies, Inc.".
4. The Amended and Restated Certificate of Incorporation (the "Amended and Restated Certificate") herein certified has been duly adopted by the Corporation's board of directors and the Corporation's stockholders in accordance with Sections 228, 242 and 245 of the DGCL.
5. The Certificate of Incorporation as amended and restated herein shall, at the effective time of this Amended and Restated Certificate, be read in its entirety as set forth in Exhibit A annexed hereto and is hereby incorporated herein by this reference.
IN WITNESS WHEREOF, the undersigned, for the purpose of amending and restating the Certificate of Incorporation of the Corporation pursuant to the DGCL, under penalties of perjury, does hereby declare and certify that this is the act and deed of the Corporation and the facts stated herein are true, and accordingly has hereunto signed this Amended and Restated Certificate of Incorporation of the Corporation this day of , 2017.
|
TRC COMPANIES, INC. | |||||
|
By: |
|
||||
|
Name: | [·] | ||||
|
Title: | [·] | ||||
Exhibit A
Amended and Restated Certificate of Incorporation
of
TRC Companies, Inc.
See attached.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TRC COMPANIES, INC.
The name of the corporation is TRC Companies, Inc. (hereinafter called the "Corporation").
The address of the Corporation's registered office is located at 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the "DGCL").
The total number of shares which the Corporation shall have the authority to issue is one thousand (1,000) shares, all of which shall be shares of Common Stock, with a par value of one cent ($0.01) per share.
The holder of each share of common stock shall be entitled to a number of votes equal to the dollar amount per share contributed by such holder for such share, rounded to the nearest dollar amount.
The board of directors of the Corporation (the "Board of Directors") shall have the power to adopt, amend or repeal by-laws of the Corporation (the "By-laws"), except as may otherwise be provided in the By-laws.
The Corporation expressly elects not to be governed by Section 203 of the DGCL.
Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the DGCL or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the DGCL, order a meeting of the creditors or class of creditors, and/or the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders, or class of stockholders, of the Corporation, as the case may be, and also on this Corporation.
Each director of the Corporation shall be personally liable to the Corporation or any of its shareholders, if at all, for monetary damages for breach of a fiduciary duty as a director only for: (a) any breach of the director's duty of loyalty to the Corporation or its shareholders; (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) acts covered under Section 174 of the Delaware General Corporation Law, or (d) for any transaction from which the director derives improper personal benefit.
To the fullest extent permitted by law, the doctrine of corporate opportunity and any analogous doctrine shall not apply to any shareholder, director, officer or any other person or entity in each case who is not a full-time employee of the Corporation or any of its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates). The Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any shareholder, director or officer or any other person or entity in each case who is not a full-time employee of the Corporation or any of its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates). Each shareholder, director, officer or any other person or entity in each case who is not a full-time employee of the Corporation or any of its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates) who acquires knowledge of a potential circumstance, transaction, agreement, arrangement or other matter that may be an opportunity for the Corporation shall not (a) have any duty to communicate or offer such opportunity to the Corporation and (b) shall not be liable to the Corporation, its subsidiaries or to the shareholders of the Corporation because such shareholder, director, officer or other person or entity in each case who is not a full-time employee of the Corporation or its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates) pursues or acquires for, or directs such opportunity to, itself or another person or entity or does not communicate such opportunity or information to the Corporation.
The Corporation reserves the right to amend or repeal any provisions contained in this Certificate of Incorporation from time to time and at any time in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred upon stockholders and directors are granted subject to such reservation.
* * * *
Form of Amended and Restated Bylaws of the Surviving Corporation
C-1
AMENDED AND RESTATED BY-LAWS
OF
TRC COMPANIES, INC.
A Delaware Corporation
(Adopted as of [ · ], 2017)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of TRC Companies, Inc., a Delaware corporation (the "Corporation"), in the State of Delaware shall be located at 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company. The registered office and/or registered agent of the Corporation may be changed from time to time by action of the board of directors.
Section 2. Other Offices. The Corporation may also have offices at such other places, both within and outside of the State of Delaware, as the board of directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the stockholders may be held each year for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting may be determined by resolution of the board of directors or as set by the president of the Corporation. No annual meeting of stockholders need be held if not required by the Corporation's certificate of incorporation or by the General Corporation Law of the State of Delaware (as amended from time to time (the "DGCL")).
Section 2. Special Meetings. Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships), and may be held at such time and place, within or outside of the State of Delaware, and/or by means of remote communication, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by two or more members of the board of directors, the president or the holders of shares entitled to cast not less than a majority of the votes at the meeting or the holders of fifty percent (50%) of the outstanding shares of any series or class of the Corporation's capital stock.
Section 3. Place of Meetings. The board of directors may designate any place, either within or outside of the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting is otherwise called, the place of meeting shall be the principal executive office of the Corporation.
Section 4. Notice. Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose(s) of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if mailed,
such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the Corporation. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting, and (2) the giving of such separate notice, and (3) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the Corporation or to the transfer agent. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
Section 5. Stockholders List. The officer who has charge of the stock ledger of the Corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Section 6. Quorum. Except as otherwise provided by applicable law or by the Corporation's certificate of incorporation, a majority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time in accordance with Section 7 of this Article II, until a quorum shall be present or represented.
Section 7. Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting, at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions
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of an applicable law or of the Corporation's certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question. Where a separate vote by class is required, the affirmative vote of the majority of shares of such class present in person or represented by proxy at the meeting shall be the act of such class, unless the question is one upon which by express provisions of an applicable law or of the Corporation's certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 9. Voting Rights. Except as otherwise provided by the DGCL or by the certificate of incorporation of the Corporation or any amendments thereto, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person(s) to act for him, her or it by proxy. Every proxy must be signed by the stockholder granting the proxy or by his, her or its attorney-in-fact. No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
Section 11. Action by Written Consent. Unless otherwise provided in the Corporation's certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent(s) in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent(s), shall be signed by the holders of outstanding shares of stock having not less than a majority of the shares entitled to vote, or, if greater, not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, or the Corporation's principal place of business, or an officer or agent of the Corporation having custody of the book(s) in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested, provided, however, that no consent(s) delivered by certified or registered mail shall be deemed delivered until such consent(s) are actually received at the registered office. All consents properly delivered in accordance with this Section 11 shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered to the Corporation as required by this Section 11, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent(s) of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
Section 12. Action by Electronic Transmission Consent. An electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section 12; provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the Corporation can determine
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(A) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the board of directors of the Corporation.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the board of directors.
Section 2. Number, Election and Term of Office. The number of directors which shall constitute the first board shall be one or more, which number may be increased or decreased from time to time by resolution of the board. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3. Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the Corporation's certificate of incorporation, the provisions of this Section 3 shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation.
Section 4. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
Section 5. Annual Meetings. The annual meeting of each newly elected board of directors shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of stockholders.
Section 6. Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board of directors and promptly communicated to all directors then in office. Special meetings of the board of directors may be called by or at the request of the president or vice president on at least 24 hours' notice to each director, either personally, by telephone, by mail, by telegraph and/or by electronic transmission. In like manner and on like notice, the president must call a special meeting on the written request of at least a majority of the directors.
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Section 7. Quorum, Required Vote and Adjournment. A majority of the total number of directors shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 8. Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee(s) shall have such name(s) as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
Section 9. Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that member's alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member(s) thereof present at any meeting and not disqualified from voting, whether or not such member(s) constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.
Section 10. Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this Section 10 shall constitute presence in person at the meeting.
Section 11. Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.
Section 12. Action by Written Consent. Unless otherwise restricted by the Corporation's certificate of incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing(s) or electronic transmission or transmissions are filed with the minutes of proceedings of the board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
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Section 1. Number. The officers of the Corporation shall be elected by the board of directors and shall consist of a chairman, if any is elected, a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.
Section 2. Election and Term of Office. The officers of the Corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon
thereafter as conveniently may be. The president shall appoint other officers to serve for such terms as he or she deems desirable. Vacancies may be filled or new offices created and filled at any
meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or
agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the Corporation
would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. Any vacancy
occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the
unexpired portion of the term by the board of directors then in office.
Section 5. Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her
also being a director of the Corporation.
Section 6. The Chairman of the Board. The Chairman of the Board, if one shall have been elected, shall be a member of the board and an officer of the Corporation. He shall perform the duties as may
from time to time be assigned to him by the board of directors.
Section 7. The President. The
president shall be the chief executive officer of the Corporation. The president (i) shall preside at all meetings of the stockholders and board of
directors at which he or she is present; (ii) subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the Corporation, and control
over its officers, agents and employees; and (iii) shall see that all orders and resolutions of the board of directors are carried into effect. The president shall have such other powers and
perform such other duties as may be prescribed by the board of directors or as may be provided in these by-laws.
Section 8. Vice Presidents. The
vice president, if any, or if there shall be more than one, the vice presidents in the order determined by the board of directors shall, in the absence or
disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice presidents shall also perform such other duties and have such other powers as
the board of directors, the president or these by-laws may, from time to time, prescribe.
Section 9. The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the
proceedings of the meetings in a book(s) to be kept for that purpose. Under the president's supervision, the secretary (i) shall give, or cause to be given, all notices required to be given by
these by-laws or by law; (ii) shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe; and (iii) shall
have custody of the corporate seal of the Corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it
may be attested by his or
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her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.
Section 10. The Treasurer and Assistant Treasurers. The treasurer (i) shall have the custody of the corporate funds and securities; (ii) shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation; (iii) shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the board of
directors; (iv) shall cause the funds of the Corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; (v) shall
render to the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the Corporation; and (vi) shall have such powers and perform
such duties as the board of directors, the president or these by-laws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the Corporation a bond (which
shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of
treasurer and for the restoration to the Corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in
the possession or under the control of the treasurer belonging to the Corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the
board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have
such other powers as the board of directors, the president or treasurer may, from time to time, prescribe.
Section 11. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such
duties as may from time to time be prescribed by resolution of the board of directors.
Section 12. Absence or Disability of Officers. In the case of the absence or disability of any officer of the Corporation and of any person hereby authorized to act in such officer's place during such
officer's absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may
select.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by (i) the chairman or vice chairman of the board of directors, or the president or a vice-president and (ii) by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the Corporation, certifying the number of shares owned by such holder in the Corporation; provided that the board of directors may provide by resolution or resolutions that some or all of the outstanding shares shall be uncertificated shares. If shares are certificated and such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the Corporation or its employee or (2) by a registrar, other than the Corporation or its employee, the signature of any such chairman of the board, president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer(s) who have signed, or whose facsimile signature(s) have been used on, any such certificate(s) shall cease to be such officer(s) of the Corporation whether because of death, resignation or otherwise before such certificate(s) have been delivered by the Corporation, such certificate(s) may nevertheless be issued and delivered as though the
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person or persons who signed such certificate(s) or whose facsimile signature(s) have been used thereon had not ceased to be such officer(s) of the Corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the Corporation. Shares of stock of the Corporation shall only be transferred on the books of the Corporation by the holder of record thereof or by such holder's attorney duly authorized in writing, upon surrender to the Corporation of the certificate(s) for such shares endorsed by the appropriate person(s), with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, if the shares so transferred are represented by certificates, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate(s), and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the Corporation.
Section 2. Lost Certificates. The
board of directors may direct a new certificate(s) to be issued in place of any certificate(s) previously issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new
certificate(s), the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate(s), or his or her
legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the loss, theft or destruction of
any such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board
of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not
be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be the close of business on the day immediately preceding the day on which notice is given, or if notice is waived, at the close of business on the day
immediately preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
Section 4. Fixing a Record Date for Action by Written Consent. In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix
a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified
or registered mail, return receipt requested. If no record date has been fixed by the board of directors and
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prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.
Section 5. Fixing a Record Date for Other Purposes. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights of the
stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
Section 6. Registered Stockholders. Prior to the surrender to the Corporation of the certificate(s) for a share(s) of stock represented by certificates with a request to record the transfer of such
share(s), or in the case of uncertificated shares prior to receipt of a request to record the transfer of such share(s), the Corporation may treat the registered owner as the person entitled to
receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The Corporation shall not be bound to recognize any equitable or other claim to
or interest in such share(s) on the part of any other person, whether or not it shall have express or other notice thereof.
Section 7. Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such
times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of
the same series. In case of default in the payment of any installment or call when such payment is due, the Corporation may proceed to collect the amount due in the same manner as any debt due the
Corporation.
Section 1. Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any director or officer of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "Proceeding") by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such person in connection with any such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 4 of this Article VI, the Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized in the specific case by the board of directors.
Section 2. Indemnification of Others. The Corporation shall have the power to indemnify and hold harmless, to the extent permitted by applicable law as it presently exists or may hereafter be amended,
any employee or agent of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she, or a person for whom he
or she is the legal representative, is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service
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with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.
Section 3. Prepayment of Expenses. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys' fees) incurred by any officer or director of
the Corporation, and may pay the expenses incurred by any employee or agent of the Corporation, in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent
required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it
should be ultimately determined that the person is not entitled to be indemnified under this Article VI or otherwise.
Section 4. Determination; Claim. If
a claim for indemnification (following the final disposition of such Proceeding) or advancement of expenses under this Article VI is not paid in full
within 60 days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification or payment of expenses under applicable law.
Section 5. Non-Exclusivity of Rights. The rights conferred on any person by this Article VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any
statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6. Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity against any liability
asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of the DGCL.
Section 7. Other Indemnification. The Corporation's obligation, if any, to indemnify or advance expenses to any person who was or is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses
from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
Section 8. Continuation of Indemnification. The rights to indemnification and to prepayment of expenses provided by, or granted pursuant to, this Article VI shall continue notwithstanding that the
person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.
Section 9. Amendment or Repeal. The
provisions of this Article VI shall constitute a contract between the Corporation, on the one hand, and, on the other hand, each individual who serves
or has served as a director or officer of the Corporation (whether before or after the adoption of these by-laws), in consideration of such person's performance of such services, and pursuant to this
Article VI the Corporation intends to be legally bound to each such current or former director or officer of the Corporation. With respect to current and former directors and officers of the
Corporation, the rights conferred under this Article VI are present contractual rights and such rights are fully vested, and shall be deemed to have vested fully, immediately upon adoption of
these by-laws. With respect to any directors or officers of the Corporation who commence service following adoption of these by-laws, the rights conferred under this provision shall be present
contractual rights and such
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rights shall fully vest, and be deemed to have vested fully, immediately upon such director or officer commencing service as a director or officer of the Corporation. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection (i) hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification or (ii) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in effect prior to the time of such repeal or modification.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the Corporation and all notes and other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer(s), agent(s) of the Corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.
Section 3. Contracts. The board of
directors may authorize any officer(s), or any agent(s), of the Corporation to enter into any contract or to execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 4. Loans. The Corporation
may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the Corporation or of its subsidiary,
including any officer or employee who is a director of the Corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to
benefit the Corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured or secured in such manner as the board of directors shall approve, including,
without limitation, a pledge of shares of stock of the Corporation. Nothing contained in this Section 4 shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal
year of the Corporation shall be fixed by resolution of the board of directors.
Section 6. Voting Securities Owned By Corporation. Voting securities in any other corporation held by the Corporation shall be voted by the president, unless the board of directors specifically confers authority
to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to
appoint proxies, with general power of substitution.
Section 7. Inspection of Books and Records. Stockholders may inspect book and records to the extent permitted by the DGCL.
Section 8. Section Headings. Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any
provision herein.
Section 9. Inconsistent Provisions. In the event that any provision of these by-laws is or becomes inconsistent with any provision of the Corporation's certificate of incorporation, the DGCL or any
other applicable law, such provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
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These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers.
Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director or officer or other employee of the Corporation to the Corporation or the Corporation's Stockholders, or any action asserting a claim for aiding and abetting any such breach of fiduciary duty, (iii) any action asserting a claim against the Corporation or any Director or officer or other employee of the Corporation arising pursuant to any provision of the DGCL or the Certificate of Incorporation or these Bylaws (in each case, as they may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any Director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be the Court of Chancery of the State of Delaware (the "Chancery Court") (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware).
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