EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

by and among

CARTESIAN, INC.,

CARTESIAN HOLDINGS, LLC,

and

CARTESIAN HOLDINGS, INC.

Dated as of March 21, 2018

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

Annex I – Conditions of the Offer

Index of Defined Terms

 

 

 

 

 

 

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of March 21, 2018 (as amended, supplemented or otherwise modified from time to time, and together with all exhibits and schedules hereto, this "Agreement"), is entered into by and among Cartesian Holdings, LLC, a Delaware limited liability company ("Parent"), Cartesian, Inc., a Delaware corporation (the "Company"), Cartesian Holdings, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub").

WHEREAS, Parent desires to acquire the Company on the terms and subject to the conditions of this Agreement;

WHEREAS, upon the terms and subject to the conditions of this Agreement, Merger Sub has agreed to commence (within the meaning of Rule 14D-2 under the Exchange Act) a cash tender offer (as it may be extended and amended from time to time as permitted under this Agreement, the "Offer") to acquire all of the outstanding shares of Company common stock, $0.05 par value per share (the "Shares" or "Company Common Stock") at a price per share of $0.40 (as such amount may be amended or adjusted in accordance with the terms of this Agreement, the "Offer Price"), net to the seller in cash, without interest and reduced by the amount of any withholding that is required under applicable Law, in accordance with Section 4.6;

WHEREAS, as soon as practicable following consummation of the Offer and receipt of the Company Required Vote if a Company Shareholder Meeting is required to approve the merger, Merger Sub will be merged with and into the Company, pursuant to which the Company would become a wholly owned subsidiary of Parent (the "Merger") upon the terms and subject to the conditions of this Agreement;

WHEREAS, the Board of Directors of the Company has (a) determined that this Agreement and the transactions contemplated by this Agreement, including the Offer and the Merger, are advisable for, fair to and in the best interests of the Company and its shareholders, (b) approved and adopted this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (c) resolved, subject to the terms of this Agreement, to recommend that the Company's shareholders accept the Offer and, if required, adopt this Agreement, and (d) approved the Support Agreements (as defined below);

WHEREAS, the Manager of Parent and the Board of Directors of Merger Sub have (a) determined that this Agreement and the transactions contemplated by this Agreement, including the Offer and the Merger, are advisable for, fair to and in the best interests of Parent and Merger Sub, respectively, and their respective shareholders, (b) approved and adopted this Agreement and the transactions contemplated hereby, including the Offer and the Merger;

WHEREAS, immediately prior to the execution of this Agreement, and as a condition to Parent and Merger Sub entering into this Agreement, the Company and Computershare Trust Company, N.A., as Rights Agent, have executed an amendment (the "Rights Agreement Amendment") to that certain Rights Agreement, dated the date hereof (the "Rights Agreement"),

 

 

so as to render the Rights issued thereunder (the "Rights") inapplicable to this Agreement and the transactions contemplated hereby;

WHEREAS, concurrent with the execution of this Agreement, and as a condition to Parent and Merger Sub entering into this Agreement, each of the Company's officers and directors listed on Schedule A has executed a Tender and Support Agreement, dated as of the date hereof, in favor of Parent and Merger Sub, irrevocably agreeing to, among other things, tender the shares of Company Common Stock beneficially owned (directly or indirectly) by each of them in the Offer (collectively, the "Support Agreements"); and

WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger and to prescribe certain conditions to the Offer and the Merger;

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

1.

THE OFFER

 

purchased in the Offer, (D) impose conditions or requirements to the Offer in addition to the Offer Conditions, (E) amend, modify or waive the Minimum Condition, (F) otherwise amend or modify any of the other terms of the Offer in a manner that adversely affects any holder of Shares in its capacity as such, (G) terminate the Offer or accelerate, extend or otherwise change the Expiration Time, in each case, except as provided in Section 1.1(c) or 1.1(d), or (H) provide any "subsequent offering period" (or any extension  thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be withdrawn prior to the Expiration Time (or any rescheduled Expiration Time) of the Offer, unless this Agreement is terminated in accordance with Section 10.

 

practicable after the Offer Acceptance Time (and in any event within three (3) business days) pay for such Shares.  Prior to the Offer Acceptance Time, Merger Sub shall enter into an agreement (in a form reasonably acceptable to the Company) with the Exchange Agent providing for the establishment and funding of the Payment Fund for distribution to the Company's shareholders of the aggregate Offer Price and the Merger Consideration to which such Company's shareholders shall become entitled pursuant to Section 3. Promptly after (and in any event no later than the third business day after) the Offer Acceptance Time, Parent shall deposit, or shall cause to be deposited with the Exchange Agent, cash sufficient to make the payment of the aggregate Offer Price payable pursuant to this section (the "Payment Fund").  The Payment Fund shall not be used for any purpose other than to pay the aggregate Offer Price in the Offer and the aggregate Merger Consideration in the Merger.

 

 

 

positions of Shares held in stock depositories, in each case as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer and the Merger (the date of the list used to determine the Persons to whom the Offer Documents and the Schedule 14D-9 are first disseminated, which date shall not be more than ten (10) business days prior to the date the Offer Documents and the Schedule 14D-9 are first disseminated, the "Shareholder List Date"). Subject to applicable Laws, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the transactions, including the Offer and the Merger, Parent and Merger Sub and their agents shall hold in confidence in accordance with the Confidentiality Agreement the information contained in any such labels, listings and files.

 

Company Board permitted under Section 8.7, (iv) the decision to terminate the Agreement pursuant to any provision of Section 10, (v) filling the vacancy in the Company Board that was occupied by the Independent Director, (vi) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (vii) any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company or the holders of Company Common Stock, or (viii) or any other action by the Company Board where there is a conflict of interest between Parent or Merger Sub, on one hand, or the holders of Shares that remain outstanding after the Offer Acceptance Time, on the other hand.  Approval of any such matter by the Independent Director shall be deemed to constitute authorization by the Company Board and no other action on the part of the Company, including any action by any Parent Director, shall be required to authorize any such matter.

2.	THE MERGER

 

Merger becomes effective upon filing the Certificate of Merger or such later date and time as provided by the Certificate of Merger and otherwise in accordance with applicable law.

3.	EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS

 

Shares of Company Common Stock that are canceled and retired pursuant to this Section 3.1(a) are hereinafter referred to as the "Excluded Shares."

Effective as of the Effective Time, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and (i) each certificate formerly representing any of the shares of Company Common Stock (other than Excluded Shares) and (ii) each uncertificated Share (an "Uncertificated Share") registered to a holder on the stock transfer books of the Company (other than Excluded Shares) shall thereafter represent only the right to receive the Merger Consideration, (each a "Certificate") shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefor upon surrender of such Certificate in accordance with Section 4.3.

 

unpaid as of the Effective Time with respect to such award of Company Restricted Shares regardless of any prior election the holder of any such award of Company Restricted Shares may have made with respect to the payment of such accrued but unpaid dividends.

4.	EXCHANGE OF CERTIFICATES FOR MERGER CONSIDERATION

 

 

other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

 

 

5.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as set forth in the disclosure schedule of the Company delivered to Parent concurrently herewith (the "Company Disclosure Schedule") (with specific reference to the section of this Agreement to which the information stated in such Company Disclosure Schedule relates; provided that (i) disclosure in any section of such Company Disclosure Schedule shall be deemed to be disclosed with respect to any other Section of this Agreement to the extent that it is reasonably apparent from the face of such disclosure that such disclosure is applicable or relevant to such other Section, and (ii) the mere inclusion of an item in such Company Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item has had or would have a Company Material Adverse Effect (as hereinafter defined)), the Company hereby represents and warrants to Parent and Merger Sub, as of the date hereof, as follows:

 

any period ending (or for which revenues or earnings are released) on or after the date hereof (it being understood that this clause (B) does not and shall not be deemed to apply to the underlying cause or causes of any such failure), (C) any change in federal, state, non-U.S. or local law, regulations, policies or procedures, or interpretations thereof, generally accepted accounting principles ("GAAP") or regulatory accounting requirements applicable or potentially applicable to the industries in which the Company or its Subsidiaries operate, (D) changes generally affecting the industries in which the Company or its Subsidiaries operate that are not specifically related to the Company and its Subsidiaries and do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, (E) changes in economic conditions (including changes in the prevailing interest rates) in the United States, in any region thereof, or in any non-U.S. or global economy that do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, (F) any attack on, or by, outbreak or escalation of hostilities or acts of terrorism involving, the United States, or any declaration of war by the United States Congress or any hurricane or other natural disaster or (G) (i) a demand for redemption of the Elutions Note (as defined in Section 5.2(a)) under Section 2.4(a) thereof, (ii) the initiation or prosecution of any legal action or arbitration to enforce or collect the Elutions Note or collect on or enforce the Elutions Note Guaranty (as defined in Section 5.2(a)) of the Elutions Note, (iii) the entry of any final judgment requiring the payment of all or any part of the Elutions Note or the Elutions Note Guaranty (including any interest, assessments, additional damages of any type and other charges paid or payable in connection with, or in respect of, such judgment or settlement), or (iv) any litigation costs (including reasonable and documented fees and expenses of counsel for the Company, or any of its Subsidiaries or their respective Affiliates) incurred by the Company or any of its Subsidiaries or their respective Affiliates in connection with any of the matters referenced in this subsection (G).  As used herein, "Subsidiary" means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or any other entity of which a majority of the shares of voting securities is at the time beneficially owned, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. For the avoidance of doubt, any reference to Subsidiary herein shall be deemed to include (i) the U.S. and Canadian based Subsidiaries, which are Cambridge Strategic Management Group, Inc., TWG Consulting, Inc., RVA Consulting LLC, TMNG Marketing LLC, TMNG Technologies, Inc., TMNG.com, Inc. and TMNG Canada Limited (collectively, the "Company's North America Subsidiaries"), and (ii) the foreign based Subsidiaries, which are TMNG Europe Limited, Cartesian Limited, Cambridge Adventis Limited, Farncombe France Limited Liability, Farncombe Technology Limited and Farncombe Engineering Services Limited (collectively, the "Company's European Subsidiaries").

 

respective shareholders, members, partners or other equity holders and Boards of Directors or other governing bodies (including committees of their respective Boards of Directors or other governing bodies) through the date hereof.

 

than upon the exercise of Company Options granted prior to such date or Company Restricted Shares granted prior to such date and vesting after such date and, in each case, disclosed in this Section 5.2(a) or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under the Company Stock Plans, or (B) issued or awarded any Company Options, Company Restricted Shares or other equity-based awards under the Company Stock Plans.

 

enforceable against the Company in accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency and similar laws affecting creditors' rights and remedies generally (the "Bankruptcy and Equity Exceptions").

 

as amended, and the rules and regulations of the SEC promulgated thereunder (the "Exchange Act").  Each of the Company SEC Reports, as amended prior to the date of this Agreement, complied as to form in all material respects with the applicable requirements of the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder (the "Securities Act") and the Exchange Act, each as in effect on the date so filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such subsequent filing).  None of the Company SEC Reports contained, when filed or, if amended or supplemented prior to the date hereof, as of the date of such amendment or supplement, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  There are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Reports.  To the Knowledge of the Company, as of the date hereof, none of the Company SEC Reports is subject to ongoing SEC review.  None of the Subsidiaries of the Company is required to file or furnish reports with the SEC pursuant to the Exchange Act.

 

the Company Board (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect the Company's ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal controls over financial reporting.  These disclosures were made in writing by management to the Company's auditors and audit committee and a copy has previously been made available to Parent.  The Company's disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of the Company as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act.

 

 

 

contributed or which any of Company sponsors or maintains (or has sponsored or maintained), or pursuant to which Company has any liability and which provides benefits to any employee, director or consultant of Company, and which are generally available to employees. Section 5.11(c) of the Company Disclosure Schedule contains a list of all Company Benefit Plans. Company has furnished or made available to Parent and Merger Sub true and complete copies of all Company Benefit Plans (including related insurance policies, service provider agreements, amendments, reports, summary plan descriptions, IRS determination letters, opinion letters, financial statements, and trust, funding and insurance agreements) and all employee handbooks, employee rules and regulations, if any. Each Company Benefit Plan has been operated and maintained in material compliance with its terms and with the requirements prescribed by all applicable legal requirements (including ERISA and the Code).

 

 

hand); or (ii) any "off balance sheet arrangements" (as defined in Item 303(a) of Regulation S-K under the Exchange Act).

 

respective terms, there is not under such lease any material existing default by the Company or such Subsidiary or, to the Knowledge of the Company, the lessors thereunder, or any event which with notice or lapse of time would constitute such a default, and in the case of real estate leases the Company or such Subsidiary quietly enjoys the premises provided for in such lease except, in each case, as would not reasonably be expected to result in, individually or in the aggregate, a Company Material Adverse Effect.  Except as would not reasonably be expected to have, in the aggregate, a Company Material Adverse Effect, to the Knowledge of the Company, there does not exist any condemnation or eminent domain proceeding that affects any Leased Real Property.

 

releases or threatened releases of hazardous, toxic, radioactive or dangerous materials or other materials regulated under Environmental Laws in, on, under or affecting any such property which would reasonably be expected to result in a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is subject to any agreement, order, judgment, decree, letter or memorandum by or with any Governmental Entity or third Person imposing any material liability or obligation pursuant to or under any Environmental Law that would reasonably be expected to result in a Company Material Adverse Effect.  To the Knowledge of the Company, the Company and its Subsidiaries are in compliance in all material respects with all Environmental Laws, including possessing all material permits required for its currently conducted operations under applicable Environmental Laws, except, in each case, for any such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect.  Notwithstanding any other provision of this Agreement to the contrary (including Section 5.12), the representations and warranties of the Company in this Section 5.19 constitute the sole representations and warranties of the Company with respect to any matter (including any liability) relating to Environmental Laws.

 

charge, complaint or claim of any sort against the Company or any Subsidiary of the Company pending or, to the Knowledge of the Company, threatened before any Governmental Entity, except for such charges, complaints or claims that would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

representation or warranty with respect to the Company, the Company's Subsidiaries, this Agreement or the transactions contemplated by this Agreement, or with respect to any other information provided or made available to the Parent, the Merger Sub or their representatives in connection with this Agreement or the transactions contemplated by this Agreement.

6.	REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Except as set forth in the disclosure schedule of Parent and Merger Sub delivered to the Company concurrently herewith (the "Parent Disclosure Schedule") (with specific reference to the section of this Agreement to which the information stated in such Parent Disclosure Schedule relates; provided that (i) disclosure in any section of such Parent Disclosure Schedule shall be deemed to be disclosed with respect to any other Section of this Agreement to the extent that it is reasonably apparent from the face of such disclosure that such disclosure is applicable or relevant to such other Section and (ii) the mere inclusion of an item in such Parent Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item has had or would have a Parent Material Adverse Effect (as hereinafter defined)), Parent and Merger Sub hereby represent and warrant to the Company, as of the date hereof, as follows:

 

Subsidiaries operate that are not specifically related to Parent and its Subsidiaries and do not have a materially disproportionate adverse effect on the Parent and its Subsidiaries, taken as a whole, (E) changes in economic conditions (including changes in the prevailing interest rates) in the United States, in any region thereof, or in any non-U.S. or global economy that do not have a materially disproportionate adverse effect on the Parent and its Subsidiaries, taken as a whole or (F) any attack on, or by, outbreak or escalation of hostilities or acts of terrorism involving, the United States, or any declaration of war by the United States Congress or any hurricane or other natural disaster.

 

 

relied solely upon its own investigation and analysis and the representations and warranties, covenants and agreements of the Company contained in this Agreement and Parent (a) acknowledges that, other than as set forth in this Agreement, none of the Company nor any of its respective directors, officers, employees, Affiliates, agents or representatives makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to Parent or its agents or representatives prior to the execution of this Agreement, and (b) agrees, to the fullest extent permitted by law, that none of the Company nor any of its respective directors, officers, employees, Affiliates, agents or representatives shall have any liability or responsibility whatsoever to Parent on any basis (including in contract, tort or otherwise) based upon any information provided or made available, or statements made, to Parent prior to the execution of this Agreement.

7.	COVENANTS RELATING TO CONDUCT OF BUSINESS

 

(iii) directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock (except pursuant to the exercise of Company Options or vesting of Company Restricted Shares outstanding as of the date hereof or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under the Company Stock Plans), or (iv) grant any stock appreciation rights or grant any Person any right to acquire any shares of its capital stock, or issue, or commit to issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale grant, disposition, pledge or other encumbrance of, any additional shares of capital stock (except pursuant to the exercise of Company Options or vesting of Company Restricted Shares or vesting or settlement of awards under the Company Stock Plans outstanding as of the date hereof), any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any additional shares of capital stock, or any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock outstanding on the date of this Agreement, in each case, except as required by any agreement in effect on the date hereof and as set forth on Section 7.2(a) of the Company Disclosure Schedule (true and correct copies of which have been delivered to Parent prior to the date of this Agreement);

 

 

8.	ADDITIONAL AGREEMENTS

 

time of the Company Shareholder Meeting, to comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. The Company shall use its commercially reasonable efforts to resolve, and each party agrees to consult and cooperate with the other party in resolving, all SEC comments with respect to the Proxy Statement as promptly as practicable after receipt thereof and to cause the Proxy Statement in definitive form to be cleared by the SEC. The Company agrees to consult with Parent prior to responding to SEC comments with respect to the preliminary Proxy Statement. Each of Parent, Merger Sub, and the Company agree to correct any information provided by it for use in the Proxy Statement which shall have become false or misleading and the Company shall promptly prepare and mail to its shareholders an amendment or supplement setting forth such correction. The Company shall, as soon as reasonably practicable, notify Parent of the receipt of any comments from the SEC with respect to the Proxy Statement and any request by the SEC for any amendments to the Proxy Statement or for additional information.

 

 

contained in this Agreement, if at any time after the purchase of Shares pursuant to the Offer by Merger Sub, the number of actually outstanding Shares owned by Merger Sub, together with any outstanding Shares owned by Parent and Parent's other affiliates, shall collectively represent at least 90% of the actually outstanding Shares, then Parent shall take all actions necessary and appropriate to cause the Merger to become effective as soon as practicable without holding a Company Shareholder Meeting.

 

 

entitled to the benefits of this Section 8.6, the burden of proof shall be on Parent and the Surviving Company to establish that an Indemnified Party is not so entitled.  As used in this Section 8.6(a), (A) the term "Claim" means any threatened, asserted, pending or completed action, suit or proceeding, or any inquiry or investigation, whether instituted by the Company, any Governmental Entity or any other party, or any other matter for which indemnification is permitted pursuant to Section 145 of the DGCL, that any Indemnified Party in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters that relate to such Indemnified Party's duties or service as a director or officer of the Company, any of its Subsidiaries, any employee benefit plan maintained by any of the foregoing at or prior to the Effective Time and any other Person at the request the Company or any of its Subsidiaries; and (B) the term "Expenses" means reasonable, out of pocket attorneys' fees and all other costs, expenses and obligations (including experts' fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, settling, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any Claim for which indemnification is authorized pursuant to this Section 8.6(a), including any action relating to a claim for indemnification or advancement brought by an Indemnified Party.

 

Period") that shall provide coverage otherwise available under the Company's existing primary and excess directors and officers liability insurance policies and the Company's existing primary and excess fiduciary liability insurance policies for claims made during the Run-Off Period based on actual or alleged wrongful acts occurring prior to the Run-Off Period.

 

confidentiality agreement (except for any portion of any such standstill or confidentiality agreement that restricts the ability of a Person to communicate an Alternative Proposal to Company Board), or anti-takeover laws.

 

or other similar agreement (an "Alternative Acquisition Agreement") relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 8.7(b)) or authorize, approve or publicly recommend an Alternative Proposal or any agreement, understanding or arrangement relating to an Alternative Proposal (other than an Acceptable Confidentiality Agreement in compliance with the terms of Section 8.7(b)).

 

Alternative Acquisition Agreement entered into prior to the expiration of such three-day period (or where applicable 48-hour period) to include a provision permitting such termination).

 

Company that describes the Company's receipt of an Alternative Proposal and the operation of this Agreement with respect thereto, or any "stop, look and listen" communication by the Company Board, shall not constitute a Company Recommendation Change or an approval or recommendation with respect to any Alternative Proposal.

 

financing terms thereof), regulatory, timing and other aspects of the proposal, as well as any modification to this Agreement that Parent and Merger Sub propose to make in accordance with Section 8.7(d)(ii), are more favorable to the Company's shareholders from a financial point of view than the transactions contemplated by this Agreement.

8.11	Working Capital Loan.

 

(the "Debenture"), each of which are dated the date of this Agreement and are attached hereto as Exhibits A, B and C, respectively.

9.	CONDITIONS PRECEDENT

10.	TERMINATION AND AMENDMENT

 

 

on the part of the Company of any of its covenants or agreements herein, and, in either such case, such breach has not been, or cannot be, cured within thirty (30) business days after notice to the Company; or

 

the amount of any unpaid fee or obligation at the publicly announced prime rate of the Wall Street Journal in effect from time to time from the date such fee or obligation was required to be paid.

11.	GENERAL PROVISIONS

 

waiver of this Agreement which decreases the Merger Consideration or which adversely affects the rights of the Company's shareholders hereunder without the approval of such shareholders. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

Cartesian Holdings, LLC

c/o Blackstreet Capital Holdings, LLC

5425 Wisconsin Ave, Suite 701
Chevy Chase, MD 20815
Attn:  Murry N. Gunty
Telephone: (240) 223-1333
Fax: (240) 223-1331

E-mail: mgunty@blackstreethold.com

with a copy to:

Manatt, Phelps & Phillips, LLP
1050 Connecticut Avenue, N.W., Suite 600
Washington, DC 20036
Attn: Alan Noskow
Telephone: (202) 585-6525
Fax: (202) 637-1595

E-mail: anoskow@manatt.com

Cartesian, Inc.

7300 College Boulevard, Suite 302

 

 

 

Overland Park, Kansas 66210

Attention: _____________

Facsimile: _____________

with a copy to:

Stinson Leonard Street LLP

1201 Walnut Street, Suite 2900

Kansas City, Missouri 64106

Attention: John A. Granda

Facsimile: (816) 412-1159

 

the use of a facsimile machine or e-mail delivery of a ".pdf" format data file as a defense to the formation or enforceability of a contract and each Party forever waives any such defense.

 

 

shareholders to pursue claims for damages and other relief, including equitable relief, for Parent's or Merger Sub's willful breach of this Agreement (provided, that the rights granted pursuant to this clause shall be enforceable on behalf of the shareholders only by the Company in its sole and absolute discretion), this Agreement (including the documents and instruments referred to herein) is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.

[Remainder of Page Left Blank Intentionally]

IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be executed by their respective officers hereunto duly authorized as of the date first above written.

 

	CARTESIAN, INC.
	By:	/s/  Donald J. Tringali
		Name Donald J. Tringali
		Title   Executive Chairman

 

ANNEX I

CONDITIONS OF THE OFFER

Capitalized terms used in this Annex I and not otherwise defined herein will have the meanings ascribed to them in the Agreement and Plan of Merger to which it is attached (the "Agreement").

 

true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) as of the date of the Agreement or as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case representation and warranty shall not have been true and correct as of such earlier date), except where the failure of any such representation or warranty to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect; (ii) the representation and warranty of the Company set forth in Section 5.8 (Absence of Certain Changes or Events) shall not have been true and correct of the date of the Agreement or as of the Expiration Date as though made on and as of such date and time (except to the extent that such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall not have been true and correct as of such earlier date); (iii) the representations and warranties of the Company set forth in Section 5.2 (Capitalization) and Section 5.3 (Authority; No Violation) shall not have been true and correct as of the date of the Agreement or as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall not have been true and correct as of such earlier date), except for de minimis inaccuracies; and (iv) the representations and warranties set forth in Section 5.1 (Corporation Organization) and Section 5.7 (Broker's Fees) shall not have been true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) in all material respects as of the date of the Agreement or as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall not have been true and correct in all material respects as of such earlier date);

The foregoing conditions are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part at any time and from time to time, in the sole discretion of Parent and Merger Sub; provided that the Minimum Condition may be waived by Parent and Merger Sub only with the prior written consent of the Company, which may be granted or withheld in the Company's sole discretion, in each case, subject to the terms of the Agreement and the applicable rules and regulations of the SEC. The failure by Parent or Merger

 

Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time.

 

 

 

 

Company Disclosure Schedule

The Company Disclosure Schedule has been omitted pursuant to Item 601(b)(2) of Regulation S-K. Cartesian, Inc. hereby undertakes to furnish supplemental copies of the Company Disclosure Schedule upon request by the SEC; provided, however, that the Company may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any portion of the omitted Company Disclosure Schedule.

 

 

EXHIBIT A

 

 

 

 

 

EXHIBIT B