AGREEMENT AND PLAN OF MERGER Dated as of April 25, 2006 Among MILLIPORE CORPORATION, CHARLESTON ACQUISITION CORP., And SEROLOGICALS CORPORATION
Exhibit
2.1
EXECUTION
COPY
AGREEMENT
AND PLAN OF MERGER
Dated
as
of April 25, 2006
Among
MILLIPORE
CORPORATION,
CHARLESTON
ACQUISITION CORP.,
And
SEROLOGICALS
CORPORATION
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AGREEMENT
AND PLAN OF MERGER (this “Agreement”)
dated
as of April 25, 2006, among Millipore Corporation, a Massachusetts corporation
(“Parent”),
Charleston Acquisition Corp., a Delaware corporation and a wholly owned
Subsidiary of Parent (“Sub”),
and
Serologicals Corporation, a Delaware corporation (the “Company”).
WHEREAS
the Board of Directors of each of the Company and Sub has approved and declared
advisable, and the Board of Directors of Parent has approved, this Agreement
and
the merger of Sub with and into the Company (the “Merger”),
upon
the terms and subject to the conditions set forth in this Agreement, whereby
each issued and outstanding share of common stock, par value $.01 per share,
of
the Company (“Company
Common Stock”),
other
than the Appraisal Shares and shares of Company Common Stock directly owned
by
Parent, Sub or the Company, together with the associated Rights, will be
converted into the right to receive $31.55 in cash; and
WHEREAS
Parent, Sub and the Company desire to make certain representations, warranties,
covenants and agreements in connection with the Merger and also to prescribe
various conditions to the Merger.
NOW,
THEREFORE, in consideration of the representations, warranties, covenants
and
agreements contained in this Agreement, and subject to the conditions set
forth
herein, the parties hereto agree as follows:
The
Merger
SECTION
1.01. The
Merger.
Upon the
terms and subject to the conditions set forth in this Agreement, and in
accordance with the General Corporation Law of the State of Delaware (the
“DGCL”),
Sub
shall be merged with and into the Company at the Effective Time. Following
the
Effective Time, the separate corporate existence of Sub shall cease and the
Company shall continue as the surviving corporation in the Merger (the
“Surviving
Corporation”)
and
shall succeed to and assume all the rights and obligations of Sub in accordance
with the DGCL.
SECTION
1.02. Closing.
The
closing of the Merger (the “Closing”)
will
take place at 10:00 a.m. on a date to be specified by the parties, which
shall be no later than the second business day after satisfaction or (to
the
extent permitted by law) waiver of the conditions set forth in Article VI
(other than those conditions that by their terms are to be satisfied at the
Closing, but subject to the satisfaction or (to the extent permitted by law)
waiver of those conditions), at the offices of Cravath, Swaine & ▇▇▇▇▇
LLP, Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
unless another time, date or place is agreed to in writing by Parent and
the
Company; provided,
however,
that if
all the conditions set forth in Article VI shall not have been satisfied
or (to
the extent permitted by law) waived on such second business day, then the
Closing shall take place on the first business day on which all such conditions
shall have been satisfied or (to the extent permitted by law) waived. The
date
on which the Closing occurs is referred to in this Agreement as the “Closing
Date”.
SECTION
1.03. Effective
Time.
Subject
to the provisions of this Agreement, as soon as practicable on the Closing
Date,
the parties shall file with the Secretary of State of the State of Delaware
a
certificate of merger (the “Certificate
of Merger”)
executed and acknowledged by the parties in accordance with the relevant
provisions of the DGCL and, as soon as practicable on or after the Closing
Date,
shall make all other filings or recordings required under the DGCL. The Merger
shall become effective upon the filing of the Certificate of Merger with
the
Secretary of State of the State of Delaware, or at such later time as Parent
and
the Company shall agree and shall specify in the Certificate of Merger (the
time
the Merger becomes effective being the “Effective
Time”).
SECTION
1.04. Effects
of the Merger.
The
Merger shall have the effects set forth in Section 259 of the
DGCL.
SECTION
1.05. Certificate
of Incorporation and By-laws. (a)
The
Amended and Restated Certificate of Incorporation (as amended) of the Company
(the “Company
Certificate”)
shall
be amended at the Effective Time to be in the form of Exhibit A and, as so
amended, such Company Certificate shall be the Restated Certificate of
Incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or by applicable law.
(b)
The
By-laws of Sub, as in effect immediately prior to the Effective Time, shall
be
the By-laws of the Surviving Corporation until thereafter changed or amended
as
provided therein or by applicable law.
SECTION
1.06. Directors.
The
directors of Sub immediately prior to the Effective Time shall be the directors
of the Surviving Corporation until the earlier of their resignation or removal
or until their respective successors are duly elected and qualified, as the
case
may be.
SECTION
1.07. Officers.
The
officers of the Company immediately prior to the Effective Time shall be
the
officers of the Surviving Corporation until the earlier of their resignation
or
removal or until their respective successors are duly elected and qualified,
as
the case may be.
Effect
of the Merger on the Capital Stock of the
Constituent
Corporations; Exchange of Certificates
SECTION
2.01. Effect
on Capital Stock.
At the
Effective Time, by virtue of the Merger and without any action on the part
of
the holder of any shares of Company Common Stock or any shares of capital
stock
of Parent or Sub:
(a)
Capital
Stock of Sub.
Each
issued and outstanding share of capital stock of Sub shall be converted into
and
become one validly issued, fully paid and nonassessable share of common stock,
par value $0.01 per share, of the Surviving Corporation.
(b)
Cancelation
of Treasury Stock and Parent-Owned Stock.
Each
share of Company Common Stock that is directly owned by the Company, Parent
or
Sub immediately prior to the Effective Time shall automatically be canceled
and
shall cease to exist, and no consideration shall be delivered in exchange
therefor.
(c)
Conversion
of Company Common Stock.
Each
share of Company Common Stock issued and outstanding immediately prior to
the
Effective Time (other than shares to be canceled in accordance with
Section 2.01(b) and the Appraisal Shares), together with the Rights
associated therewith, shall be converted into the right to receive $31.55
in
cash, without interest (the “Merger
Consideration”).
At
the Effective Time, all such shares of Company Common Stock and associated
Rights shall no longer be outstanding and shall automatically be canceled
and
shall cease to exist, and each holder of a certificate which immediately
prior
to the Effective Time represented any such shares of Company Common Stock
(each,
a “Certificate”)
shall
cease to have any rights with respect thereto, except the right to receive
the
Merger Consideration. The right of any holder of a Certificate to receive
the
Merger Consideration shall be subject to and reduced by the amount of any
withholding that is required under applicable tax law.
(d)
Appraisal
Rights.
Notwithstanding anything in this Agreement to the contrary, shares (the
“Appraisal
Shares”)
of
Company Common Stock issued and outstanding immediately prior to the Effective
Time that are held by any holder who is entitled to demand and properly demands
appraisal of such Appraisal Shares pursuant to, and who complies in all respects
with, the provisions of Section 262 of the DGCL (“Section 262”)
shall
not be converted into the right to receive the Merger Consideration as provided
in Section 2.01(c), but instead such holder shall be entitled to payment of
the fair value of such Appraisal Shares in accordance with the provisions
of
Section 262. At the Effective Time, all Appraisal Shares shall no longer be
outstanding, shall automatically be canceled and shall cease to exist, and
each
holder of Appraisal Shares shall cease to have any rights with respect thereto,
except the right to receive the fair value of such Appraisal Shares in
accordance with the provisions of Section 262. Notwithstanding the
foregoing, if any such holder shall fail to perfect or otherwise shall waive,
withdraw or lose the right to appraisal under Section 262, or a court of
competent jurisdiction shall determine that such holder is not entitled to
the
relief provided by Section 262, then the right of such holder to be paid
the fair value of such holder’s Appraisal Shares under Section 262 shall
cease and such Appraisal Shares shall be deemed to have been converted at
the
Effective Time into, and shall have become, the right to receive the Merger
Consideration as provided in Section 2.01(c). The Company shall serve
prompt notice to Parent of any demands for appraisal of any shares of Company
Common Stock, and Parent shall have the right to participate in and direct
all
negotiations and proceedings with respect to such demands. Prior to the
Effective Time, the Company shall not, without the prior written consent
of
Parent, voluntarily make any payment with respect to, or settle or offer
to
settle, any such demands, or agree to do any of the foregoing.
SECTION
2.02. Exchange
of Certificates. (a)
Paying
Agent.
Prior to
the Effective Time, Parent shall appoint Computershare Trust Company, N.A.
or
another comparable bank or trust company agreed to by Parent and the Company
to
act as paying agent (the “Paying
Agent”)
for
the payment of the Merger Consideration. At the Effective Time, Parent shall
deposit, or cause the Surviving Corporation to deposit, with the Paying Agent,
for the benefit of the holders of Certificates, cash in an amount sufficient
to
pay the aggregate Merger Consideration required to be paid pursuant to
Section 2.01(c) (such cash being hereinafter referred to as the
“Exchange
Fund”).
(b)
Exchange
Procedures.
As soon
as reasonably practicable after the Effective Time, Parent shall cause the
Paying Agent to mail to each holder of record of a Certificate (i) a form
of letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon proper
delivery of the Certificates to the Paying Agent and which shall be in customary
form and have such other provisions as Parent and the Company may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for the Merger Consideration. Each holder of record
of
a Certificate shall, upon surrender to the Paying Agent of such Certificate,
together with such letter of transmittal, duly executed, and such other
documents as may reasonably be required by the Paying Agent, be entitled
to
receive in exchange therefor the amount of cash which the number of shares
of
Company Common Stock (together with the associated Rights) previously
represented by such Certificate shall have been converted into the right
to
receive pursuant to Section 2.01(c), and the Certificate so surrendered
shall forthwith be canceled. In the event of a transfer of ownership of Company
Common Stock which is not registered in the transfer records of the Company,
payment of the Merger Consideration may be made to a person other than the
person in whose name the Certificate so surrendered is registered if such
Certificate shall be properly endorsed or otherwise be in proper form for
transfer and the person requesting such payment shall pay any transfer or
other
taxes required by reason of the payment of the Merger Consideration to a
person
other than the registered holder of such Certificate or establish to the
reasonable satisfaction of Parent that such taxes have been paid or are not
applicable. Until surrendered as contemplated by
this
Section 2.02(b), each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender
the
Merger Consideration which the holder thereof has the right to receive in
respect of such Certificate pursuant to this Article II. No interest shall
be paid or will accrue on any cash payable to holders of Certificates pursuant
to the provisions of this Article II.
(c)
No
Further Ownership Rights in Company Common Stock.
All cash
paid upon the surrender of Certificates in accordance with the terms of this
Article II shall be deemed to have been paid in full satisfaction of all
rights pertaining to the shares of Company Common Stock (together with the
associated Rights) formerly represented by such Certificates. At the close of
business on the day on which the Effective Time occurs, the stock transfer
books
of the Company shall be closed, and there shall be no further registration
of
transfers on the stock transfer books of the Surviving Corporation of the
shares
of Company Common Stock that were outstanding immediately prior to the Effective
Time. If, after the Effective Time, any Certificate is presented to the
Surviving Corporation for transfer, it shall be canceled against delivery
of
cash to the holder thereof as provided in this Article II.
(d)
Termination
of the Exchange Fund.
Any
portion of the Exchange Fund which remains undistributed to the holders of
the
Certificates for six months after the Effective Time shall be delivered to
Parent, upon demand, and any holders of the Certificates who have not
theretofore complied with this Article II shall thereafter look only to
Parent for, and Parent shall remain liable for, payment of their claim for
the
Merger Consideration.
(e)
No
Liability.
None of
Parent, Sub, the Company, the Surviving Corporation or the Paying Agent shall
be
liable to any person in respect of any cash from the Exchange Fund properly
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any Certificate shall not have been surrendered
prior
to two years after the Effective Time (or immediately prior to such earlier
date
on which any Merger Consideration would otherwise escheat to or become the
property of any Governmental Entity), any such Merger Consideration shall,
to
the extent permitted by applicable law, become the property of Parent, free
and
clear of all claims or interest of any person previously entitled
thereto.
(f)
Investment
of Exchange Fund.
The
Paying Agent shall invest the cash in the Exchange Fund as directed by Parent.
Any interest and other income resulting from such investments shall be paid
to
Parent.
(g)
Lost
Certificates.
If any
Certificate shall have been lost, stolen or destroyed, upon the making of
an
affidavit of that fact by the person claiming such Certificate to be lost,
stolen or destroyed and, if required by Parent, the posting by such person
of a
bond in such reasonable amount as Parent may direct as indemnity against
any
claim that may be made against it with respect to such Certificate, the Paying
Agent shall deliver in exchange for such lost, stolen or destroyed Certificate
the applicable Merger Consideration with respect thereto.
(h)
Withholding
Rights.
Parent,
the Surviving Corporation or the Paying Agent shall be entitled to deduct
and
withhold from the consideration otherwise payable pursuant to this Agreement
to
any holder of shares of Company Common Stock such amounts as Parent, the
Surviving Corporation or the Paying Agent is required to deduct and withhold
with respect to the making of such payment under the Internal Revenue Code
of
1986, as amended (the “Code”),
or
any provision of state, local or foreign tax law. To the extent that amounts
are
so withheld and paid over to the appropriate taxing authority by Parent,
the
Surviving Corporation or the Paying Agent, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the holder
of
the shares of Company Common Stock in respect of which such deduction and
withholding was made by Parent, the Surviving Corporation or the Paying
Agent.
Representations
and Warranties
SECTION
3.01. Representations
and Warranties of the Company.
Except
as set forth in the disclosure schedule (with specific reference to the
particular Section or subsection of this Agreement to which the information
set
forth in such disclosure schedule relates; provided,
however,
that
any information set forth in one section of such disclosure schedule shall
be
deemed to apply to each other Section or subsection thereof to which its
relevance is reasonably apparent on its face) delivered by the Company to
Parent
prior to the execution of this Agreement (the “Company
Disclosure Schedule”),
the
Company represents and warrants to Parent and Sub as follows:
(a)
Organization,
Standing and Corporate Power.
Each of
the Company and its Subsidiaries has been duly organized, and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, and has all requisite power
and
authority and possesses all governmental licenses, permits, authorizations
and
approvals necessary to enable it to use its corporate or other name and to
own,
lease or otherwise hold and operate its properties and other assets and to
carry
on its business as currently conducted, except where the failure to have
such
government licenses, permits, authorizations or approvals individually or
in the
aggregate has not had and would not reasonably be expected to have a Material
Adverse Effect. Each of the Company and its Subsidiaries is duly qualified
or
licensed to do business and is in good standing 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, other than in
such
jurisdictions where the failure to be so qualified or licensed individually
or
in the aggregate has not had and would not reasonably be expected to have
a
Material Adverse Effect. The Company has made available to Parent, prior
to the
execution of this Agreement, complete and accurate copies of the Company
Certificate and
its
By-laws (the “Company
By-laws”),
and
the comparable organizational documents of each of its Subsidiaries, in each
case as amended to the date hereof. The Company has made available to Parent
complete and accurate copies of the minutes (or, in the case of minutes that
have not yet been finalized, drafts thereof) of all meetings of the stockholders
of the Company and each of its Subsidiaries, the Boards of Directors of the
Company and each of its Subsidiaries and the committees of each of such Boards
of Directors, in each case held since January 1, 2003 and prior to the date
hereof.
(b)
Subsidiaries.
Section 3.01(b) of the Company Disclosure Schedule lists each of the
Subsidiaries of the Company and, for each such Subsidiary, the state of
incorporation or formation and, as of the date hereof, each jurisdiction
in
which such Subsidiary is qualified or licensed to do business. All the issued
and outstanding shares of capital stock of, or other equity interests in,
each
such Subsidiary have been validly issued and are fully paid and nonassessable
and are owned directly or indirectly by the Company free and clear of all
pledges, liens, charges, claims, options, mortgages, restrictions, encumbrances
or security interests of any kind or nature whatsoever (collectively,
“Liens”),
and
free of any restriction on the right to vote, sell or otherwise dispose of
such
capital stock or other equity interests. Except for the capital stock of,
or
voting securities or equity interests in, its Subsidiaries, the Company does
not
own, directly or indirectly, any capital stock of, or other voting securities
or
equity interests in, any corporation, partnership, joint venture, association
or
other entity.
(c)
Capital
Structure.
The
authorized capital stock of the Company consists of 115,000,000 shares of
Company Common Stock and 1,000,000 shares of preferred stock, par value
$.01 per share (the “Company
Preferred Stock”).
At
the close of business on April 21, 2006, (i) 34,179,421 shares of
Company Common Stock were issued and outstanding (including 19,339 shares
of Company Common Stock subject to vesting or other forfeiture restrictions
or
repurchase conditions (shares so subject, “Company
Restricted Stock”),
but
excluding shares of Company Common Stock held by the Company in its treasury),
(ii) 4,462,964 shares of Company Common Stock were held by the Company
in its treasury, (iii) 10,529,924 shares of Company Common Stock were
reserved and available for issuance pursuant to the Company’s 2005 Incentive
Plan, 2001 Stock Incentive Plan, Amended and Restated 1995 Non-Employee
Directors’ Stock Option Plan, Second Amended and Restated 1994 Omnibus Incentive
Plan, 1996 Employee Stock Purchase Plan (the “1996
ESPP”)
and
the United Kingdom Share Incentive Plan (the “UK
ESPP”
and,
together with the 1996 ESPP, the “ESPPs”)
(such
plans, collectively, the “Company
Stock Plans”),
of
which 1,957,681 shares of Company Common Stock were subject to outstanding
Company Stock Options, (iv) 8,789,729 shares of Company Common Stock
were reserved for issuance upon conversion of the 4.75% Convertible Senior
Subordinated Debentures due 2033 of the Company (the “Company
Debentures”),
(v) 101,421 shares of Company Common Stock were reserved for issuance with
respect to outstanding Company deferred stock units, (vi) 10,799 shares of
Company Common Stock were reserved for issuance with respect
to outstanding
Company
restricted stock units (and there were restricted stock units outstanding
(payable in cash) representing 19,442 shares of Company Common Stock),
(vii) a maximum of 91,424 shares of Company Common Stock could be
issued pursuant to outstanding Company Performance Share Unit Awards and
(viii) no shares of Company Preferred Stock were issued or outstanding or
were held by the Company as treasury shares. At the close of business on
April 21, 2006, 50,000 shares of Company Preferred Stock designated as
Series B Preferred Stock were reserved for issuance in connection with the
rights (the “Rights”)
to be
issued pursuant to the Rights Agreement, dated as of August 1, 1999,
between the Company and State Street Bank & Trust Company, N.A. (the
“Rights
Agreement”).
Except as set forth above in this Section 3.01(c), at the close of business
on April 21, 2006, no shares of capital stock or other voting securities or
equity interests of the Company were issued, reserved for issuance or
outstanding. There are no outstanding stock appreciation rights, “phantom” stock
rights, performance units, rights to receive shares of Company Common Stock
on a
deferred basis or other rights (other than Company Debentures, Company
Restricted Stock, Company Stock Options and rights under the ESPPs) that
are
linked to the value of Company Common Stock or the value of the Company or
any
part thereof granted under the Company Stock Plans or otherwise (collectively,
“Company
Stock-Based Awards”),
other
than the Company deferred stock units, the Company restricted stock units
and
the Company Performance Share Unit Awards. Section 3.01(c) of the Company
Disclosure Schedule sets forth a complete and accurate list, as of
April 21, 2006, of all (a) outstanding options to purchase shares of
Company Common Stock from the Company pursuant to the Company Stock Plans
or
otherwise (other than rights under the ESPPs) (together with any other stock
options granted after April 21, 2006, in accordance with the terms of this
Agreement, the “Company
Stock Options”),
the
grant dates, expiration dates, exercise or base prices (if applicable) and
the
names of the holders thereof, (b) all outstanding Company Stock-Based
Awards, the number of shares of Company Common Stock (or other stock) subject
thereto (or, in the case of Company Performance Share Unit Awards, the maximum
number of shares of Company Common Stock that could be issued with respect
thereto) and the names of the holders thereof and (c) all outstanding
shares of Company Restricted Stock, the grant dates, vesting schedules,
repurchase prices (if any) and names of the holders thereof. Each outstanding
Company Stock Option, Company Stock-Based Award and share of Company Restricted
Stock may, pursuant to its terms, be treated at the Effective Time as set
forth
in Section 5.04. The exercise price of each Company Stock Option is no less
than the fair market value (as defined in the applicable Company Stock Plan)
of
a share of Company Common Stock as determined on the date of grant of such
Company Stock Option. The number of shares of Company Common Stock that could
be
acquired (x) with accumulated payroll deductions under the 1996 ESPP at the
close of business on June 30, 2006 (assuming (1) the market price of a share
of
Company Common Stock as of the close of business on such date is equal to
the
Merger Consideration, (2) such date represents the last day of the relevant
Purchase Period (as defined in the 1996 ESPP) and (3) payroll deductions
continue at the current rate) will not exceed 13,000 shares, and (y) with
accumulated payroll deductions under the UK ESPP at the close of business
on May
23, 2006 (1) assuming the fair market
value
of
a share of Company Common Stock at all relevant times on such date is equal
to
the Merger Consideration, (2) assuming payroll deductions continue at the
current rate, (3) assuming the exchange rate at all relevant times is 1.75
U.S.
dollars per 1.00 British pound and (4) including any matching shares that
may be
acquired pursuant to the UK ESPP) will not exceed 2,400 shares. All outstanding
shares of capital stock of the Company are, and all shares which may be issued
pursuant to the Company Debentures, Company Stock Options or Company Stock-Based
Awards will be, when issued in accordance with the terms thereof, duly
authorized, validly issued, fully paid and nonassessable and not subject
to
preemptive rights. From April 21, 2006, until the date of this Agreement,
there
have been no issuances by the Company of shares of capital stock of, or other
equity or voting interests in, the Company, other than the issuance of shares
of
Company Common Stock pursuant to the exercise of Company Stock Options, Company
Stock-Based Awards and Company Debentures outstanding as of April 21, 2006,
in
accordance with their terms as in effect on April 21, 2006. Except for the
Company Debentures, there are no bonds, debentures, notes or other indebtedness
of the Company having the right to vote (or convertible into, or exchangeable
for, securities having the right to vote) on any matters on which stockholders
of the Company may vote. Except as set forth above in this Section 3.01(c),
as of the date of this Agreement, (x) there are not issued, reserved for
issuance or outstanding (A) any shares of capital stock or other voting
securities or equity interests of the Company, (B) any securities of the
Company convertible into or exchangeable or exercisable for shares of capital
stock or other voting securities or equity interests of the Company or
(C) any warrants, calls, options or other rights to acquire from the
Company or any of its Subsidiaries, and no obligation of the Company or any
of
its Subsidiaries to issue, any capital stock, voting securities, equity
interests or securities convertible into or exchangeable or exercisable for
capital stock or voting securities of the Company and (y) there are not any
outstanding obligations of the Company or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any such securities or to issue, deliver or sell,
or
cause to be issued, delivered or sold, any such securities. Neither the
Company nor any of its Subsidiaries is a party to any voting agreement with
respect to the voting of any such securities. Except as set forth above in
this
Section 3.01(c), there are no outstanding (1) securities of the
Company or any of its Subsidiaries convertible into or exchangeable or
exercisable for shares of capital stock or voting securities or equity interests
of any Subsidiary of the Company, (2) warrants, calls, options or other
rights to acquire from the Company or any of its Subsidiaries, and no obligation
of the Company or any of its Subsidiaries to issue, any capital stock, voting
securities, equity interests or securities convertible into or exchangeable
or
exercisable for capital stock or voting securities of any Subsidiary of the
Company or (3) obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any such outstanding securities or
to
issue, deliver or sell, or cause to be issued, delivered or sold, any such
securities.
(d)
Authority;
Noncontravention.
The
Company has all requisite corporate power and authority to execute and deliver
this Agreement and, subject to receipt of the Stockholder Approval, to
consummate the transactions contemplated by this Agreement. The execution
and
delivery of this Agreement by the Company and the consummation by the Company
of
the transactions contemplated by this Agreement have been duly authorized
by all
necessary corporate action on the part of the Company and no other corporate
proceedings on the part of the Company are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby, subject, in the case
of
the consummation of the Merger, to the obtaining of the Stockholder Approval.
This Agreement has been duly executed and delivered by the Company and, assuming
the due authorization, execution and delivery by each of the other parties
hereto, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
the
rights of creditors generally and the availability of equitable remedies
(regardless of whether considered in a proceeding at law or in equity). The
Board of Directors of the Company, at a meeting duly called and held at which
a
quorum of directors of the Company were present, duly and by a unanimous
vote of
those present adopted resolutions (i) approving and declaring advisable
this Agreement, the Merger and the other transactions contemplated by this
Agreement, (ii) declaring that it is in the best interests of the
stockholders of the Company that the Company enter into this Agreement and
consummate the Merger and the other transactions contemplated by this Agreement
on the terms and subject to the conditions set forth in this Agreement,
(iii) directing that the adoption of this Agreement be submitted as
promptly as practicable to a vote at a meeting of the stockholders of the
Company and (iv) recommending that the stockholders of the Company adopt
this Agreement, which resolutions, as of the date of this Agreement, have
not
been subsequently rescinded, modified or withdrawn in any way. The execution
and
delivery of this Agreement do not, and the consummation of the Merger and
the
other transactions contemplated by this Agreement and compliance by the Company
and its Subsidiaries with the provisions of this Agreement will not, conflict
with, or result in any violation or breach of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancelation or acceleration of any obligation or to the loss of a benefit
under,
or result in the creation of any Lien in or upon any of the properties or
other
assets of the Company or any of its
Subsidiaries
under, (x) the Company Certificate or the Company By-laws or the comparable
organizational documents of any of its Subsidiaries, (y) any loan or credit
agreement, bond, debenture, note, mortgage, indenture, lease, sublease, supply
agreement, license agreement, development agreement or other contract,
agreement, obligation, commitment, arrangement, understanding, instrument,
permit, franchise or license, whether oral or written (each, including all
amendments thereto, a “Contract”),
to
which the Company or any of its Subsidiaries is a party or any of their
respective properties or other assets is subject or (z) subject to the
obtaining of the Stockholder Approval and the governmental filings and other
matters referred to in the following sentence, any (A) statute, law,
ordinance, rule or regulation applicable to the Company or any of
its Subsidiaries
or their respective properties or other assets or (B) order, writ,
injunction, decree, judgment or stipulation, in each case applicable to the
Company or any of its Subsidiaries or their respective properties or other
assets, other than, in the case of clauses (y) and (z), any such conflicts,
violations, breaches, defaults, rights, losses or Liens that individually
or in
the aggregate have not had and would not reasonably be expected to have a
Material Adverse Effect. No consent, approval, order or authorization of,
action
by or in respect of, or registration, declaration or filing with, any Federal,
state, local or foreign government, any court, administrative, regulatory
or
other governmental agency, commission or authority or any non-governmental
self-regulatory agency, commission or authority (each, a “Governmental
Entity”)
is
required by or with respect to the Company or any of its Subsidiaries in
connection with the execution and delivery of this Agreement by the Company
or
the consummation of the Merger or the other transactions contemplated by
this
Agreement, except for (1) the filing of a premerger notification and report
form by the Company under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of
1976, as amended (including the rules and regulations promulgated thereunder,
the “HSR
Act”),
and
the receipt, termination or expiration, as applicable, of approvals or waiting
periods required under the HSR Act or any other applicable foreign competition,
merger control, antitrust or similar law or regulation, (2) the filing with
the U.S. Securities and Exchange Commission (the “SEC”)
of
(A) a proxy statement relating to the adoption by the stockholders of the
Company of this Agreement (as amended or supplemented from time to time,
the
“Proxy
Statement”)
and
(B) such reports under the Securities Exchange Act of 1934, as amended
(including the rules and regulations promulgated thereunder, the “Exchange
Act”),
as
may be required in connection with this Agreement and the transactions
contemplated by this Agreement, (3) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware and appropriate documents
with the relevant authorities of other states in which the Company or any
of its
Subsidiaries is qualified to do business, (4) any filings required under
the rules and regulations of the Nasdaq National Market and (5) such other
consents, approvals, orders, authorizations, actions, registrations,
declarations and filings the failure of which to be obtained or made
individually or in the aggregate has not had and would not reasonably be
expected to have a Material Adverse Effect.
(e)
Company
SEC Documents. (i)
The
Company has filed or furnished all reports, schedules, forms, statements
and
other documents (including exhibits and other information incorporated therein)
with the SEC required to be filed or furnished by the Company since January
1,
2003 (the “Company
SEC Documents”).
As of
their respective filing dates, the Company SEC Documents were prepared in
accordance with, in all material respects, the requirements of the Securities
Act of 1933, as amended (including the rules and regulations promulgated
thereunder, the “Securities
Act”),
the
Exchange Act and the Sarbanes Oxley Act of 2002 (including the rules and
regulations promulgated thereunder, “SOX”)
applicable to such Company SEC Documents, and none of the Company SEC Documents
contained, when filed or furnished, any untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Except to the extent that
information contained in any Company SEC Document has been revised, amended,
supplemented or superseded by a later filed Company SEC Document, none of
the
Company SEC Documents contains any untrue statement of a material fact or
omits
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
were made, not misleading, which individually or in the aggregate would require,
pursuant to the Exchange Act or the Securities Act, an amendment, supplement
or
corrective filing to any such Company SEC Document. At the time it was filed,
each of the financial statements (including the related notes) of the Company
included in the Company SEC Documents was prepared in accordance with, in
all
material respects, the applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, was prepared in
accordance with generally accepted accounting principles in the United States
(“GAAP”)
(except, in the case of unaudited statements, as permitted by the rules and
regulations of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly presented
in all material respects the consolidated financial position of the Company
and
its consolidated Subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit adjustments).
Except as disclosed in the Company SEC Documents filed or furnished by the
Company prior to the date of this Agreement (the “Filed
Company SEC Documents”),
neither the Company nor any of its Subsidiaries has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
which individually or in the aggregate have had or would reasonably be expected
to have a Material Adverse Effect. None of the Subsidiaries of the Company
are,
or have at any time since January 1, 2003 been, subject to the reporting
requirements of Sections 13(a) and 15(d) of the Exchange Act.
(ii) Neither
the Company nor any of its Subsidiaries has any outstanding, or has arranged
any
outstanding, “extensions of credit” to directors or executive officers within
the meaning of Section 402 of SOX.
(iii) The
Company maintains a system of “internal control over financial reporting” (as
defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) designed
to
provide reasonable assurance (A) that transactions are recorded as necessary
to
permit preparation of financial statements in accordance with GAAP, (B) that
receipts and expenditures of the Company are being made only in accordance
with
authorization of management and (C) regarding prevention or timely detection
of
the unauthorized acquisition, use or disposition of the Company’s assets that
could have a material effect on the Company’s financial statements.
(iv) The
Company’s “disclosure controls and procedures” (as defined in Rules 13a-15(e)
and 15d-15(e) under the Exchange Act) are reasonably designed to ensure that
all
information (both financial and non-financial) 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 information is accumulated
and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications of
the
chief executive officer and chief financial officer of the Company required
under the Exchange Act with respect to such reports.
(v) Neither
the Company nor any of its Subsidiaries is a party to, or has any commitment
to
become a party to, any joint venture, off-balance sheet partnership or any
similar Contract (including any Contract or arrangement relating to any
transaction or relationship between or among the Company or any of its
Subsidiaries, on the one hand, and any unconsolidated Affiliate, including
any
structured finance, special purpose or limited purpose entity or person,
on the
other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a)
of Regulation S-K of the SEC)), where the result, purpose or intended effect
of
such Contract is to avoid disclosure of any material transaction involving,
or
material liabilities of, the Company or any of its Subsidiaries in the Company’s
or such Subsidiary’s published financial statements or other Company SEC
Documents.
(vi) Since
January 1, 2003, the Company has not received any oral or written notification
of any (x) “significant deficiency” or (y) “material weakness” in the Company’s
internal controls over financial reporting. There is no outstanding “significant
deficiency” or “material weakness” which the Company’s independent accountants
certify has not been appropriately and adequately remedied by the Company.
For
purposes of this Agreement, the terms “significant deficiency” and “material
weakness” shall have the meanings assigned to them in the Public Company
Accounting Oversight Board’s Auditing Standard No. 2, as in effect on the
date hereof.
(f)
Information
Supplied.
None of
the information supplied or to be supplied by or on behalf of the Company
specifically for inclusion or incorporation by reference in the Proxy Statement
will, at the date it is first mailed to the stockholders of the Company and
at
the time of the Stockholders’ 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 therein, in light of the
circumstances under which they are made, not misleading, except that no
representation or warranty is made by the Company with respect to statements
made or incorporated by reference therein based on information supplied by
or on
behalf of Parent or Sub in writing specifically for inclusion
or incorporation by reference in the Proxy Statement. The Proxy Statement
will
comply as to form in all material respects with the requirements of the Exchange
Act.
(g)
Absence
of Certain Changes or Events.
Except
for liabilities incurred in connection with this Agreement and except as
disclosed in the Filed Company SEC Documents or as expressly permitted pursuant
to Section 4.01(a)(i) through (xvi), since
the
date of the most recent audited financial statements included in the Filed
Company SEC Documents,
the
Company and its Subsidiaries have conducted their respective businesses only
in
the ordinary course consistent with past practice, and there has not been
any
Material Adverse Change, and from such date until the date hereof there has
not
been (i) any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to any capital
stock of the Company or any of its Subsidiaries, other than dividends or
distributions by a direct or indirect wholly owned Subsidiary of the Company
to
its shareholders, (ii) any purchase, redemption or other acquisition by the
Company or any of its Subsidiaries of any shares of capital stock or any
other
securities of the Company or any of its Subsidiaries or any options, warrants,
calls or rights to acquire such shares or other securities, (iii) any
split, combination or reclassification of any capital stock of the Company
or
any of its Subsidiaries or any issuance or the authorization of any issuance
of
any other securities in respect of, in lieu of or in substitution for shares
of
their respective capital stock, (iv) (A) any granting by the Company
or any of its Subsidiaries to any current or former director, officer, employee,
independent contractor or consultant of the Company or any of its Subsidiaries
(each, a “Participant”)
of any
increase in compensation, bonus or fringe or other benefits or any granting
or
payment of any type of compensation or benefits to any Participant not
previously receiving or entitled to receive such type of compensation or
benefits, except as was required under any Company Benefit Agreement or Company
Benefit Plan in effect as of the date of the most recent audited financial
statements included in the Filed Company SEC Documents, and except for grants
of
bonus opportunities and increases in base compensation or benefits in each
case
in the ordinary course of business consistent with past practice, (B) any
granting or payment by the Company or any of its Subsidiaries to any Participant
of (1) any severance, termination, change in control or similar pay or
benefits or any increases therein, or (2) any right to receive any severance,
termination, change in control or similar pay or benefits, in each case except
as was required under any Company Benefit Agreement or Company Benefit Plan
in
effect as of the date of the most recent audited financial statements included
in the Filed Company SEC Documents, (C) any entry by the Company or any of
its Subsidiaries into, or any amendment or termination of, (1) any
employment, deferred compensation, consulting, severance, change of control,
termination, indemnification, employee benefit, loan, stock repurchase or
similar Contract between the Company or any of its Subsidiaries, on the one
hand, and any Participant, on the other hand, or (2) any Contract between
the Company or any of its Subsidiaries, on the one hand, and any Participant,
on
the other hand, the benefits of which are contingent, or the terms of which
are
materially altered, upon the occurrence of a
transaction involving the Company of a nature contemplated by this Agreement
(all such Contracts under this clause (C), including any such Contract
which is entered into on or
after
the
date of this Agreement, collectively, “Company
Benefit Agreements”),
(D) any payment of any benefit under, or the grant of any award under, or
any amendment to, or termination of, any bonus, incentive, performance or
other
compensation plan or arrangement, Company Benefit Agreement or Company Benefit
Plan (including in respect of Company Stock Options, Company Restricted Stock,
Company Stock-Based Awards, rights under the ESPPs, “phantom” stock, stock
appreciation rights, “phantom” stock rights, restricted stock units, deferred
stock units, performance stock units or other stock-based or stock-related
awards or the removal or modification of any restrictions in any Company
Benefit
Agreement or Company Benefit Plan or on any awards made thereunder), except
as
required to comply with applicable law or any Company Benefit Agreement or
Company Benefit Plan in effect as of the date of the most recent audited
financial statements included in the Filed Company SEC Documents, and except
as
expressly permitted by clause (A) of this Section 3.01(g)(iv),
(E) the taking of any action to fund or in any other way secure the payment
of compensation or benefits under any Company Benefit Plan or Company Benefit
Agreement or (F) the taking of any action to accelerate the vesting or
payment of any compensation or benefits under any Company Benefit Plan or
Company Benefit Agreement, (v) any damage, destruction or loss, whether or
not covered by insurance, that individually or in the aggregate has had or
would
reasonably be expected to have a Material Adverse Effect, (vi) any change
in
accounting methods, principles or practices by the Company materially affecting
its assets, liabilities or businesses, except insofar as may have been required
by a change in GAAP or (vii) any material tax election or any settlement or
compromise of any material income tax liability.
(h)
Litigation.
Except
as disclosed in the Filed Company SEC Documents, there is no suit, action
or
proceeding pending or, to the Knowledge of the Company, threatened against
the
Company or any of its Subsidiaries or any of their respective assets that
individually or in the aggregate has had or would reasonably be expected
to have
a Material Adverse Effect, nor is there any judgment, decree, injunction,
rule
or order of any Governmental Entity or arbitrator outstanding against, or,
to
the Knowledge of the Company, investigation by any Governmental Entity
involving, the Company or any of its Subsidiaries or any of their respective
assets that individually or in the aggregate has had or would
reasonably be expected to
have a
Material Adverse Effect.
(i)
Contracts.
Except
as disclosed in the Filed Company SEC Documents and except with respect to
licenses and other agreements relating to intellectual property, which are
the
subject of Section 3.01(p), as of the date hereof, neither the Company nor
any of its Subsidiaries is a party to, and none of their respective properties
or other assets is subject to, any Contract that is of a nature required
to be
filed as an exhibit to a report or filing under the Securities Act or the
Exchange Act. None of the Company, any of its Subsidiaries
or, to the Knowledge of the Company, any other party thereto is in violation
of
or in default under (nor does there exist any condition which upon the passage
of time or the giving of notice or both would cause such a violation of or
default under) any Contract to which it is a party or by which it or any
of its
properties or other assets is bound, except for violations or defaults that
individually or in the aggregate have not had and would not reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any of
its
Subsidiaries has entered into any Contract with any Affiliate of the Company
that is currently in effect other than agreements that are disclosed in the
Filed Company SEC Documents. Neither the Company nor any of its Subsidiaries
is
a party to or otherwise bound by any Contract or covenant restricting the
Company’s or any of its Subsidiaries’ ability to compete or by any Contract or
covenant restricting in any material respect the research, development,
distribution, sale, supply, license, marketing or manufacturing of products
or
services of the Company or any of its Subsidiaries.
(j)
Compliance
with Laws; Environmental Matters. (i) Except
with respect to Environmental Laws, the Employee Retirement Income Security
Act
of 1974, as amended (“ERISA”)
and
taxes, which are the subjects of Sections 3.01(j)(ii), 3.01(l) and 3.01(n),
respectively, each of the Company and its Subsidiaries is in compliance with
all
statutes, laws, ordinances, rules, regulations, judgments, orders and decrees
of
all Governmental Entities (collectively, “Legal
Provisions”)
applicable to it (or, to the extent necessary to carry on its business and
operations as currently conducted, its customers), its properties, facilities
or
other assets, its business or operations or any product that is developed,
manufactured, tested, distributed and/or marketed by it, except for failures
to
be in compliance that individually or in the aggregate have not had and would
not reasonably be expected to have a Material Adverse Effect. Each of the
Company and its Subsidiaries has in effect all approvals, authorizations,
certificates, filings, franchises, licenses, notices and permits of or with
all
Governmental Entities (collectively, “Permits”),
including all Permits under the Federal Food, Drug and Cosmetic Act of 1938,
as
amended, and the rules and regulations promulgated thereunder, and all required
certifications of the United States Department of Agriculture, necessary
for it
to own, lease or operate its properties and other assets and to carry on
its
business and operations as currently conducted, except where the failure
to have
such Permits individually or in the aggregate has not had and would not
reasonably be expected to have a Material Adverse Effect. There has occurred
no
default under, or violation of, any such Permit, except for any such default
or
violation that individually or in the aggregate has not had and would not
reasonably be expected to have a Material Adverse Effect. The consummation
of
the Merger by the Company, in and of itself, would not cause the revocation
or
cancelation of any such Permit that individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect. No action, demand,
requirement or investigation by any Governmental Entity, including any written
notice or warning from any Governmental Entity regarding deficiencies in
compliance with any Legal Provision, and no suit, action or proceeding by
any
other person, in each case with respect
to the Company or any of its Subsidiaries or any of their respective properties,
facilities or other assets or products, under any Legal Provision is pending
or,
to the Knowledge of the Company, threatened, other than, in each case, those
the
outcome of which individually or in the aggregate have not had and would
not
reasonably be expected to have a Material Adverse Effect.
(ii) Except
for those matters that individually or in the aggregate have not had and
would
not reasonably be expected to have a Material Adverse Effect: (A) each of
the Company and its Subsidiaries is, and has been, in compliance with all
Environmental Laws and has obtained and complied with all Permits required
under
any Environmental Laws to own, lease or operate its properties or other assets
and to carry on its business and operations as currently conducted;
(B) there have been no Releases or threatened Releases of Hazardous
Materials in, on, under or affecting any properties currently or formerly
owned,
leased or operated by the Company, any of its Subsidiaries or any of its
former
Subsidiaries; (C) there is no investigation, suit, claim, action or
proceeding pending, or to the Knowledge of the Company, threatened against
or
affecting the Company or any of its Subsidiaries relating to or arising under
Environmental Laws, and neither the Company nor any of its Subsidiaries has
received any notice of any such investigation, suit, claim, action or
proceeding; (D) neither the Company nor any of its Subsidiaries has entered
into or assumed by Contract or operation of law or otherwise, any obligation,
liability, order, settlement, judgment, injunction or decree relating to
or
arising under Environmental Laws; and (E) to the Knowledge of the Company,
there are no facts, circumstances or conditions that would reasonably be
expected to form the basis for any investigation, suit, claim, action,
proceeding, compliance obligation or liability against or affecting the Company
or any of its Subsidiaries relating to or arising under Environmental Laws.
The
term “Environmental
Laws”
means
all applicable Federal, state, local and foreign laws, statutes, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices, Permits, treaties or binding Contracts issued, promulgated or entered
into by any Governmental Entity, relating in any way to the environment,
preservation or reclamation of natural resources, the presence, management,
Release or threat of Release of, or exposure to, Hazardous Materials, or
to
human health and safety. The term “Hazardous
Materials”
means
(1) petroleum products and by-products, asbestos and asbestos-containing
materials, urea formaldehyde foam insulation, medical or infectious wastes,
polychlorinated biphenyls, radon gas, radioactive substances,
chlorofluorocarbons and all other ozone-depleting substances or (2) any
chemical, material, substance, waste, pollutant or contaminant that is
prohibited, limited or regulated by or pursuant to any Environmental Law.
The
term “Release”
means
any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing or migrating into or through
the environment or any natural or man-made structure.
(k)
Absence
of Changes in Company Benefit Plans; Labor Relations. (i)
From the date of the most recent audited financial statements included in
the
Filed Company SEC Documents to the date of this Agreement, there has not
been
any adoption, amendment or termination by the Company or any of its Subsidiaries
of any collective bargaining agreement or any employment, bonus, pension,
profit
sharing, deferred compensation, incentive compensation, stock ownership,
stock
purchase, stock appreciation, restricted stock, stock option, “phantom” stock,
performance, retirement, thrift, savings, stock bonus, paid time off,
perquisite, fringe benefit, vacation, severance, disability, death benefit,
hospitalization, medical, welfare benefit or other plan, program, policy,
arrangement, agreement or understanding (whether or not legally binding)
maintained, contributed to or required to be maintained or contributed to
by the
Company or any of its Subsidiaries or any other person or entity that, together
with the Company, is treated as a single employer under Section 414(b),
(c), (m) or (o) of the Code (each, a “Commonly
Controlled Entity”),
in
each case providing benefits to any Participant, but not including the Company
Benefit Agreements (all such plans, programs, policies, arrangements, agreements
and understandings, including any such plan, program, policy, arrangement,
agreement or understanding entered into or adopted on or after the date of
this
Agreement, collectively, the “Company
Benefit Plans”),
or
any change in any actuarial or other assumption used to calculate funding
obligations with respect to any Company Pension Plan, or any change in the
manner in which contributions to any Company Pension Plan are made or the
basis
on which such contributions are determined, other than amendments or other
changes as required to ensure that such Company Pension Plan is not then
out of
compliance with applicable law, or reasonably determined by the Company to
be
necessary or appropriate to preserve the qualified status of a Company Pension
Plan under Section 401(a) of the Code. Except as disclosed in the Filed
Company SEC Documents, as of the date of this Agreement, there are not any
Company Benefit Agreements.
(ii) There
are
no collective bargaining or other labor union agreements to which the Company
or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound. No employees of the Company or any of its Subsidiaries
are or since January 1, 2003, have been, represented by any union with
respect to their employment by the Company or such Subsidiary. There is not
pending, and, since January 1, 2003, there has not been, any labor dispute,
labor strike, union organization attempt or work stoppage, slowdown or lockout
involving the Company or any of its Subsidiaries. Neither the Company nor
any of
its Subsidiaries is, or since January 1, 2003, has been, the subject of any
suit, action or proceeding which is pending or, to the Knowledge of the Company,
threatened, asserting that the Company or any of its Subsidiaries has committed
an unfair labor practice (within the meaning of the National Labor Relations
Act
or applicable state statutes) or seeking to compel it to bargain with any
labor
union or labor organization. Each of the Company and its Subsidiaries is,
and
since January 1, 2003, has been, in compliance in all material
respects with
all
applicable laws relating to employment and employment practices, occupational
safety and health standards, terms and conditions of employment and wages
and
hours, and is not, and since January 1, 2003, has not, engaged in any
material unfair labor practice.
(l)
ERISA
Compliance. (i) Section 3.01(l)(i)
of the Company Disclosure Schedule contains a complete and accurate list
of each
Company Benefit Plan that is an “employee pension benefit plan” (as defined in
Section 3(2) of ERISA) (sometimes referred to herein as a “Company
Pension Plan”),
each
Company Benefit Plan that is an “employee welfare benefit plan” (as defined in
Section 3(1) of ERISA) and all other Company Benefit Plans and Company
Benefit Agreements in effect as of the date of this Agreement. The Company
has
provided or made available to Parent complete and accurate copies of
(A) each such Company Benefit Plan and Company Benefit Agreement (or, in
the case of any unwritten Company Benefit Plans or Company Benefit Agreements,
written descriptions thereof), (B) the two most recent annual reports on
Form 5500 required to be filed with the Internal Revenue Service (the
“IRS”)
with
respect to each Company Benefit Plan (if any such report was required under
applicable law), (C) the most recent summary plan description for each
Company Benefit Plan for which a summary plan description is required under
applicable law and (D) each trust agreement and insurance or group annuity
contract relating to any Company Benefit Plan. Each Company Benefit Plan
has
been administered in all material respects in accordance with its terms and
with
the applicable provisions of ERISA, the Code and all other applicable laws,
including the laws of foreign jurisdictions, and the terms of all applicable
collective bargaining agreements.
(ii) All
Company Pension Plans intended to be tax qualified have received, or currently
applied for, favorable determination or opinion letters from the IRS with
respect to all tax law changes with respect to which the IRS is currently
willing to provide such a letter, to the effect that such Company Pension
Plans
are qualified and exempt from Federal income taxes under Sections 401(a)
and 501(a), respectively, of the Code, no such letter has been revoked (nor,
to
the Knowledge of the Company, has revocation been threatened) and no event
has
occurred since the date of the most recent letter or application therefor
relating to any such Company Pension Plan that would reasonably be expected
to
adversely affect the qualification of such Company Pension Plan or increase
the
costs relating thereto or require security under Section 307 of ERISA. All
Company Pension Plans required to have been approved by any foreign Governmental
Entity have been so approved, no such approval has been revoked (nor, to
the
Knowledge of the Company, has revocation been threatened) and no event has
occurred since the date of the most recent approval or application therefor
relating to any such Company Pension Plan that would reasonably be expected
to
adversely affect any such approval relating thereto or increase the costs
relating thereto. The Company has delivered
or made available to Parent a complete and accurate copy of the most recent
determination letter received prior to the date hereof with respect to each
Company Pension Plan, as well as a complete and accurate copy of each pending
application for such a letter, if any.
(iii) Neither
the Company nor, within the last six years, any Commonly Controlled Entity
(A) has maintained, contributed to or been required to contribute to, or
has any actual or contingent liability under, any Company Benefit Plan that
is
subject to Title IV of ERISA or Section 412 of the Code or that is
otherwise a defined benefit pension plan or (B) has any unsatisfied
liability under Title IV of ERISA or Section 412 of the
Code.
(iv) All
reports, returns and similar documents with respect to all Company Benefit
Plans
required to be filed with any Governmental Entity or distributed to any Company
Benefit Plan participant have been duly and timely filed or distributed.
None of
the Company or any of its Subsidiaries has received notice of, and to the
Knowledge of the Company, there are no investigations by any Governmental
Entity
with respect to, termination proceedings or other claims (except claims for
benefits payable in the normal operation of the Company Benefit Plans), suits
or
proceedings against or involving any Company Benefit Plan or Company Benefit
Agreement or asserting any rights or claims to benefits under any Company
Benefit Plan or Company Benefit Agreement that would reasonably be expected
to
give rise to any material liability, and, to the Knowledge of the Company,
there
are not any facts that would reasonably be expected to give rise to any material
liability in the event of any such investigation, claim, suit or
proceeding.
(v) All
contributions, premiums and benefit payments under or in connection with
the
Company Benefit Plans that are required to have been made as of the date
hereof
in accordance with the terms of the Company Benefit Plans have been timely
made
or have been reflected on the most recent consolidated balance sheet filed
or
incorporated by reference into the Filed Company SEC Documents. No Company
Pension Plan has an “accumulated funding deficiency” (as such term is defined in
Section 302 of ERISA or Section 412 of the Code), whether or not
waived.
(vi) With
respect to each Company Benefit Plan, (A) there has not occurred any prohibited
transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) in which the Company or any of its Subsidiaries,
or, to the Knowledge of the Company, any trustee, administrator or other
fiduciary of such Company Benefit Plan (a “Non-Affiliate
Plan Fiduciary”),
has
engaged that would reasonably be expected to subject the Company or any
of its
Subsidiaries or any Non-Affiliate Plan Fiduciary, to the tax or penalty
on
prohibited transactions imposed by Section 4975 of the
Code or
the
sanctions imposed under Title I of ERISA or any other applicable law and
(B) none of the Company or any of its Subsidiaries nor, to the Knowledge of
the Company, any Non-Affiliate Plan Fiduciary has engaged in any transaction
or
acted in a manner, or failed to act in a manner, that would reasonably
be
expected to subject the Company, any of its Subsidiaries, any of their
respective officers, directors, employees or any Non-Affiliate Plan Fiduciary,
to any liability for breach of fiduciary duty under ERISA or any other
applicable law. To the Knowledge of the Company, there has not been any
“reportable event” (as that term is defined in Section 4043 of ERISA) for
which the 30-day reporting requirement has not been waived with respect
to any
Company Benefit Plan during the last five years, and no notice of a
reportable event will be required to be filed in connection with the
transactions contemplated by this Agreement.
(vii) Section 3.01(l)(vii)
of the Company Disclosure Schedule discloses whether each Company Benefit
Plan
and each Company Benefit Agreement that is an employee welfare benefit plan
is
(A) unfunded or self-insured, (B) funded through a “welfare benefit
fund”, as such term is defined in Section 419(e) of the Code, or other
funding mechanism, or (C) insured. Each such employee welfare benefit plan
may be amended or terminated (including with respect to benefits provided
to
retirees and other former employees) without material liability (other than
for
benefits then payable under such plan without regard to such amendment or
termination) to the Company or any of its Subsidiaries at any time after
the
Effective Time. Each of the Company and its Subsidiaries complies in all
material respects with the applicable requirements of Section 4980B(f) of
the Code or any similar state or local law with respect to each Company Benefit
Plan that is a group health plan, as such term is defined in
Section 5000(b)(1) of the Code or such state or local law. No Company
Benefit Plan or Company Benefit Agreement that is an employee welfare benefit
plan provides benefits after termination of employment, except where the
cost
thereof is borne entirely by the former employee (or his or her eligible
dependents or beneficiaries) or as required by Section 4980B(f) of the
Code.
(viii) Except
as
otherwise contemplated by this Agreement, none of the execution and delivery
of
this Agreement, the obtaining of the Stockholder Approval or the consummation
of
the Merger or any other transaction expressly contemplated by this Agreement
will (including as a result of any termination of employment on or following
the
Effective Time) (A) entitle any Participant to severance, termination,
change in control or similar pay or benefits, (B) accelerate the time of
payment or vesting, or trigger any payment or funding (through a grantor
trust
or otherwise) of, compensation or benefits under, increase the amount payable
or
trigger any other material obligation pursuant to, or increase the cost of,
any
Company Benefit Plan or Company Benefit Agreement or (C) result in any
breach or violation of, or a default under, any Company Benefit Plan or Company
Benefit Agreement.
(ix) Neither
the Company nor any of its Subsidiaries has any material liability or
obligations, including under or on account of a Company Benefit Plan, arising
out of the hiring of persons to provide services to the Company or any of
its
Subsidiaries and improperly treating such persons as consultants or independent
contractors and not as employees of the Company or any of its
Subsidiaries.
(x) No
deduction by the Company or any of its Subsidiaries in respect of any
“applicable employee remuneration” (within the meaning of Section 162(m) of
the Code) has been disallowed or is subject to disallowance by reason of
Section 162(m) of the Code.
(xi) Each
Company Benefit Plan and each Company Benefit Agreement that is a “nonqualified
deferred compensation plan” within the meaning of Section 409A(d)(1) of the
Code (a “Nonqualified
Deferred Compensation Plan”)
subject to Section 409A of the Code has been operated in compliance with
Section 409A of the Code since January 1, 2005, based upon a good
faith, reasonable interpretation of (A) Section 409A of the Code and
(B)(1) the Proposed Regulations issued thereunder or (2) IRS Notice
2005-1 (clauses (A) and (B), together, the “409A
Authorities”).
No
Company Benefit Plan or Company Benefit Agreement that would be a Nonqualified
Deferred Compensation Plan subject to Section 409A of the Code but for the
effective date provisions that are applicable to Section 409A of the Code,
as set forth in Section 885(d) of the American Jobs Creation Act of 2004,
as amended (the “AJCA”),
has
been “materially modified” within the meaning of Section 885(d)(2)(B) of
the AJCA after October 3, 2004, based upon a good faith reasonable
interpretation of the AJCA and the 409A Authorities.
(m)
No
Excess Parachute Payments.
Other
than payments that may be made to persons set forth on Section 3.01(m) of
the Company Disclosure Schedule (the “Primary
Company Executives”),
(i) no amount or other entitlement or economic benefit that could
be received (whether in cash or property or the vesting of property)
as a result of the execution and delivery of this Agreement, the obtaining
of
the Stockholder Approval, the consummation of the Merger or any other
transaction contemplated by this Agreement (including as a result of termination
of employment on or following the Effective Time) by or for the benefit of
any
Participant who is a “disqualified individual” (as such term is defined in
Treasury Regulation Section 1.280G-1) under any Company Benefit Plan,
Company Benefit Agreement or other compensation arrangement would be
characterized as an “excess parachute payment” (as such term is defined in
Section 280G(b)(1) of the Code), and (ii) no such disqualified
individual is entitled to receive any additional payment (e.g.,
any tax
gross up or other payment) from the Company,
Parent, the Surviving Corporation or any other person in the event that the
excise tax required by Section 4999(a) of the Code is imposed on such
disqualified individual. The Company has provided to Parent (A) the
Company’s good faith estimates of the maximum amount that could be received
(whether in cash or property or the vesting of property, and including the
amount of any tax gross up) by each Primary Company Executive as a result
of the
Merger or any other transaction contemplated by this Agreement (alone or
in
combination with any other event) under all Company Benefit Agreements and
Company Benefit Plans and (B) the “base amount” (as defined in
Section 280G(b)(3) of the Code) for each Primary Company Executive,
calculated as of the date of this Agreement.
(n)
Taxes. (i) Each
of the Company and its Subsidiaries has filed or has caused to be filed in
a
timely manner (within any applicable extension period) all tax returns required
to be filed. All such tax returns are complete and accurate in all material
respects and have been prepared in compliance in all material respects with
all
applicable laws and regulations. Each of the Company and its Subsidiaries
has
paid or caused to be paid (or the Company has paid on its behalf) all taxes
due
and owing, and the most recent financial statements contained in the Filed
Company SEC Documents reflect an adequate reserve (determined in accordance
with
GAAP) (excluding any reserves for deferred taxes established to reflect timing
differences between book and tax income) for all taxes payable by the Company
and its Subsidiaries for all taxable periods and portions thereof accrued
through the date of such financial statements.
(ii) No
tax
return of the Company or any of its Subsidiaries is, or with respect to income
tax returns has been within the last five years, under audit or examination
by any taxing authority, and no written notice has been received by the Company
or any of its Subsidiaries that any audit, examination or similar proceeding
is
pending, proposed or asserted with regard to any taxes or tax returns of
the
Company or any of its Subsidiaries. There is no deficiency, refund litigation,
proposed adjustment or matter in controversy with respect to any material
amount
of taxes due and owing by the Company or any of its Subsidiaries. Each
deficiency resulting from any completed audit or examination relating to
taxes
by any taxing authority has been timely paid or is being contested in good
faith
and has been reserved for on the books of the Company. The relevant statute
of
limitations is closed with respect to the income tax returns of the Company
and
each of its Subsidiaries for all years through 2001. There is no currently
effective agreement or other document extending, or having the effect of
extending, the period of assessment or collection of any taxes of the Company
or
any of its Subsidiaries, nor has any request been made for any such extension,
and no currently effective power of attorney (other than powers of attorney
authorizing employees of the Company or any of its Subsidiaries to act on
behalf
of the Company or any of its Subsidiaries) with respect to any taxes has
been
executed or filed with any taxing authority.
(iii) Except
as
included in the determination of deferred income tax or otherwise accrued
or
reserved for on the financial statements of the Company (or the notes thereto)
included in the Filed Company SEC Documents, none of the Company or any of
its
Subsidiaries will be required to include in a taxable period ending after
the
Effective Time taxable income attributable to income that accrued (for purposes
of the financial statements of the Company included in the Filed Company
SEC
Documents) in a prior taxable period (or portion of a taxable period) but
was
not recognized for tax purposes in any prior taxable period as a result of
(A) an open transaction disposition made on or before the Effective Time,
(B) a prepaid amount received on or prior to the Effective Time,
(C) the installment method of accounting, (D) the completed contract
method of accounting, (E) the long-term contract method of accounting,
(F) the cash method of accounting or Section 481 of the Code or
(G) any comparable provisions of state or local tax law, domestic or
foreign, or for any other reason.
(iv) The
Company and each of its Subsidiaries have complied in all material respects
with
all applicable statutes, laws, ordinances, rules and regulations relating
to the
payment and withholding of any material amount of taxes (including withholding
of taxes pursuant to Sections 1441, 1442, 3121 and 3402 of the Code and
similar provisions under any Federal, state, local or foreign tax laws) and
have, within the time and the manner prescribed by law, withheld from and
paid
over to the proper governmental authorities all material amounts required
to be
so withheld and paid over under applicable laws.
(v) None
of
the Company or any of its Subsidiaries has within the last two years constituted
either a “distributing corporation” or a “controlled corporation” as such terms
are defined in Section 355 of the Code in a distribution of stock qualifying
or
intended to qualify for tax-free treatment (in whole or in part) under
Section 355(a) or 361 of the Code.
(vi) Neither
the Company nor any of its Subsidiaries joins or has joined, for any taxable
period in the filing of any affiliated, aggregate, consolidated, combined
or
unitary tax return other than consolidated tax returns for the consolidated
group of which the Company is the common parent.
(vii) Neither
the Company nor any of its Subsidiaries has entered into a “listed transaction”
within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(viii) No
written claim has ever been made by any authority in a jurisdiction where
any of
the Company or its Subsidiaries does not file a tax return that the Company
or
any of its Subsidiaries is, or may be, subject to a material amount of tax
by
that jurisdiction.
(ix) Neither
the Company nor any of its Subsidiaries is a party to or bound by any tax
sharing agreement, tax indemnity obligation or similar agreement, arrangement
or
practice with respect to taxes (including any advance pricing agreement,
closing
agreement or other agreement relating to taxes with any taxing
authority).
(x) No
“ownership change” (as described in Section 382(g) of the Code) has occurred, or
is expected to occur prior to the Effective Time, that would have the effect
of
limiting the use of “pre-change tax losses” (as described in Section 382(d) of
the Code) of the Company and its Subsidiaries following the Effective
Time.
(xi) No
taxing
authority has asserted in writing any material liens for taxes with respect
to
any assets or properties of the Company or any of its Subsidiaries, except
for
statutory liens for taxes not yet due and payable.
(xii) Neither
the Company nor any of its Subsidiaries (other than any Subsidiary that is
a
member of the Company’s consolidated group for United States federal income tax
purposes) has been a United States real property holding corporation within
the
meaning of Section 897(c)(2) of the Code during the applicable period specified
in Section 897(c)(1)(A)(ii) of the Code.
(xiii) As
used
in this Agreement (A) “tax”
or
“taxes”
shall
include (whether disputed or not) all (x) Federal, state, local and foreign
income, property, sales, use, excise, withholding, payroll, employment, social
security, capital gain, alternative minimum, transfer and other taxes, duties
and similar governmental charges or fees of any kind whatsoever, including
any
interest, penalties and additions with respect thereto, (y) liability for
the payment of any amounts of the type described in clause (x) as a result
of being or having been a member of an affiliated, consolidated, combined,
unitary or aggregate group and (z) liability for the payment of any amounts
as a result of being or having been party to any tax sharing agreement or
as a
result of any express or implied obligation to indemnify any other person
with
respect to the payment of any amounts of the type described in clause (x)
or (y); (B) “taxing
authority”
means
any Federal, state, local or foreign government, any subdivision, agency,
commission or authority thereof, or any quasi-governmental body exercising
tax
regulatory authority; and (C) “tax
return”
or
“tax
returns”
means
all returns, declarations of estimated tax payments, reports, estimates,
information returns and statements, including any related or supporting
information with respect to any of foregoing, filed or to be filed with any
taxing authority in connection with the determination, assessment, collection
or
administration of any taxes.
(o) Real
Property. (i) Section 3.01(o)(i)
of the Company Disclosure Schedule contains a complete and accurate list
of all
material real property owned by the Company
and its Subsidiaries (the “Owned
Real Property”).
(A) The Company or its applicable Subsidiary has good and marketable title
to each Owned Real Property subject to no Liens except Permitted Liens,
(B) neither the Company nor any of its Subsidiaries has leased or otherwise
granted to anyone the right to use or occupy any Owned Real Property or
any
portion thereof, (C) there are no outstanding options, rights of first
offer or rights of first refusal to purchase any Owned Real Property or
any
portion thereof or interest therein, (D) all improvements on the Owned Real
Property are, in all material respects, in good condition and repair and
sufficient for the operation of the Company’s or the applicable Subsidiary’s
business as currently conducted and (E) there is no condemnation or other
proceeding in eminent domain, pending or threatened, affecting any parcel
of
Owned Real Property or any portion thereof or interest therein.
(ii) Section 3.01(o)(ii)
of the Company Disclosure Schedule sets forth a complete and accurate list
of
all material real property leased by the Company and its Subsidiaries (the
“Leased
Real Property”,
and
together with the Owned Real Property, the “Real
Property”).
Except as has not had and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, (A) all leases (including
subleases) of real property under which the Company or any of its Subsidiaries
is a lessee or sublessee (the “Leases”)
are in
full force and effect, (B) neither the Company nor any of its Subsidiaries,
nor to the Knowledge of the Company, any other party to any such Lease, is
in
default under any of the Leases, and no event has occurred which, with notice
or
lapse of time, would constitute a default by the Company or any of its
Subsidiaries under any of the Leases and (C) the transactions contemplated
by this Agreement do not require the consent of any other party to a Lease.
Neither the Company nor any of its Subsidiaries has subleased, licensed or
otherwise granted anyone the right to use or occupy any Leased Real Property
or
any portion thereof, and neither the Company nor any of its Subsidiaries
has
collaterally assigned or granted any other security interest in any such
leasehold estate or any interest therein.
(iii) The
Real
Property comprises all of the material real property used in the business
of the
Company and its Subsidiaries as currently conducted.
(p)
Intellectual
Property. (i) The
Company and its Subsidiaries own all right, title and interest to, or are
validly licensed or otherwise have the right to use, all Intellectual Property
Rights used in, or, to the Knowledge of the Company, necessary to conduct,
the
business of the Company and its Subsidiaries, except for such Intellectual
Property Rights the failure of which to own, license or otherwise have the
right
to use, individually or in the aggregate, has not had and would not reasonably
be expected to have a Material Adverse Effect. The Company has taken
commercially reasonable and appropriate actions to maintain good and valid
right
and title in and to protect all such Intellectual Property Rights free of
any
Liens (with respect to licensed Intellectual Property Rights, to the extent
the
Company has the right to take such actions with respect to
such
licensed Intellectual Property Rights). Section 3.01(p) of the Company
Disclosure Schedule sets forth, as of the date hereof, a complete and accurate
list of: (A) all patents and applications therefor, registered trademarks
and applications therefor, domain name registrations (if any) and copyright
registrations (if any) owned by the Company or any of its Subsidiaries and
(B) all options, rights, licenses or interests of any kind relating to
Intellectual Property Rights (including Intellectual Property Rights of a
type
described in the foregoing clause (A)) that are material to the Company and
its Subsidiaries, taken as a whole, granted (1) to the Company or any of
its Subsidiaries (other than software licenses for generally available software
and except pursuant to employee proprietary invention agreements (or similar
employee agreements), non-disclosure agreements and consulting agreements
entered into by the Company or any of its Subsidiaries in the ordinary course
of
business), and (2) by the Company or any of its Subsidiaries to any other
person.
(ii) Neither
the Company nor any of its Subsidiaries has interfered with, infringed upon,
misappropriated, diluted or otherwise come into conflict with any Intellectual
Property Rights of any other person, except for any such interference,
infringement, misappropriation or other conflict that, individually or in
the
aggregate, has not had and would not reasonably be expected to have a Material
Adverse Effect. No claims are pending or, to the Knowledge of the Company,
threatened, nor are there any outstanding judgments, injunctions, orders
or
decrees as of the date of this Agreement, against the Company or any of its
Subsidiaries by any person with respect to the ownership, validity,
enforceability, effectiveness, sale, manufacture or use in the business of
the
Company and its Subsidiaries of any Intellectual Property Right, except for
such
claims, judgments, injunctions, orders or decrees that, individually or in
the
aggregate, have not had and would not reasonably be expected to have a Material
Adverse Effect. To the Knowledge of the Company, no other person has infringed
upon or misappropriated any Intellectual Property Rights of the Company or
any
of its Subsidiaries, except for any such infringement or misappropriation
that,
individually or in the aggregate, has not had and would not reasonably be
expected to have a Material Adverse Effect.
(iii) The
Company and its Subsidiaries have used commercially reasonable efforts to
maintain their trade secrets in confidence, including the development of
a
policy for the protection of intellectual property and periodic training
for all
employees of the Company and its Subsidiaries on the implementation of such
policy and requiring certain employees of the Company and its Subsidiaries
to
execute confidentiality agreements with respect to intellectual property
developed for or obtained from the Company or any of its
Subsidiaries.
(iv) As
used
in this Agreement, “Intellectual
Property Rights”
means,
collectively, whether arising under the laws of the United States or any
other
state, country or jurisdiction: (A) ideas, formulas, patterns, designs,
utility models, compositions, programs, methods, inventions, know-how,
manufacturing and production and all other processes, procedures and techniques,
research and development information and technical data (whether patentable
or
unpatentable and whether or not reduced to practice) and other trade secrets
and
confidential information, patents, patent applications and patent disclosures;
(B) trademarks, service marks, trade dress, trade names, logos and corporate
names (in each case, whether registered or unregistered) and registrations
and
applications for registration thereof; (C) copyrights (registered or
unregistered) and copyrightable works and registrations and applications
for
registration thereof; (D) computer software, data, data bases and documentation
thereof; and (E) domain name registrations.
(q)
Voting
Requirements.
Assuming
that the representation in Section 3.02(g) is true and correct, the affirmative
vote of holders of a majority of the outstanding shares of Company Common
Stock
at the Stockholders’ Meeting or any adjournment or postponement thereof to adopt
this Agreement (the “Stockholder
Approval”)
is the
only vote of the holders of any class or series of capital stock of the Company
necessary to adopt this Agreement and approve the transactions contemplated
hereby.
(r)
State
Takeover Statutes.
The
Board of Directors of the Company has duly approved the terms of this Agreement
and the consummation of the Merger and the other transactions contemplated
by
this Agreement, and, assuming that the representation in Section 3.02(g)
is true
and correct, such approval represents all the actions necessary to render
inapplicable to this Agreement, the Merger and the other transactions
contemplated by this Agreement, the restrictions on “business combinations” (as
defined in Section 203 of the DGCL (“Section 203”))
set
forth in Section 203 to the extent, if any, such restrictions would otherwise
be
applicable to this Agreement, the Merger and the other transactions contemplated
by this Agreement. No other state takeover statute or similar statute or
regulation applies or purports to apply to this Agreement, the Merger or
the
other transactions contemplated by this Agreement.
(s)
Brokers
and Other Advisors.
No
broker, investment banker, financial advisor or other person, other than
JPMorgan Securities Inc., the fees and expenses of which will be paid by
the
Company, is entitled to any broker’s, finder’s, financial advisor’s or other
similar fee or commission in connection with the transactions contemplated
by
this Agreement based upon arrangements made by or on behalf of the Company.
The
Company has made available to Parent complete and accurate copies of all
agreements under which any such fees or expenses are payable and all
indemnification and other agreements related to the engagement of the persons
to
whom such fees are payable.
(t)
Opinion
of Financial Advisor.
The
Company has received the opinion of JPMorgan Securities Inc., dated the date
hereof, to the effect that, as of such date,
the
Merger Consideration is fair, from a financial point of view, to the holders
of
shares of Company Common Stock, a signed copy of which opinion has been,
or will
promptly be, made available to Parent.
(u)
Insurance.
Section 3.01(u) of the Company Disclosure Schedule contains a complete and
accurate list of all policies of fire, liability, workers’ compensation, title
and other forms of insurance owned, held by or applicable to the Company
(or its
assets or business) as of the date hereof, and the Company has heretofore
made
available to Parent a complete and accurate copy of all such policies, including
all occurrence-based policies applicable to the Company (or its assets or
business) for all periods prior to the Closing Date. All such policies (or
substitute policies with substantially similar terms and underwritten by
insurance carriers with substantially similar or higher ratings) are in full
force and effect, all premiums with respect thereto covering all periods
up to
and including the Closing Date have been paid, and no notice of cancelation
or
termination has been received with respect to any such policy except for
such
policies, premiums, cancelations or terminations that individually or in
the
aggregate have not had and would not reasonably be expected to have a Material
Adverse Effect. Such policies are sufficient for compliance by the Company
with
(i) all requirements of applicable laws and (ii) all Contracts to which the
Company is a party, and each of the Company and its Subsidiaries has complied
with the provisions of each such policy under which it is an insured party,
except where the failure to comply individually or in the aggregate has not
had
and would not reasonably be expected to have a Material Adverse Effect. The
Company has not been refused any insurance with respect to its assets or
operations by any insurance carrier to which it has applied for any such
insurance or with which it has carried insurance, during the last five years.
There are no pending or, to the Knowledge of the Company, threatened claims
under any insurance policy that individually or in the aggregate have had
or
would reasonably be expected to have a Material Adverse Effect, for which
the
Company or any of its Subsidiaries has received written notification of any
defense to coverage or reservation of rights in connection with such
claim.
(v)
Rights
Agreement.
The
Company has taken all actions necessary on the part of the Company to
(i) render the Rights Agreement inapplicable to this Agreement, the Merger
and the other transactions contemplated by this Agreement, (ii) ensure that
(x) none of Parent, Sub or any other Subsidiary or Affiliate of Parent is
an “Acquiring Person” or a “Principal Party” (in each case as defined in the
Rights Agreement) and (y) none of a “Distribution Date”, a “Triggering
Event” or a “Stock Acquisition Date” (in each case as defined in the Rights
Agreement) occurs, in the case of clauses (x) and (y), by reason of the
execution of this Agreement or the consummation of the Merger or the other
transactions contemplated by this Agreement and (iii) ensure that neither
Section 11 nor Section 13 of the Rights Agreement will apply to the
Merger or the other transactions contemplated by this Agreement.
SECTION
3.02. Representations
and Warranties of Parent and Sub.
Except
as set forth in the disclosure schedule (with specific reference to the
particular Section or subsection of this Agreement to which the information
set
forth in such disclosure schedule relates; provided,
however,
that
any information set forth in one section of such disclosure schedule shall
be
deemed to apply to each other Section or subsection thereof to which its
relevance is reasonably apparent on its face) delivered by Parent to the
Company
prior to the execution of this Agreement (the “Parent
Disclosure Schedule”),
Parent and Sub represent and warrant to the Company as follows:
(a)
Organization,
Standing and Corporate Power.
Each of
Parent and Sub is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is incorporated and
has
all requisite corporate power and authority to carry on its business as now
being conducted. Each of Parent and Sub is duly qualified or licensed to
do
business and is in good standing in each material jurisdiction in which the
nature of its business or the ownership, leasing or operation of its properties
makes such qualification or licensing necessary.
(b)
Authority;
Noncontravention.
Each of
Parent and Sub has all requisite corporate power and authority to execute
and
deliver this Agreement and to consummate the transactions contemplated by
this
Agreement. The execution and delivery of this Agreement and the consummation
of
the transactions contemplated by this Agreement have been duly authorized
by all
necessary corporate action on the part of Parent and Sub and no other corporate
proceedings on the part of Parent or Sub are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
and the transactions contemplated hereby do not require approval of the holders
of any shares of capital stock of Parent. This Agreement has been duly executed
and delivered by each of Parent and Sub and, assuming the due authorization,
execution and delivery by the Company, constitutes a legal, valid and binding
obligation of Parent and Sub, as applicable, enforceable against Parent and
Sub,
as applicable, in accordance with its terms, subject to bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the rights of creditors
generally and the availability of equitable remedies (regardless of whether
considered in a proceeding at law or in equity). The execution and delivery
of
this Agreement do not, and the consummation of the Merger and the other
transactions contemplated by this Agreement and compliance by Parent and
Sub
with the provisions of this Agreement will not, conflict with, or result
in any
violation or breach of, or default (with or without notice or lapse of time,
or
both) under, or give rise to a right of, or result in, termination, cancelation
or acceleration of any obligation or to the loss of a benefit under, or result
in the creation of any Lien in or upon any of the properties or other assets
of
Parent or Sub under (x) the Restated Articles of Organization or By-laws of
Parent or the Certificate of Incorporation or By-
laws
of Sub, (y) any Contract to which Parent or Sub is a
party or any of their respective properties or other assets is subject, in
any
way that would prevent, materially impede or materially delay the consummation
by Parent of the Merger (including the payments required to be made pursuant
to Article II) or the other transactions contemplated hereby or
(z) subject to the governmental filings and other matters referred to in
the following sentence, any (A) statute, law, ordinance, rule or regulation
applicable to Parent or Sub or their respective properties or other assets
or
(B) order, writ, injunction, decree, judgment or stipulation, in each case
applicable to Parent or Sub or their respective properties or other assets,
and
in each case, in any way that would prevent, materially impede or materially
delay the consummation by Parent of the Merger (including the payments required
to be made pursuant to Article II) or the other transactions contemplated
hereby. No material consent, approval, order or authorization of, action
by or
in respect of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Parent or Sub in connection with
the
execution and delivery of this Agreement by Parent and Sub or the consummation
by Parent and Sub of the Merger or the other transactions contemplated by
this
Agreement, except for (1) the filing of a premerger notification and report
form by Parent under the HSR Act and the receipt, termination or expiration,
as
applicable, of approvals or waiting periods required under the HSR Act or
any
other applicable foreign competition, merger control, antitrust or similar
law
or regulation and (2) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware.
(c)
Information
Supplied.
None of
the information supplied or to be supplied by or on behalf of Parent or Sub
specifically for inclusion or incorporation by reference in the Proxy Statement
will, at the date it is first mailed to the stockholders of the Company and
at
the time of the Stockholders’ 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 therein, in light of the
circumstances under which they are made, not misleading.
(d)
Interim
Operations of Sub.
Sub was
formed solely for the purpose of engaging in the transactions contemplated
hereby, has engaged in no other business activities and has conducted its
operations only as contemplated hereby.
(e)
Capital
Resources.
Parent
has cash on hand and committed financing that, together, will at the Effective
Time be sufficient to pay the aggregate Merger Consideration and amounts
payable
pursuant to Section 5.04. Parent has made available to the Company a copy
of the commitment letter, dated as of April 24, 2006, setting forth the terms
of
the committed financing available to Parent in connection with the transactions
contemplated by this Agreement (the “Commitment
Letter”),
which
Commitment Letter is in full force and effect. All commitment and other fees
required to be paid under the Commitment Letter prior to the date hereof
have
been paid. To the Knowledge of Parent, there is no state of facts existing
as of
the date of this Agreement that will preclude satisfaction as of the Effective
Time of the conditions contemplated by the Commitment Letter.
(f)
Brokers.
No
broker, investment banker, financial advisor or other person, other than
UBS
Securities LLC, the fees and expenses of which will be paid by Parent, is
entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Parent or Sub.
(g)
Interested
Stockholder.
None of
Parent, Sub or any of their “affiliates” or “associates” is, or has been within
the last three years, an “interested stockholder” of the Company as those terms
are defined in Section 203.
Covenants
Relating to Conduct of Business
SECTION
4.01. Conduct
of Business. (a)
Conduct
of Business by the Company.
During
the period from the date of this Agreement to the Effective Time, except
as set
forth in Section 4.01(a) of the Company Disclosure Schedule or as consented
to in writing in advance by Parent or as otherwise expressly permitted or
required pursuant to this Agreement, the Company shall, and shall cause each
of
its Subsidiaries to, carry on its business in the ordinary course consistent
with past practice and in compliance in all material respects with all
applicable laws, rules, regulations and treaties and, to the extent consistent
therewith, use commercially reasonable efforts to preserve intact its current
business organizations, keep available the services of its current officers,
employees and consultants and preserve its relationships with customers,
suppliers, licensors, licensees, distributors and others having business
dealings with it with the intention that its goodwill and ongoing business
shall
be unimpaired at the Effective Time. In addition to and without limiting
the
generality of the foregoing, during the period from the date of this Agreement
to the Effective Time, except as otherwise set forth in Section 4.01(a) of
the Company Disclosure Schedule or as otherwise expressly permitted or required
pursuant to this Agreement, the Company shall not, and shall not permit any
of
its Subsidiaries to, without Parent’s prior written consent:
(i)
(x) declare,
set aside or pay any dividends on, or make any other distributions (whether
in
cash, stock or property) in respect of, any of its capital stock, other than
dividends or distributions by a direct or indirect wholly owned Subsidiary
of
the Company to its shareholders, (y) split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any other securities
in
respect of, in lieu of or in substitution for shares of its capital stock
or
(z) purchase, redeem or otherwise acquire any shares of its capital stock
or any other securities thereof or any options, warrants, calls or rights
to
acquire any such shares or other securities, other than in connection with
(1) the forfeiture of Company Stock Options, Company Restricted Stock and
Company Stock-Based Awards and (2) the withholding of shares of Company
Common Stock to satisfy tax
obligations with respect to Company Stock Options, Company Restricted Stock
and
Company Stock-Based Awards;
(ii) issue,
deliver, sell, grant, pledge or otherwise encumber or subject to any Lien
any
shares of its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any such
shares, voting securities or convertible securities, or any “phantom” stock,
“phantom” stock rights, stock appreciation rights or stock based performance
units, including pursuant to Contracts as in effect on the date hereof (other
than (x) the issuance of shares of Company Common Stock upon the conversion
of Company Debentures, or the exercise of Company Stock Options and rights
under
the ESPPs or vesting of Company Stock-Based Awards (subject to
Section 5.04), in each case outstanding on the date hereof in accordance
with their terms on the date hereof, (y) the issuance of the Rights and capital
stock pursuant to the terms of the Rights Agreement and (z) as required under
any Company Benefit Agreement or Company Benefit Plan in effect on the date
of
the most recent audited financial statements included in the Filed Company
SEC
Documents);
(iii) amend
(x)
the Company Certificate or the Company By-laws or other comparable charter
or
organizational documents of any of the Company’s Subsidiaries or (y) the
Indenture dated as of August 20, 2003, between the Company and The Bank of
New York, as trustee, with respect to the Company Debentures, in each case
except as may be required by law or the rules and regulations of the SEC
or The
Nasdaq Stock Market, Inc.;
(iv) directly
or indirectly acquire (x) by merging or consolidating with, or by
purchasing assets of, or by any other manner, any person or division, business
or equity interest of any person or (y) any asset or assets that,
individually, has a purchase price in excess of $1,000,000 or, in the aggregate,
have a purchase price in excess of $5,000,000, except for new capital
expenditures, which shall be subject to the limitations of clause (vii)
below, and except for purchases of components, raw materials or supplies
in the
ordinary course of business consistent with past practice;
(v) (x) sell,
lease, license, mortgage, sell and leaseback or otherwise encumber or subject
to
any Lien or otherwise dispose of any of its properties or other assets
(excluding Intellectual Property Rights) or any interests therein (including
securitizations), except for sales of inventory and used equipment in the
ordinary course of business consistent with past practice, (y) enter into,
modify or amend any lease of property, except in the ordinary course of business
consistent with past practice, or (z) modify, amend, terminate or permit
the lapse of any material Lease or other material Contract relating to any
real
property;
(vi) (x) incur
any indebtedness for borrowed money in excess of $500,000 or guarantee any
such
indebtedness of another person, issue or sell any debt securities or calls,
options, warrants or other rights to acquire any debt securities of the Company
or any of its Subsidiaries, guarantee any debt securities of another person,
enter into any “keep well” or other agreement to maintain any financial
statement condition of another person or enter into any arrangement having
the
economic effect of any of the foregoing or (y) make any loans, advances or
capital contributions to, or investments in, any other person, other than
to
employees in respect of travel or other customary business expenses in the
ordinary course of business consistent with past practice;
(vii) make
any
new capital expenditure or expenditures which, individually, is in excess
of
$1,000,000 or, in the aggregate, are in excess of $5,000,000;
(viii) except
as
required by law or any judgment by a court of competent jurisdiction,
(v) pay, discharge, settle or satisfy any material claims, liabilities,
obligations or litigation (absolute, accrued, asserted or unasserted, contingent
or otherwise), other than the payment, discharge, settlement or satisfaction
in
the ordinary course of business consistent with past practice or in accordance
with their terms, of liabilities disclosed, reflected or reserved against
in the
most recent audited financial statements (or the notes thereto) of the Company
included in the Filed Company SEC Documents (for amounts not in excess of
such
reserves) or incurred since the date of such financial statements in the
ordinary course of business consistent with past practice, (w) cancel any
indebtedness (other than upon the conversion of any Company Debentures
outstanding on the date hereof in accordance with their terms on the date
hereof), (x) waive or assign any claims or rights of substantial value,
(y) waive any benefits of, or agree to modify in any respect, or, subject
to the terms hereof, fail to enforce, or consent to any matter with respect
to
which consent is required under, any standstill or similar Contract to which
the
Company or any of its Subsidiaries is a party or (z) waive any material
benefits of, or agree to modify in any material respect, or, subject to the
terms hereof, fail to enforce in any material respect, or consent to any
matter
with respect to which consent is required under, any material confidentiality
or
similar Contract to which the Company or any of its Subsidiaries is a
party;
(ix) enter
into any Contracts (other than licenses of Intellectual Property Rights granted
to or by the Company or any of its Subsidiaries) relating to the research,
development, distribution, sale, supply, marketing, co-promotion or
manufacturing of products of the Company or any Subsidiary of the Company
or
products licensed by the Company or any Subsidiary of the Company which,
individually, has aggregate estimated or expected future payment or other
obligations of the Company and its Subsidiaries with a value in excess
of $1,000,000
or, in the aggregate, have estimated or expected future payment or other
obligations of the Company and its Subsidiaries with a value in excess of
$5,000,000;
(x) enter
into, modify, amend or terminate any Contract or waive, release or assign
any
material rights or claims thereunder, which if so entered into, modified,
amended, terminated, waived, released or assigned would reasonably be expected
to (A) adversely affect in any material respect the Company,
(B) impair in any material respect the ability of the Company to perform
its obligations under this Agreement or (C) prevent or materially delay the
consummation of the transactions contemplated by this Agreement;
(xi) enter
into any Contract to the extent consummation of the transactions contemplated
by
this Agreement or compliance by the Company with the provisions of this
Agreement would reasonably be expected to conflict with, or result in a
violation or breach of, or default (with or without notice or lapse of time,
or
both) under, or give rise to a right of, or result in, termination, cancelation
or acceleration of any obligation or to the loss of a benefit under, or result
in the creation of any Lien in or upon any of the properties or other assets
of
the Company or any of its Subsidiaries under, or give rise to any increased,
additional, accelerated, or guaranteed right or entitlements of any third
party
under, or result in any material alteration of, any provision of such
Contract;
(xii) sell,
transfer or license to any person or otherwise extend, amend or modify any
rights to any of the material Intellectual Property Rights of the Company
or any
of its Subsidiaries, or license any material Intellectual Property Rights
from
any person, other than licenses of Intellectual Property Rights granted to
or by
the Company or any of its Subsidiaries that both (A) are entered into in
the ordinary course of business consistent with past practice and (B) do
not involve, individually, payment or other obligations of the Company and
its
Subsidiaries or of any other person with an aggregate value reasonably estimated
by the Company to be in excess of $500,000;
(xiii) except
as
otherwise contemplated by this Agreement or as required to ensure that any
Company Benefit Plan or Company Benefit Agreement is not then out of compliance
with applicable law or as required under any Company Benefit Agreement or
Company Benefit Plan in effect on the date of the most recent audited financial
statements included in the Filed Company SEC Documents, (A) adopt, enter
into, terminate or amend any Company Benefit Plan, Company Benefit Agreement
or
collective bargaining agreement, other than amendments that are immaterial
or
administrative in nature, (B) increase in any manner the compensation,
bonus or fringe or other benefits of any Participant, or grant or pay any
type
of compensation or benefits to any Participant not previously receiving or
entitled to receive such type of compensation
or benefits, except for increases in cash compensation (including cash bonuses)
to Participants in the ordinary course of business consistent with past
practice; provided,
however,
that
such increases in cash compensation and the amounts of such cash bonuses
shall
not, in the aggregate, exceed the amounts set forth in
Section 4.01(a)(xiii) of the Company Disclosure Schedule, (C) grant or
pay to any Participant (1) any severance, termination, change in control or
similar pay or benefits or increase such pay or benefits or (2) any right
to receive any severance, termination, change in control or similar pay or
benefits, (D) pay any benefit under, or grant any award under or amend or
terminate any bonus, incentive, performance or other compensation plan or
arrangement, Company Benefit Agreement or Company Benefit Plan (including
the
grant of Company Stock Options, Company Restricted Stock, Company Stock-Based
Awards, rights under the ESPPs, “phantom” stock, stock appreciation rights,
“phantom” stock rights, restricted stock units, deferred stock units,
performance stock units or other stock-based or stock-related awards or the
removal or modification of existing restrictions in any Company Benefit
Agreements or Company Benefit Plans or on any awards made thereunder), other
than as expressly permitted pursuant to clause (B), (E) take any
action to fund or in any other way secure the payment of compensation or
benefits under any Company Benefit Plan or Company Benefit Agreement,
(F) take any action to accelerate the vesting or payment of any
compensation or benefits under any Company Benefit Plan or Company Benefit
Agreement or (G) materially change any actuarial or other assumption used
to calculate funding obligations with respect to any Company Pension Plan
or
change the manner in which contributions to any Company Pension Plan are
made or
the basis on which such contributions are determined;
(xiv) except
as
required by GAAP, revalue any material assets of the Company or any of its
Subsidiaries or make any change in accounting methods, principles or practices;
or
(xv) authorize
any of, or commit, resolve, propose or agree to take any of, the foregoing
actions.
(b)
Other
Actions.
The
Company, Parent and Sub shall not, and shall not permit any of their respective
Subsidiaries to, take any action that would reasonably be expected to result
in
any of the conditions to the Merger set forth in Article VI not being
satisfied.
(c)
Advice
of Changes; Filings.
The
Company and Parent shall promptly advise the other party orally and in writing
of (i) any representation or warranty made by it (and, in the case of
Parent, made by Sub) contained in this Agreement becoming untrue or inaccurate
or (ii) the failure of it (and, in the case of Parent, of Sub) to comply
with or satisfy any covenant, condition or agreement to be complied with
or
satisfied by it under this
Agreement such that, in any such case, the conditions set forth in Sections
6.02(a), 6.02(b), 6.03(a) or 6.03(b) will not be satisfied at the Closing;
provided,
however,
that no
such notification shall affect the representations, warranties, covenants
or
agreements of the parties (or remedies with respect thereto) or the conditions
to the obligations of the parties under this Agreement. The Company and Parent
shall, to the extent permitted by law, promptly provide the other with copies
of
all filings made by such party with any Governmental Entity in connection
with
this Agreement and the transactions contemplated hereby, other than the portions
of such filings that include confidential information not directly related
to
the transactions contemplated by this Agreement.
(d)
Certain
Tax Matters. (i)
During
the period from the date of this Agreement to the Effective Time, the Company
shall, and shall cause each of its Subsidiaries to, (A) timely file all tax
returns (“Post-Signing
Returns”)
required to be filed by or on behalf of each such entity; (B) timely pay
all taxes due and payable; (C) accrue a reserve in the books and records
and financial statements of any such entity in accordance with past practice
for
all taxes payable but not yet due; (D) promptly notify Parent of any suit,
claim, action, investigation, proceeding or audit (collectively, “Actions”)
pending against or with respect to the Company or any of its Subsidiaries
in
respect of any material amount of tax and not settle or compromise any such
Action without Parent’s consent (such consent not to be unreasonably withheld,
delayed or conditioned); and (E) not make any material tax election (other
than an election under Section 338(h)(10) of the Code in connection with
the
acquisition by the Company of the stock of Linco Research, Incorporated and
LINCO Diagnostic Services, Inc.) or settle or compromise any material tax
liability, other than with Parent’s consent (such consent not to be unreasonably
withheld, delayed or conditioned) or other than in the ordinary course of
business. Any tax returns described in this Section 4.01(d) shall be
complete and correct in all material respects and shall be prepared on a
basis
consistent with the past practice of the Company.
(ii) The
Company shall deliver to Parent at or prior to the Closing a certificate,
in
form and substance satisfactory to Parent, duly executed and acknowledged,
certifying that the payment of the Merger Consideration and any payments
made in
respect of Appraisal Shares pursuant to the terms of this Agreement are exempt
from withholding pursuant to the Foreign Investment in Real Property Tax
Act.
SECTION
4.02. No
Solicitation. (a)
The
Company shall not, nor shall it authorize or permit any of its Subsidiaries
or
any of their respective directors, officers or employees or any investment
banker, financial advisor, attorney, accountant or other advisor, agent or
representative (collectively, “Representatives”)
retained by it or any of its Subsidiaries to, directly or indirectly through
another person, (i) solicit, initiate or knowingly encourage or facilitate
any Takeover Proposal or (ii) enter into, continue or otherwise participate
in any discussions or negotiations regarding, or furnish to
any person
any information, or otherwise cooperate in any way with, any Takeover Proposal.
The Company shall, and shall cause its Subsidiaries to, immediately cease
and
cause to be terminated all existing discussions or negotiations with any
person
conducted heretofore with respect to any Takeover Proposal and request the
prompt return or destruction of all confidential information previously
furnished. Notwithstanding the foregoing, at any time prior to obtaining
the
Stockholder Approval, in response to a bona fide written Takeover Proposal
that
the Board of Directors of the Company determines in good faith (after
consultation with outside counsel and a financial advisor of nationally
recognized reputation) constitutes or would reasonably be expected to lead
to a
Superior Proposal, and which Takeover Proposal was not solicited after the
date
hereof and was made after the date hereof and did not otherwise result from
a
breach of this Section 4.02(a), the Company may, if its Board of Directors
determines in good faith (after consultation with outside counsel) that the
failure to do so would be inconsistent with its fiduciary duties to the
stockholders of the Company under applicable law, and subject to compliance
with
Section 4.02(c), (x) furnish information with respect to the Company
and its Subsidiaries to the person making such Takeover Proposal (and its
Representatives) pursuant to a customary confidentiality agreement not less
restrictive of such person than the Confidentiality Agreement; provided
that all
such information has previously been provided to Parent or is provided to
Parent
prior to or substantially concurrent with the time it is provided to such
person, and (y) participate in discussions or negotiations with the person
making such Takeover Proposal (and its Representatives) regarding such Takeover
Proposal.
The
term
“Takeover
Proposal”
means
any inquiry, proposal or offer from any person (other
than Parent or any of its controlled Affiliates) relating
to, or that would reasonably be expected to lead to, any direct or indirect
acquisition or purchase, in one transaction or a series of related transactions,
of assets or businesses that constitute 15% or more of the revenues, net
income
or the assets of the Company and its Subsidiaries, taken as a whole, or 15%
or
more of any class of equity securities of the Company or any of its
Subsidiaries, any tender offer or exchange offer that if consummated would
result in any person (other than Parent or any of its controlled Affiliates)
beneficially owning 15% or more of any class of equity securities of the
Company
or any of its Subsidiaries, or any merger, consolidation, business combination,
recapitalization, liquidation, dissolution, joint venture, binding share
exchange or similar transaction involving the Company or any of its Subsidiaries
pursuant to which any person (other than Parent or any of its controlled
Affiliates) or the shareholders of any person (other than Parent or any of
its
controlled Affiliates) would own 15% or more of any class of equity securities
of the Company or any of its Subsidiaries or of any resulting parent company
of
the Company, other than the transactions contemplated by this
Agreement.
The
term
“Superior
Proposal”
means
any bona fide Takeover Proposal made by a third party that if consummated
would
result in such person (or its stockholders) owning, directly or indirectly,
all
or substantially all of the shares of Company
Common Stock then outstanding (or of the surviving entity in a merger or
the
direct or indirect parent of the surviving entity in a merger) or all or
substantially all the assets of the Company, which the Board of Directors
of the
Company determines in good faith (after consultation with a financial advisor
of
nationally recognized reputation) to be (x) more favorable to the
stockholders of the Company from a financial point of view than the Merger
(taking into account all the terms and conditions of such proposal and this
Agreement (including any changes to the financial terms of this Agreement
proposed by Parent prior to the expiration of the five business day period
referred to below (if applicable) in response to such offer or otherwise))
and
(y) reasonably capable of being completed, taking into account all
financial, legal, regulatory and other aspects of such proposal.
(b)
Neither
the Board of Directors of the Company nor any committee thereof shall (i)
(A) withdraw (or modify in a manner adverse to Parent), or publicly propose
to withdraw (or modify in a manner adverse to Parent), the approval,
recommendation or declaration of advisability by such Board of Directors
or any
such committee thereof of this Agreement, the Merger or the other transactions
contemplated by this Agreement or (B) recommend, adopt or approve, or
propose publicly to recommend, adopt or approve, any Takeover Proposal
(any
action described in this clause (i) being referred to as a “Company
Adverse Recommendation Change”)
or (ii) approve or recommend, or propose to approve or recommend, or
allow the Company or any of its Subsidiaries to execute or enter into,
any
letter of intent, memorandum of understanding, agreement in principle,
merger
agreement, acquisition agreement, option agreement, joint venture agreement,
partnership agreement or other similar agreement constituting or related
to, or
that is intended to or would reasonably be expected to lead to, any Takeover
Proposal (other than a confidentiality agreement referred to in
Section 4.02(a)) (an “Acquisition
Agreement”).
Notwithstanding the foregoing, at any time prior to obtaining the Stockholder
Approval, the Board of Directors of the Company may, if such Board of Directors
determines in good faith (after consultation with outside counsel) that
the
failure to do so would be inconsistent with its fiduciary duties to the
stockholders of the Company under applicable law, (x) make a Company
Adverse Recommendation Change or (y) in response to a Superior Proposal
that was not solicited after the date hereof and was made after the date
hereof
and did not result from a breach of this Section 4.02, cause the Company to
terminate this Agreement (and concurrently with such termination enter
into an
Acquisition Agreement with respect to such Superior Proposal); provided,
however,
that
(1) no Company Adverse Recommendation Change may be made and (2) no
such termination of this Agreement by the Company may be made, in each
case
until after the fifth business day following Parent’s receipt of written notice
from the Company advising Parent that the Board of Directors of the Company
intends to make a Company Adverse Recommendation Change or terminate this
Agreement pursuant to this Section 4.02(b). Such notice from the Company to
Parent shall specify the reasons therefor, including the terms and conditions
of
any Superior Proposal that is the basis of the proposed action by the Board
of
Directors (it being understood and agreed that any amendment to the financial
terms or any other material term of such Superior Proposal shall require
a new
written notice by the Company and a new five business day period). In
determining whether to make a Company Adverse Recommendation Change or
to
terminate this Agreement pursuant to this Section 4.02(b), the Board of
Directors of the Company shall take into account any changes to the financial
terms of this Agreement proposed by Parent prior to the expiration of the
five
business day period referenced above in response to any such written notice
by
the Company or otherwise.
(c)
In
addition to the obligations of the Company set forth in paragraphs (a) and
(b) of this Section 4.02, the Company shall promptly advise Parent
orally and in writing of any Takeover Proposal, the material terms and
conditions of any such Takeover Proposal (including any changes thereto)
and the
identity of the person making any such Takeover Proposal. The Company shall
(i) keep Parent fully informed of the status and details (including any
change to the terms thereof) of any such Takeover Proposal and any discussions
and negotiations concerning the material terms and conditions thereof and
(ii) provide to Parent as soon as practicable after receipt or delivery
thereof with copies of all correspondence and other written material (including
draft agreements) sent by or provided to the Company or any of its Subsidiaries
in connection with any such Takeover Proposal.
(d)
Nothing
contained in this Section 4.02 shall prohibit the Company from
(x) taking and disclosing to its stockholders a position contemplated by
Rule 14e-2(a) promulgated under the Exchange Act or (y) making any
disclosure to the stockholders of the Company if, in the good faith judgment
of
the Board of Directors of the Company (after consultation with outside counsel)
failure to so disclose would be inconsistent with its obligations under
applicable law, including the Board of Directors’ duty of candor to the
stockholders of the Company; provided,
however,
that in
no event shall the Company or its Board of Directors or any committee thereof
take, or agree or resolve to take, any action prohibited by
Section 4.02(b).
Additional
Agreements
SECTION
5.01. Preparation
of the Proxy Statement; Stockholders’ Meeting. (a)
As
promptly as practicable following the date of this Agreement, the Company
shall
prepare and file with the SEC the Proxy Statement and the Company shall use
its
commercially reasonable efforts to respond as promptly as practicable to
any
comments of the SEC with respect thereto and to cause the Proxy Statement
to be
mailed to the stockholders of the Company as promptly as practicable following
the date of this Agreement. The Company shall promptly notify Parent upon
the
receipt of any comments from the SEC or the staff of the SEC or any request
from
the SEC or the staff of the SEC for amendments or supplements to the Proxy
Statement and shall provide Parent
with copies of all correspondence between the Company and its Representatives,
on the one hand, and the SEC and the staff of the SEC, on the other hand.
Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement
(or any amendment or supplement thereto) or responding to any comments of
the
SEC or the staff of the SEC with respect thereto, the Company (i) shall
provide Parent an opportunity to review and comment on such document or response
and (ii) shall include in such document or response all comments reasonably
proposed by Parent.
(b)
The
Company shall, as soon as 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 “Stockholders’
Meeting”)
solely
for the purpose of obtaining the Stockholder Approval. Subject to
Sections 4.02(b) and 4.02(d), the Company shall, through its Board of
Directors, recommend to its stockholders adoption of this Agreement and shall
include such recommendation in the Proxy Statement. Without limiting the
generality of the foregoing, the Company’s obligations pursuant to the first
sentence of this Section 5.01(b) shall not be affected by (i) the
commencement, public proposal, public disclosure or communication to the
Company
of any Takeover Proposal or (ii) the withdrawal or modification by the
Board of Directors of the Company or any committee thereof of such Board
of
Directors’ or such committee’s approval or recommendation of this Agreement, the
Merger or the other transactions contemplated by this Agreement.
SECTION
5.02. Access
to Information; Confidentiality.
Except
to the extent prohibited by applicable law, the Company shall afford to Parent,
and to Parent’s officers, employees, accountants, counsel, financial advisors
and other Representatives, reasonable access (including for the purpose of
coordinating integration activities and transition planning with the employees
of the Company and its Subsidiaries) during normal business hours and upon
reasonable prior notice to the Company during the period prior to the Effective
Time or the termination of this Agreement to all its and its Subsidiaries’
properties, books, Contracts, commitments, personnel and records and, during
such period, the Company shall furnish promptly to Parent (a) a copy of
each report, schedule, registration statement and other document filed by
it
during such period pursuant to the requirements of Federal or state securities
laws, (b) a copy of each correspondence or written communication with any
United
States Federal or state Governmental Entity and (c) all other information
concerning its and its Subsidiaries’ business, properties and personnel as
Parent may reasonably request. Except for disclosures expressly permitted
by the
terms of the Confidentiality Agreement dated as of January 20, 2006, between
Parent and the Company (as it may be amended from time to time, the
“Confidentiality
Agreement”),
Parent shall hold, and shall cause its officers, employees, accountants,
counsel, financial advisors and other Representatives to hold, all information
received from the Company, directly or indirectly, in confidence in accordance
with the Confidentiality Agreement. No investigation pursuant to this
Section 5.02 or information provided or received by any party hereto
pursuant to this Agreement
will affect any of the representations or warranties of the parties hereto
contained in this Agreement or the conditions hereunder to the obligations
of
the parties hereto.
SECTION
5.03. Commercially
Reasonable Efforts.
Upon the
terms and subject to the conditions set forth in this Agreement, each of
the
parties agrees to use its commercially reasonable efforts to take, or cause
to
be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by this
Agreement, including using commercially reasonable efforts to accomplish
the
following: (i) the taking of all acts necessary to cause the conditions to
Closing to be satisfied as promptly as practicable, (ii) the obtaining of
all necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities and the making of all necessary registrations and filings
(including filings with Governmental Entities) and the taking of all steps
as
may be necessary to obtain an approval or waiver from, or to avoid an action
or
proceeding by, any Governmental Entity and (iii) the obtaining of all
necessary consents, approvals or waivers from third parties; provided
that
none of the Company, Parent or Sub shall be required to make any payment
to any
such third parties or concede anything of value to obtain such consents.
In
connection with and without limiting the foregoing, the Company and Parent
shall
duly file with the U.S. Federal Trade Commission and the Antitrust Division
of
the Department of Justice the notification and report form (the “HSR
Filing”)
required under the HSR Act with respect to the transactions contemplated
by this
Agreement as promptly as practicable. The HSR Filing shall be in substantial
compliance with the requirements of the HSR Act. Each party shall cooperate
with
the other party to the extent necessary to assist the other party in the
preparation of its HSR Filing, to request early termination of the waiting
period required by the HSR Act and, if requested, to promptly amend or furnish
additional information thereunder. The Company and its Board of Directors
shall
(1) take all action reasonably necessary to ensure that no state takeover
statute or similar statute or regulation is or becomes applicable to this
Agreement, the Merger or any of the other transactions contemplated by this
Agreement and (2) if any state takeover statute or similar statute becomes
applicable to this Agreement, the Merger or any of the other transactions
contemplated by this Agreement, take all action reasonably necessary to ensure
that the Merger and the other transactions contemplated by this Agreement
may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to minimize the effect of such statute or regulation
on
this Agreement, the Merger and the other transactions contemplated by this
Agreement. No
party
shall voluntarily extend any waiting period under the HSR Act and/or enter
into
any agreement with a Governmental Entity to delay or not to consummate the
Merger or any of the other transactions contemplated by this Agreement except
with the prior written consent of the other party (such consent not to be
unreasonably withheld, delayed or conditioned and which reasonableness shall
be
determined in light of each party’s obligation to do all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Merger and the other transactions
contemplated by this Agreement). If any objections are asserted with respect
to
the Merger or this Agreement under any applicable antitrust or competition
law,
or if any suit or proceeding is instituted by any Governmental Entity or
any
other person challenging the Merger or this Agreement as violative of any
applicable antitrust or competition law, the parties shall use their
commercially reasonable efforts to resolve such objections, suit or proceeding.
Notwithstanding anything to the contrary herein, nothing in this Agreement
shall
be deemed to require Parent to agree to, or proffer to, divest or hold separate
any assets or any portion of any business of Parent, the Company or any of
their
respective Subsidiaries.
SECTION
5.04. Equity-Based
Awards. (a)
As
soon
as practicable following the date of this Agreement, the Board of Directors
of
the Company (or, if appropriate, any committee thereof administering the
Company
Stock Plans) shall adopt such resolutions or take such other actions (including
obtaining any required consents) as may be required to effect the
following:
(i) (A)
prior
to the Effective Time, each outstanding unvested Company Stock Option shall
automatically accelerate so that each such Company Stock Option shall become
fully exercisable for all shares of Company Common Stock at the time subject
to
such Company Stock Option and may be exercised by the holder thereof for
any or
all of such shares and (B) upon the Effective Time, all outstanding Company
Stock Options shall be canceled, with the holder of each Company Stock Option
becoming entitled to receive, in full satisfaction of the rights of such
holder
with respect thereto, an amount in cash equal to (x) the excess, if any,
of the
per share Merger Consideration over the exercise price per share of Company
Common Stock subject to such Company Stock Option, multiplied by (y) the
number
of shares of Company Common Stock subject to such Company Stock Option;
provided
that all
amounts payable pursuant to this clause (i) shall be subject to any required
withholding of taxes or proof of eligibility for exemption therefrom and
shall
be paid at or as soon as practicable following the Effective Time, without
interest;
(ii) each
share of Company Restricted Stock shall be adjusted as necessary to provide
that
the restrictions on such share shall lapse at the Effective Time, and at
the
Effective Time, each share of Company Restricted Stock shall be converted
into
the right to receive the Merger Consideration in accordance with
Section 2.01(c), subject to any applicable withholding pursuant to
Section 2.02(h);
(iii) upon
the
Effective Time, each Company Stock-Based Award that is a performance share
unit
award (a “Company
Performance Share Unit Award”) and
that
is outstanding shall be canceled, with the holder thereof becoming entitled
to
receive, in full satisfaction of the rights of such holder with respect thereto,
an amount in cash equal to (A) the Merger Consideration multiplied by (B)
a
number of shares of Company Common Stock determined by multiplying the target
number of shares of Company Common Stock subject to such Company Performance
Share Unit Award as of the Effective Time by a fraction, the numerator of
which
is the sum of 365 and the number of days that have elapsed during the applicable
performance cycle prior to the Effective Time and the denominator of which
is
the total number of days in the applicable performance cycle; provided
that in
no event shall the number of shares of Company Common Stock determined pursuant
to the formula in the foregoing clause (B) exceed 100% of the target number
of
shares subject to a Company Performance Share Unit Award; provided further
that all
amounts payable pursuant to this clause (iii) shall be subject to any required
withholding of taxes or proof of eligibility for exemption therefrom and
shall
be paid at or as soon as practicable following the Effective Time, without
interest;
(iv) upon
the
Effective Time, each outstanding Company Stock-Based Award that is not a
Company
Performance Share Unit Award shall be canceled, with the holder thereof becoming
entitled to receive, in full satisfaction of the rights of such holder with
respect thereto, an amount in cash equal to (A) the Merger Consideration
multiplied by (B) the number of shares of Company Common Stock subject to
such Company Stock-Based Award as of the Effective Time; provided
that all
amounts payable pursuant to this clause (iv) shall be subject to any
required withholding of taxes or proof of eligibility for exemption therefrom
and shall be paid at or as soon as practicable following the Effective Time,
without interest; and
(v) make
such
other changes to the Company Stock Plans as Parent and the Company may
reasonably agree are appropriate to give effect to the Merger.
(b)
As
soon
as reasonably practicable following the date of this Agreement, the Company
shall take all actions with respect to the 1996 ESPP as are necessary to
provide
that (i) participation in the 1996 ESPP shall be limited to those employees
who were participants on the date of this Agreement, (ii) such participants
may not increase their payroll deduction elections or purchase elections
from
those in effect on the date of this Agreement, (iii) any purchase rights
under the 1996 ESPP outstanding immediately before the Effective Time shall
be
used to purchase shares of Company Common Stock in accordance with the terms
of
the 1996 ESPP, and the shares of Company Common Stock purchased thereunder
shall
be canceled at the Effective Time and converted into the right to receive
the
Merger Consideration in accordance with Section 2.01(c), subject to applicable
withholding pursuant to Section 2.02(h), (iv) there shall not be any
additional accumulation periods under the 1996 ESPP (each, an “ESPP
Accumulation Period”)
commencing following the date of this Agreement under the 1996 ESPP
and
(v) the 1996 ESPP shall be suspended following the close of the current
ESPP Accumulation Periods and shall terminate, either at such time or
effective
immediately before
the
Effective Time.
(c)
As
soon
as reasonably practicable following the date of this Agreement, the Company
shall take all actions with respect to the UK ESPP as may be required to
effect
the following: (i) within 20 business days following the date of this Agreement,
the UK ESPP and all partnership share agreements with respect thereto shall
terminate, and following such termination, no participants in the UK ESPP
shall
have any rights with respect to the UK ESPP or any partnership share agreement,
other than rights with respect to shares of Company Common Stock held in
the
trust pursuant to the UK ESPP (the “UK
ESPP Trust”)
and
(ii) at the Effective Time, each share of Company Common Stock then held
by the
UK ESPP Trust shall be converted into the right to receive the Merger
Consideration in accordance with Section 2.01(c), subject to any applicable
withholding pursuant to Section 2.02(h).
(d)
The
Company shall ensure that, as of the Effective Time, all rights to acquire
shares of Company Common Stock, Company Stock Options, Company Restricted
Stock,
Company Stock-Based Awards or any other interests in respect of any capital
stock (including any “phantom” stock, stock appreciation rights or performance
units) of the Company or the Surviving Corporation shall be converted into
the
cash consideration specified with respect thereto pursuant to this Agreement
and, upon the payment of such cash consideration, no such rights shall
thereafter remain outstanding.
SECTION
5.05. Indemnification;
Advancement of Expenses; Exculpation and Insurance. (a)
Parent
shall cause the Surviving Corporation to assume the obligations with respect
to
all rights to indemnification, advancement of expenses and exculpation from
liabilities for acts or omissions occurring at or prior to the Effective
Time
now existing in favor of the current or former directors or officers of the
Company as provided in the Company Certificate, the Company By-laws or any
indemnification agreement between such directors or officers and the Company
(in
each case, as in effect on the date hereof), without further action, as of
the
Effective Time and such obligations shall survive the Merger and shall continue
in full force and effect in accordance with their terms.
The
Surviving Corporation shall not, for a period of six years following the
Effective Time, amend, modify or terminate the provisions of the Company
Certificate or the Company By-laws regarding the elimination of liability,
indemnification, and advancement of expenses in a manner that is adverse
to the
current or former directors or officers of the Company.
(b)
In
the
event that the Surviving Corporation or any of its successors or assigns
(i) consolidates with or merges into any other person and is not the
continuing or surviving corporation or entity of such consolidation or merger
or
(ii) transfers or conveys all or substantially all of its properties and
other assets to any person, then, and in each such case, Parent shall cause
proper provision to be made so that the successors and
assigns of the Surviving Corporation shall expressly assume the obligations
set
forth in this Section 5.05.
(c)
At
or
prior to the Effective Time, Parent shall obtain prepaid (or “tail”) directors’
and officers’ liability insurance providing for coverage in respect of acts or
omissions occurring at or prior to the Effective Time for six years from
the
Effective Time covering each person currently covered by the Company’s
directors’ and officers’ liability insurance policies, on terms with respect to
such coverage and amounts no less favorable than those of such policies,
taken
together, as in effect on the date hereof; provided,
however,
that in
satisfying its obligation under this Section 5.05(c), Parent shall in no
event be obligated to pay more in the aggregate than the amount set forth
in
Section 5.05(c) of the Parent Disclosure Schedule to obtain such coverage.
It is understood and agreed that in the event such coverage cannot be obtained
for such amount or less in the aggregate, Parent shall be obligated to provide
such coverage as may be obtained for such aggregate amount.
(d)
The
provisions of this Section 5.05 (i) are intended to be for the benefit
of, and will be enforceable by, each indemnified party, his or her heirs
and his
or her representatives and (ii) are in addition to, and not in substitution
for, any other rights to indemnification or contribution that any such person
may have by contract or otherwise.
SECTION
5.06. Fees
and Expenses. (a)
Except
as
provided in paragraph (b) of this Section 5.06, all fees and expenses
incurred in connection with this Agreement, the Merger and the other
transactions contemplated by this Agreement shall be paid by the party incurring
such fees or expenses, whether or not the Merger is consummated.
(b)
In
the
event that (i) this Agreement is terminated by Parent pursuant to
Section 7.01(e), (ii) this Agreement is terminated by the Company pursuant
to Section 7.01(f) or (iii) (A) prior to the obtaining of the
Stockholder Approval, a Takeover Proposal shall have been made to the Company
or
shall have been made directly to the stockholders of the Company generally
or
shall have otherwise become publicly known or any person shall have publicly
announced an intention (whether or not conditional) to make a Takeover Proposal,
(B) thereafter this Agreement is terminated by either Parent or the Company
pursuant to Section 7.01(b)(i) (but only if a vote to obtain the
Stockholder Approval or the Stockholders’ Meeting has not been held) or
Section 7.01(b)(iii) and (C) within 12 months after such
termination, the Company enters into a definitive agreement to consummate,
or
consummates, the transactions contemplated by any Takeover Proposal, then
the
Company shall pay Parent a fee equal to $41,500,000 (the “Termination
Fee”)
by
wire transfer of same-day funds (x) in the case of a payment required by
clause (i) above, on the first business day following the date of
termination of this Agreement, (y) in the case of a payment required by
clause (ii) above, on the date of termination of this Agreement and
(z) in the case of a payment required
by clause (iii) above, on the first business day following the date of the
first to occur of the events referred to in clause (iii)(C). For purposes
of clause (iii)(C) of the immediately preceding sentence only, the term
“Takeover Proposal” shall have the meaning assigned to such term in
Section 4.02(a) except that all references to “15% or more” therein shall
be deemed to be references to “greater than 50%”.
(c)
The
Company and Parent acknowledge and agree that the agreements contained in
Section 5.06(b) are an integral part of the transactions contemplated by
this Agreement, and that, without these agreements, Parent would not enter
into
this Agreement; accordingly, if the Company fails promptly to pay the amount
due
pursuant to Section 5.06(b), and, in order to obtain such payment, Parent
commences a suit that results in a judgment against the Company for the
Termination Fee, the Company shall pay to Parent its costs and expenses
(including attorneys’ fees and expenses) in connection with such suit, together
with interest on the amount of the Termination Fee from the date such payment
was required to be made until the date of payment at the prime rate of Citibank,
N.A. in effect on the date such payment was required to be made.
SECTION
5.07. Public
Announcements.
Except
with respect to any Company Adverse Recommendation Change made in accordance
with the terms of this Agreement, Parent and the Company shall consult with
each
other before issuing, and give each other the opportunity to review and comment
upon, any press release or other public statements with respect to the
transactions contemplated by this Agreement, including the Merger, and shall
not
issue any such press release or make any such public statement prior to such
consultation, except as such party may reasonably conclude may be required
by
applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange or national securities quotation
system. The parties agree that the initial press release to be issued with
respect to the transactions contemplated by this Agreement shall be in the
form
heretofore agreed to by the parties.
SECTION
5.08. Stockholder
Litigation.
The
Company shall give Parent the opportunity to participate in the defense or
settlement of any stockholder litigation against the Company and/or its
directors relating to the transactions contemplated by this Agreement, and
no
such settlement shall be agreed to without Parent’s prior written
consent.
SECTION
5.09. Employee
Matters. (a)
For
a
period beginning at the Effective Time and ending on the later of January
1,
2007, and the date that the employees of the Company who are employed primarily
in the United States and who remain in the employment of the Surviving
Corporation and its Subsidiaries following the Effective Time (the “Continuing
Employees”)
commence participation in the employee benefit plans maintained by Parent
and
its Subsidiaries (such period, the “Continuation
Period”),
the
Continuing Employees shall receive employee benefits that, in the aggregate,
are
substantially comparable to the employee benefits provided under the Company’s
employee benefit plans to such employees immediately prior to the
Effective Time;
provided
that
neither Parent nor the Surviving Corporation nor any of their Subsidiaries
shall
have any obligation (except to the extent provided below in this Section
5.09(a)) to issue or adopt any plans or arrangements providing for the issuance
of shares of capital stock, warrants, options, stock appreciation rights
or
other rights in respect of any shares of capital stock of any entity or any
securities convertible or exchangeable into such shares pursuant to any such
plans or arrangements; provided further
that no
plans or arrangements of the Company or any of its Subsidiaries providing
for
such issuance shall be taken into account in determining whether employee
benefits are substantially comparable in the aggregate and instead, in the
event
that the Continuation Period covers the time that Parent makes its regular
annual equity compensation grants to employees of Parent and its Subsidiaries
for 2007, the Continuing Employees shall be entitled to equity compensation
opportunities at such time to the same extent as other similarly situated
employees of Parent and its Subsidiaries. Following the Continuation Period,
the
Continuing Employees shall be entitled to participate in the employee benefit
plans maintained by Parent and its Subsidiaries (including equity-based and
equity-related plans, but excluding any defined benefit pension plans and
any
post-employment health and other post-employment welfare plans) to the same
extent as other similarly situated employees of Parent and its
Subsidiaries.
(b)
Nothing
contained herein shall be construed as requiring, and the Company shall take
no
action that would have the effect of requiring, Parent or the Surviving
Corporation to continue any specific plans or to continue the employment
of any
specific person.
(c)
Except
(i) as would result in any duplication of benefits for the same period of
service or (ii) to the extent that the Continuing Employees continue to
participate in the Company’s employee benefit plans following the Effective
Time, Parent shall, and shall cause the Surviving Corporation to, recognize
the
service of each Continuing Employee with the Company and its Subsidiaries
as if
such service had been performed with Parent (A) for purposes of eligibility
for
vacation under Parent’s vacation program, (B) for purposes of eligibility and
participation under any health or welfare plan maintained by Parent (other
than
any post-employment health or post-employment welfare plan), (C) unless covered
under another individual arrangement with or of the Company, for benefit
accrual
purposes under Parent’s severance plan and (D) for purposes of eligibility to
participate and vesting under any “employee pension benefit plan” (as defined in
Section 3(2) of ERISA) maintained by Parent or its Subsidiaries that is a
defined contribution plan (in the case of each of clauses (A), (B), (C) and
(D),
solely to the extent that Parent makes such plan or program available to
Continuing Employees), but not for purposes of any other employee benefit
plan
of Parent.
(d)
With
respect to any welfare plan maintained by Parent in which Continuing Employees
are eligible to participate after the Effective Time, Parent shall, and shall
cause the Surviving Corporation to, (i) use reasonable efforts to waive
all limitations
as to preexisting conditions and exclusions with respect to participation
and
coverage requirements applicable to such employees to the extent such conditions
and exclusions were satisfied or did not apply to such employees under the
welfare plans of the Company and its Subsidiaries prior to the Effective
Time
and (ii) provide each Continuing Employee with credit for any co-payments
and deductibles paid prior to the Effective Time in satisfying any analogous
deductible or out-of-pocket requirements to the extent applicable under any
such
plan.
(e)
With
respect to the employees of the Company who are employed primarily outside
the
United States, following the Effective Time, Parent and its Subsidiaries
will
provide such employees with employee benefits in accordance with applicable
law.
SECTION
5.10. Company
Debentures.
Each of
the Company, Parent and Sub shall take each action required to be taken by
such
party pursuant to the Indenture dated as of August 20, 2003, between the
Company and The Bank of New York, as trustee, with respect to the Company
Debentures, as necessary to consummate the Merger and the other transactions
contemplated by this Agreement in compliance therewith.
SECTION
5.11. Rights
Agreement.
The
Board of Directors of the Company shall take all further action (in addition
to
that referred to in Section 3.01(v)) reasonably requested by Parent in
order to render the Rights issued pursuant to the Rights Agreement inapplicable
to the Merger and the other transactions contemplated by this Agreement.
Except
as provided above with respect to the Merger and the other transactions
contemplated by this Agreement, the Board of Directors of the Company shall
not,
without the prior written consent of Parent, (a) amend the Rights Agreement
or
(b) take any action with respect to, or make any determination under, the
Rights
Agreement, including a redemption of the Rights or any action to facilitate
a
Takeover Proposal.
SECTION
5.12. Cooperation
With Respect to Financing. Except
to
the extent prohibited by applicable statute, law, rule or regulation, the
Company shall provide on a timely basis, and shall use its reasonable efforts
to
cause its officers, employees and advisers to provide on a timely basis,
all
reasonable cooperation in connection with the arrangement of the financing
contemplated by the Commitment Letter, or any alternative financing Parent
may
seek in order to consummate the Merger and the other transactions contemplated
by this Agreement, including (i) facilitating the pledge of collateral
(effective as of the Closing), (ii) providing financial and other pertinent
information regarding the Company as may be reasonably requested by Parent,
including all financial statements and financial data of the type required
by
Regulation S X and Regulation S-K under the Securities Act in a registered
offering of securities, (iii) providing other reasonably requested certificates
or documents, including a customary certificate of the chief financial officer
of the Company with respect to solvency matters, (iv) requesting the Company’s
independent auditors to provide customary consents and comfort
letters and
(v)
requesting such customary legal opinions as may be reasonably requested by
Parent.
Conditions
Precedent
SECTION
6.01. Conditions
to Each Party’s Obligation to Effect the Merger.
The
respective obligation of each party to effect the Merger is subject to the
satisfaction or (to the extent permitted by law) waiver on or prior to the
Closing Date of the following conditions:
(a)
Stockholder
Approval.
The
Stockholder Approval shall have been obtained.
(b)
Antitrust.
The
waiting period (and any extension thereof) applicable to the Merger under
the
HSR Act shall have been terminated or shall have expired, and all applicable
approvals and waiting periods under the antitrust laws of Germany and Spain
(if
applicable) shall have been obtained, expired or been terminated, as
applicable.
(c)
No
Injunctions or Restraints.
No
temporary restraining order, preliminary or permanent injunction or other
judgment or order issued by any court of competent jurisdiction or other
statute, law, rule, legal restraint or prohibition (collectively, “Restraints”)
shall
be in effect (i) preventing the consummation of the Merger or (ii) which
otherwise has had or would reasonably be expected to have a Material Adverse
Effect.
SECTION
6.02. Conditions
to Obligations of Parent and Sub.
The
obligations of Parent and Sub to effect the Merger are further subject to
the
satisfaction or (to the extent permitted by law) waiver by Parent on or prior
to
the Closing Date of the following conditions:
(a)
Representations
and Warranties.
(i) The representations and warranties of the Company contained in
the first, second, third, fourth, fifth, sixth (other than grant dates, vesting
schedules and holders’ names), ninth, tenth, eleventh, twelfth, thirteenth and
fifteenth sentences of Section 3.01(c), the first four sentences of Section
3.01(d) and Section 3.01(r) of this Agreement shall be true and correct as
of
the date of this Agreement and as of the Closing Date as though made on the
Closing Date (except to the extent such representations and warranties expressly
relate to an earlier date, in which case as of such earlier date) and (ii)
all
other representations and warranties of the Company contained in this Agreement
shall be true and correct (disregarding all qualifications or limitations
as to
“materiality”, “Material Adverse Effect”, “Material Adverse Change” and words of
similar import set forth therein) as of the date of this Agreement and as
of the
Closing Date as though made on the Closing Date (except to the extent
such representations and warranties expressly relate to an earlier date,
in
which case as of such earlier date), except where the failure of such
representations and warranties to be so true and correct, individually and
in
the aggregate, has not had and would not reasonably be expected to have a
Material Adverse Effect. Parent shall have received a certificate signed
on
behalf of the Company by the chief executive officer and the chief financial
officer of the Company to such effect.
(b)
Performance
of Obligations of the Company.
The
Company shall have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior to the Closing Date,
and
Parent shall have received a certificate signed on behalf of the Company
by the
chief executive officer and the chief financial officer of the Company to
such
effect.
(c)
No
Litigation.
There
shall not be pending or threatened any suit, action or proceeding by any
Governmental Entity in the United States, Japan or the European Union or
any
member state thereof (i) challenging the acquisition by Parent or Sub of
any shares of Company Common Stock, seeking to restrain or prohibit the
consummation of the Merger, or seeking to place limitations on the ownership
of
shares of Company Common Stock (or shares of capital stock of the Surviving
Corporation) by Parent or Sub or seeking to obtain from the Company, Parent
or
Sub any damages that are material in relation to the Company, (ii) seeking
to prohibit or materially limit the ownership or operation by the Company,
Parent or any of their respective Subsidiaries of any portion of any business
or
of any assets of the Company, Parent or any of their respective Subsidiaries,
or
to compel the Company, Parent or any of their respective Subsidiaries to
divest
or hold separate any portion of any business or of any assets of the Company,
Parent or any of their respective Subsidiaries, as a result of the Merger,
(iii) seeking to prohibit Parent or any of its Subsidiaries from
effectively controlling in any material respect the business or operations
of
the Company or any of its Subsidiaries or (iv) otherwise having, or that
would reasonably be expected to have, a Material Adverse Effect.
(d)
Restraints.
No
Restraint that would reasonably be expected to result, directly or indirectly,
in any of the effects referred to in clauses (i) through (iv) of
paragraph (c) of this Section 6.02 shall be in effect.
(e)
Pending
Transaction.
The
acquisition by the Company of Linco Research, Incorporated, LINCO Diagnostic
Services, Inc. and certain real estate assets relating thereto, as contemplated
by the Stock Purchase Agreement, dated as of March 23, 2006, among Upstate
Group, L.L.C., The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Revocable Living Trust and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, and the Purchase and Sale Agreement, dated as of March 23, 2006,
between Upstate Group, L.L.C. and Paragon Properties, L.C., shall have been
consummated in accordance with the terms of such agreements as in effect
on the
date hereof, as contemplated by Section 4.01 of this Agreement.
SECTION
6.03. Conditions
to Obligation of the Company.
The
obligation of the Company to effect the Merger is further subject to the
satisfaction or (to the extent permitted by law) waiver by the Company on
or
prior to the Closing Date of the following conditions:
(a)
Representations
and Warranties.
(i) The representations and warranties of Parent and Sub contained in the
first four sentences of Section 3.02(b) of this Agreement shall be true and
correct as of the date of this Agreement and as of the Closing Date as though
made on the Closing Date (except to the extent such representations and
warranties expressly relate to an earlier date, in which case as of such
earlier
date) and (ii) all other representations and warranties of Parent and Sub
contained in this Agreement shall be true and correct (disregarding all
qualifications or limitations as to “materiality” and words of similar import
set forth therein) as of the date of this Agreement and as of the Closing
Date
as though made on the Closing Date (except to the extent such representations
and warranties expressly relate to an earlier date, in which case as of such
earlier date), except where the failure of such representations and warranties
to be so true and correct, individually and in the aggregate, has not had
and
would not reasonably be expected to have a material adverse effect on the
ability of Parent or Sub to perform its obligations under this Agreement
or to
consummate the Merger or the other transactions contemplated by this Agreement,
or materially delay the consummation of the Merger or the other transactions
contemplated by this Agreement. The Company shall have received a certificate
signed on behalf of Parent by the chief executive officer and the chief
financial officer of Parent to such effect.
(b)
Performance
of Obligations of Parent and Sub.
Parent
and Sub shall have performed in all material respects all obligations required
to be performed by them under this Agreement at or prior to the Closing Date,
and the Company shall have received a certificate signed on behalf of Parent
by
the chief executive officer and the chief financial officer of Parent to
such
effect.
SECTION
6.04. Frustration
of Closing Conditions.
None of
the Company, Parent or Sub may rely on the failure of any condition set forth
in
Section 6.01, 6.02 or 6.03, as the case may be, to be satisfied if such
failure was caused by such party’s failure to act in good faith or to use its
commercially reasonable efforts to consummate the Merger and the other
transactions contemplated by this Agreement, as required by and subject to
Section 5.03.
Termination,
Amendment and Waiver
SECTION
7.01. Termination.
This
Agreement may be terminated at any time prior to the Effective Time, whether
before or after receipt of the Stockholder Approval:
(a)
by
mutual
written consent of Parent, Sub and the Company;
(b)
by
either
Parent or the Company:
(i) if
the
Merger shall not have been consummated on or before September 30, 2006;
provided,
however,
that
the right to terminate this Agreement under this Section 7.01(b)(i) shall
not be available to any party whose breach of a representation or warranty in
this Agreement or whose action or failure to act has been a principal cause
of
or resulted in the failure of the Merger to be consummated on or before such
date;
(ii) if
any
Restraint having any of the effects set forth in Section 6.01(c) shall be
in effect and shall have become final and nonappealable; or
(iii) if
the
Stockholder Approval shall not have been obtained at the Stockholders’ Meeting
duly convened therefor or at any adjournment or postponement
thereof;
(c)
by
Parent
(i) if the Company shall have breached or failed to perform any of its
representations, warranties, covenants or agreements set forth in this
Agreement, which breach or failure to perform (A) would give rise to the
failure of a condition set forth in Section 6.02(a) or 6.02(b) and
(B) is incapable of being cured by the Company within 30 calendar days
following receipt of written notice of such breach or failure to perform
from
Parent or (ii) if any Restraint having the effects referred to in
clauses (i) through (iv) of Section 6.02(c) shall be in
effect and shall have become final and nonappealable;
(d)
by
the
Company, if Parent shall have breached or failed to perform any of its
representations, warranties, covenants or agreements set forth in this
Agreement, which breach or failure to perform (A) would give rise to the
failure of a condition set forth in Section 6.03(a) or 6.03(b) and
(B) is incapable of being cured by Parent within 30 calendar days
following receipt of written notice of such breach or failure to perform
from
the Company;
(e)
by
Parent, in the event that prior to the obtaining of the Stockholder Approval
(i) a Company Adverse Recommendation Change shall have occurred or
(ii) the Board of Directors of the Company fails to publicly reaffirm its
recommendation of this Agreement, the Merger or the other transactions
contemplated by this Agreement within ten business days of receipt of a
written request by Parent to provide such reaffirmation following a Takeover
Proposal that is publicly announced or that otherwise becomes publicly known;
or
(f)
by
the
Company in accordance with Section 4.02(b).
SECTION
7.02. Effect
of Termination.
In the
event of termination of this Agreement by either the Company or Parent
as
provided in Section 7.01, this Agreement shall forthwith become void and
have no effect, without any liability or obligation on the part of Parent,
Sub
or the Company, other than the provisions of Section 3.01(s), Section 3.02(f),
the penultimate sentence of Section 5.02, Section 5.06, this
Section 7.02 and Article VIII, which provisions shall survive such
termination, and except to the extent that such termination results from
the
wilful and material breach by a party of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
SECTION
7.03. Amendment.
This
Agreement may be amended by the parties hereto at any time before or after
receipt of the Stockholder Approval; provided,
however,
that
after such approval has been obtained, there shall be made no amendment that
by
law requires further approval by the stockholders of the Company without
such
approval having been obtained. This Agreement may not be amended except by
an
instrument in writing signed on behalf of each of the parties
hereto.
SECTION
7.04. Extension;
Waiver.
At any
time prior to the Effective Time, the parties may (a) extend the time for
the performance of any of the obligations or other acts of the other parties,
(b) to the extent permitted by law, waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (c) subject to the proviso to the first sentence of
Section 7.03 and to the extent permitted by law, waive compliance with any
of the agreements or conditions contained herein. Any agreement on the part
of a
party to any such extension or waiver shall be valid only if set forth in
an
instrument in writing signed on behalf of such party. The failure of any
party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
SECTION
7.05. Procedure
for Termination or Amendment.
A
termination of this Agreement pursuant to Section 7.01 or an amendment of
this Agreement pursuant to Section 7.03 shall, in order to be effective,
require, in the case of Parent or the Company, action by its Board of Directors
or, with respect to any amendment of this Agreement pursuant to
Section 7.03, the duly authorized committee of its Board of Directors to
the extent permitted by law.
General
Provisions
SECTION
8.01. Nonsurvival
of Representations and Warranties.
None of
the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time. This
Section 8.01 shall not limit any covenant or agreement of the parties which
by its terms contemplates performance after the Effective Time.
SECTION
8.02. Notices.
Except
for notices that are specifically required by the terms of this Agreement
to be
delivered orally, all notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given
if
delivered personally or sent by overnight courier (providing 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 Sub, to:
Millipore
Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
with
a
copy to:
Cravath,
Swaine & ▇▇▇▇▇ LLP
Worldwide
Plaza
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, Esq.
if
to the
Company, to:
Serologicals
Corporation
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
with
a
copy to:
King
& Spalding LLP
1185
Avenue of the Americas
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
E. ▇▇▇▇▇▇▇ ▇▇▇▇▇, II, Esq.
and
with
a copy to:
King
& Spalding LLP
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇. ▇▇▇▇ ▇▇▇▇▇, II, Esq.
SECTION
8.03. Definitions.
For
purposes of this Agreement:
(a)
an
“Affiliate”
of
any
person means another person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such first person;
(b)
“Knowledge”
of
any
person that is not an individual means, with respect to any matter in question,
the actual knowledge of such person’s executive officers after making due
inquiry of the other executives and managers having primary responsibility
for
such matter;
(c)
“Material
Adverse Change”
or
“Material
Adverse Effect”
means
any change, effect, event, occurrence, state of facts or development which
individually or in the aggregate (i) would reasonably be expected to result
in
any change or effect that is materially adverse to the business, financial
condition, properties, assets, liabilities (contingent or otherwise), or
results
of operations of the Company and its Subsidiaries, taken as a whole, or
(ii) would reasonably be expected to prevent or materially impede,
interfere with, hinder or delay the consummation by the Company of the Merger
or
the other transactions contemplated by this Agreement; provided
that
none of the following shall be deemed, either alone or in combination, to
constitute, and none of the following shall be taken into account in determining
whether there has been or will be, a Material Adverse Effect or a Material
Adverse Change: (A) any change, effect, event, occurrence, state of facts
or development attributable to the United States economy or securities markets
in general; (B) any change, effect, event, occurrence, state of facts or
development attributable to conditions affecting the industry in which the
Company participates, so long as the effects do not disproportionately impact
the Company; (C) any change in GAAP or regulatory accounting principles or
interpretations thereof; and (D) any change, in and of itself, in the Company’s
stock price or trading volume, or any failure, in and of itself, by the Company
to meet published revenue or earnings projections (it being understood that
the
facts or occurrences giving rise or contributing to any such change or failure
may be deemed to constitute, or be taken into account in determining whether
there has been or would reasonably be expected to be, a Material Adverse
Effect
or a Material Adverse Change);
(d)
“Permitted
Liens”
means
(i) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens
arising or incurred in the ordinary course of business relating to obligations
that are not delinquent or that are being contested in good faith by the
Company
or any of its Subsidiaries and for which the relevant party has established
adequate reserves in accordance with GAAP, (ii) Liens for taxes that are
not due and payable or that may thereafter be paid without interest or penalty,
(iii) easements, covenants, rights-of-way and other encumbrances or
restrictions of record that, individually or in the aggregate, do not materially
impair, and would not reasonably be expected
to materially impair, the value or the continued use and operation of the
assets
to which they relate, (iv) zoning, building and other similar codes and
regulations, and (v) Liens (other than Liens that secure indebtedness)
that, individually or in the aggregate, do not materially interfere with,
and
would not reasonably be expected to materially interfere with, the ability
of
the Company or any of its Subsidiaries to conduct their respective businesses
as
currently conducted;
(e)
“person”
means
an individual, corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization or other entity;
and
(f)
a
“Subsidiary”
of
any
person means another person, an amount of the voting securities, other voting
rights or voting partnership interests of which is sufficient to elect at
least
a majority of its board of directors or other governing body (or, if there
are
no such voting interests, 50% or more of the equity interests of which) is
owned
directly or indirectly by such first person.
SECTION
8.04. Interpretation.
When a
reference is made in this Agreement to an Article, a Section, Exhibit or
Schedule, such reference shall be to an Article of, a Section of, or an Exhibit
or Schedule to, this Agreement unless otherwise indicated. The table of contents
and headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this Agreement.
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 words “hereof”, “herein” and “hereunder” and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and
not to any particular provision of this Agreement. References to “this
Agreement” shall include the Company Disclosure Schedule. All terms defined in
this Agreement shall have the defined meanings when used in any certificate
or
other document made or delivered pursuant hereto unless otherwise defined
therein. The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well
as to the feminine and neuter genders of such term. Any agreement, instrument
or
statute defined or referred to herein or in any agreement or instrument that
is
referred to herein means such agreement, instrument or statute as from time
to
time amended, modified or supplemented, including (in the case of agreements
or
instruments) by waiver or consent and (in the case of statutes) by succession
of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
SECTION
8.05. Consents
and Approvals.
For any
matter under this Agreement requiring the consent or approval of any party
to be
valid and binding on the parties hereto, such consent or approval must be
in
writing.
SECTION
8.06. Counterparts.
This
Agreement may be executed in one or more counterparts (including by facsimile),
all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties.
SECTION
8.07. Entire
Agreement; No Third-Party Beneficiaries.
This
Agreement and the Confidentiality Agreement (a) constitute the entire
agreement, and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of this Agreement
and the Confidentiality Agreement and (b) except for the provisions of
Article II, Section 5.04 and Section 5.05, are not intended to
and do not confer upon any person other than the parties any legal or equitable
rights or remedies.
SECTION
8.08. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN
UNDER
APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION
8.09. Assignment.
Neither
this Agreement nor any of the rights, interests or obligations hereunder
shall
be assigned, in whole or in part, by operation of law or otherwise by any
of the
parties without the prior written consent of the other parties, and any
assignment without such consent shall be null and void, except that Sub,
upon
prior written notice to the Company, may assign, in its sole discretion,
any of
or all its rights, interests and obligations under this Agreement to Parent
or
to any direct or indirect wholly owned Subsidiary of Parent, but no such
assignment shall relieve Parent or Sub of any of its obligations hereunder.
Subject to the preceding sentence, this Agreement will be binding upon, inure
to
the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
SECTION
8.10. Specific
Enforcement; Consent to Jurisdiction.
The
parties agree that irreparable damage would occur and that the parties would
not
have any adequate remedy at law in the event that any of the provisions of
this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties 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 in any Federal
court located in the State of Delaware or in any state court in the State
of
Delaware, this being in addition to any other remedy to which they are entitled
at law or in equity. In addition, each of the parties hereto (a) consents
to submit itself to the personal jurisdiction of any Federal court located
in
the State of Delaware or of any state court located in the State of Delaware
in
the event any dispute arises out of this Agreement or the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from
any such court and (c) agrees that it will not bring any action
relating to this Agreement or the transactions contemplated by this Agreement
in
any court other than a Federal court located in the State of Delaware or
a state
court located in the State of Delaware.
SECTION
8.11. Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions
and
provisions of this Agreement shall nevertheless remain in full force and
effect.
Upon such determination that any term or other provision is invalid, illegal
or
incapable of being enforced, the parties hereto shall negotiate in good faith
to
modify this Agreement so as to effect the original intent of the parties
as
closely as possible to the fullest extent permitted by applicable law in
an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
SECTION
8.12. Waiver
of Jury Trial.
Each
party hereto hereby waives, to the fullest extent permitted by applicable
law,
any right it may have to a trial by jury in respect of any suit, action or
other
proceeding arising out of this Agreement or the transactions contemplated
hereby. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that
such
party would not, in the event of any action, suit or proceeding, seek to
enforce
the foregoing waiver and (b) acknowledges that it and the other parties hereto
have been induced to enter into this Agreement by, among other things, the
mutual waiver and certifications in this Section 8.12.
IN
WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement to
be
signed by their respective officers hereunto duly authorized, all as of the
date
first written above.
|
MILLIPORE
CORPORATION,
|
|
|
by
|
|
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title:
President and Chief Executive
Officer
|
|
|
CHARLESTON
ACQUISITION CORP.,
|
|
|
by
|
|
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title:
President
|
|
|
SEROLOGICALS
CORPORATION,
|
|
|
by
|
|
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇
|
|
|
Title:
President and Chief Executive
Officer
|
|
Index
of Defined Terms
Term
|
1996
ESPP
|
Section
3.01(c)
|
|
409A
Authorities
|
Section
3.01(l)
|
|
Acquisition
Agreement
|
Section 4.02(b)
|
|
Actions
|
Section 4.01(d)
|
|
Affiliate
|
Section 8.03(a)
|
|
Agreement
|
Preamble
|
|
AJCA
|
Section
3.01(l)
|
|
Appraisal
Shares
|
Section 2.01(d)
|
|
Certificate
|
Section 2.01(c)
|
|
Certificate
of Merger
|
Section 1.03
|
|
Closing
|
Section 1.02
|
|
Closing
Date
|
Section 1.02
|
|
Code
|
Section 2.02(h)
|
|
Commitment
Letter
|
Section 3.02(e)
|
|
Commonly
Controlled Entity
|
Section 3.01(k)
|
|
Company
|
Preamble
|
|
Company
Adverse Recommendation Change
|
Section 4.02(b)
|
|
Company
Benefit Agreements
|
Section 3.01(g)
|
|
Company
Benefit Plans
|
Section 3.01(k)
|
|
Company
By-laws
|
Section 3.01(a)
|
|
Company
Certificate
|
Section 1.05(a)
|
|
Company
Common Stock
|
Preamble
|
|
Company
Debentures
|
Section 3.01(c)
|
|
Company
Disclosure Schedule
|
Section 3.01
|
|
Company
Pension Plan
|
Section 3.01(l)
|
|
Company
Performance Share Unit Award
|
Section
5.04(a)
|
|
Company
Preferred Stock
|
Section
3.01(c)
|
|
Company
Restricted Stock
|
Section
3.01(c)
|
|
Company
SEC Documents
|
Section 3.01(e)
|
|
Company
Stock-Based Awards
|
Section 3.01(c)
|
|
Company
Stock Options
|
Section 3.01(c)
|
|
Company
Stock Plans
|
Section 3.01(c)
|
|
Confidentiality
Agreement
|
Section 5.02
|
|
Continuation
Period
|
Section 5.09(a)
|
|
Continuing
Employees
|
Section
5.09(a)
|
|
Contract
|
Section 3.01(d)
|
|
DGCL
|
Section 1.01
|
|
Effective
Time
|
Section 1.03
|
|
Environmental
Laws
|
Section 3.01(j)
|
|
ERISA
|
Section 3.01(j)
|
|
ESPP
Accumulation Period
|
Section
5.04(b)
|
|
ESPPs
|
Section 3.01(c)
|
|
Exchange
Act
|
Section 3.01(d)
|
|
Exchange
Fund
|
Section 2.02(a)
|
|
Filed
Company SEC Documents
|
Section 3.01(e)
|
|
GAAP
|
Section 3.01(e)
|
|
Governmental
Entity
|
Section 3.01(d)
|
|
Hazardous
Materials
|
Section 3.01(j)
|
|
HSR
Act
|
Section 3.01(d)
|
|
HSR
Filing
|
Section 5.03
|
|
Intellectual
Property Rights
|
Section 3.01(p)
|
|
IRS
|
Section 3.01(l)
|
|
Knowledge
|
Section 8.03(b)
|
|
Leases
|
Section 3.01(o)
|
|
Leased
Real Property
|
Section 3.01(o)
|
|
Legal
Provisions
|
Section 3.01(j)
|
|
Liens
|
Section 3.01(b)
|
|
Material
Adverse Change
|
Section 8.03(c)
|
|
Material
Adverse Effect
|
Section 8.03(c)
|
|
Merger
|
Preamble
|
|
Merger
Consideration
|
Section 2.01(c)
|
|
Non-Affiliate
Plan Fiduciary
|
Section
3.01(l)
|
|
Nonqualified
Deferred Compensation Plan
|
Section
3.01(l)
|
|
Owned
Real Property
|
Section 3.01(o)
|
|
Parent
|
Preamble
|
|
Parent
Disclosure Schedule
|
Section
3.02
|
|
Participant
|
Section
3.01(g)
|
|
Paying
Agent
|
Section 2.02(a)
|
|
Permits
|
Section 3.01(j)
|
|
Permitted
Liens
|
Section 8.03(d)
|
|
person
|
Section 8.03(e)
|
|
Post-Signing
Returns
|
Section 4.01(d)
|
|
Primary
Company Executives
|
Section 3.01(m)
|
|
Proxy
Statement
|
Section 3.01(d)
|
|
Representatives
|
Section 4.02(a)
|
|
Real
Property
|
Section 3.01(o)
|
|
Release
|
Section 3.01(j)
|
|
Restraints
|
Section 6.01(c)
|
|
Rights
|
Section 3.01(c)
|
|
Rights
Agreement
|
Section 3.01(c)
|
|
SEC
|
Section 3.01(d)
|
|
Section 203
|
Section 3.01(r)
|
|
Section 262
|
Section 2.01(d)
|
|
Securities
Act
|
Section 3.01(e)
|
|
SOX
|
Section
3.01(e)
|
|
Stockholder
Approval
|
Section 3.01(q)
|
|
Stockholders’
Meeting
|
Section 5.01(b)
|
|
Sub
|
Preamble
|
|
Subsidiary
|
Section 8.03(f)
|
|
Superior
Proposal
|
Section 4.02(a)
|
|
Surviving
Corporation
|
Section 1.01
|
|
Takeover
Proposal
|
Section 4.02(a)
|
|
taxes
|
Section 3.01(n)
|
|
taxing
authority
|
Section 3.01(n)
|
|
tax
returns
|
Section 3.01(n)
|
|
Termination
Fee
|
Section 5.06(b)
|
|
UK
ESPP
|
Section
3.01(c)
|
|
UK
ESPP Trust
|
Section 5.04(c)
|
TO
THE MERGER AGREEMENT
Restated
Certificate
of Incorporation
of
the
Surviving Corporation
FIRST:
The
name of the corporation (hereinafter called the “Corporation”)
is
Serologicals Corporation.
SECOND:
The
address, including street, number, city, and county, of the registered office
of
the Corporation in the State of Delaware is Corporate Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New Castle; and the name of the
registered agent of the Corporation in the State of Delaware at such address
is
The Corporation Trust Company.
THIRD:
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.
FOURTH:
The
aggregate number of shares which the Corporation shall have authority to issue
is 1,000 shares of Common Stock, par value $0.01 per share.
FIFTH:
In
furtherance and not in limitation of the powers conferred upon it by law, the
Board of Directors of the Corporation is expressly authorized to adopt, amend
or
repeal the By-laws of the Corporation.
SIXTH:
To the
fullest extent permitted by the General Corporation Law of the State of Delaware
as it now exists and as it may hereafter be amended, no director or officer
of
the Corporation shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
or
officer; provided,
however,
that
nothing contained in this Article SIXTH shall eliminate or limit the liability
of a director or officer (i) for any breach of the director’s or officer’s duty
of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director or officer
derived an improper personal benefit. No amendment to or repeal of this Article
SIXTH shall apply to or have any effect on the liability or alleged liability
of
any director or officer of the Corporation for or with respect to any acts
or
omissions of such director or officer occurring prior to such amendment or
repeal.
SEVENTH:
The
Corporation shall, to the fullest extent permitted by Section 145 of the
General Corporation Law of the State of Delaware, as the same may be amended
and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said Section from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said Section. Such
indemnification shall be mandatory and not discretionary. The indemnification
provided for herein shall not be deemed exclusive of any other rights to which
those indemnified may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his
or her official capacity and as to action in another capacity while holding
such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person. Any repeal or modification
of
this Article SEVENTH shall not adversely affect any right to indemnification
of
any persons existing at the time of such repeal or modification with respect
to
any matter occurring prior to such repeal or modification.
The
Corporation shall to the fullest extent permitted by the General Corporation
Law
of the State of Delaware advance all costs and expenses (including, without
limitation, attorneys’ fees and expenses) incurred by any director or officer
within 15 days of the presentation of same to the Corporation, with respect
to any one or more actions, suits or proceedings, whether civil, criminal,
administrative or investigative, so long as, if required by the General
Corporation Law of the State of Delaware, the Corporation receives from the
director or officer an unsecured undertaking to repay such expenses if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation under the General Corporation Law of the State
of
Delaware. Such obligation to advance costs and expenses shall be mandatory,
and
not discretionary, and shall include, without limitation, costs and expenses
incurred in asserting affirmative defenses, counterclaims and cross claims.
Such
undertaking to repay may, if first requested in writing by the applicable
director or officer, be on behalf of (rather than by) such director or officer,
provided
that in
such case the Corporation shall have the right to approve the party making
such
undertaking.
EIGHTH:
Unless
and except to the extent that the By-laws of the Corporation shall so require,
the election of directors of the Corporation need not be by written
ballot.
2