EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CABLE DESIGN TECHNOLOGIES CORPORATION,
BC MERGER CORP.
AND
▇▇▇▇▇▇ INC.
DATED AS OF FEBRUARY 4, 2004
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
ARTICLE I THE MERGER..............................................................................................2
SECTION 1.1 The Merger...................................................................................2
SECTION 1.2 Closing......................................................................................2
SECTION 1.3 Effective Time...............................................................................2
SECTION 1.4 Effects of The Merger........................................................................2
SECTION 1.5 Organizational Documents of the Surviving Corporation........................................2
SECTION 1.6 Directors and Officers of the Surviving Corporation..........................................3
SECTION 1.7 CDT Charter Amendment........................................................................3
SECTION 1.8 Alternative Structure........................................................................3
ARTICLE II EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES........................................................3
SECTION 2.1 Effect on Capital Stock.....................................................................3
SECTION 2.2 Exchange of Shares and Certificates.........................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF CDT AND MERGER SUB..................................................7
SECTION 3.1 Organization, Standing and Corporate Power; Charter Documents; Subsidiaries.................8
SECTION 3.2 Capital Structure...........................................................................9
SECTION 3.3 Authority; Board Approval; Voting Requirements; No Conflict; Required Filings and
Consents.............................................................................11
SECTION 3.4 SEC Documents; Financial Statements........................................................13
SECTION 3.5 Information Supplied.......................................................................14
SECTION 3.6 Absence of Certain Changes or Events.......................................................15
SECTION 3.7 Compliance with Applicable Laws; Permits; Litigation.......................................15
SECTION 3.8 Labor and Other Employment Matters.........................................................16
SECTION 3.9 Benefit Plans..............................................................................17
SECTION 3.10 Taxes......................................................................................19
SECTION 3.11 Environmental Matters......................................................................21
SECTION 3.12 Intellectual Property......................................................................22
SECTION 3.13 State Takeover Statutes....................................................................22
SECTION 3.14 Real Estate................................................................................22
SECTION 3.15 Brokers....................................................................................24
SECTION 3.16 Opinion of Financial Advisor...............................................................24
SECTION 3.17 Ownership of Belden Common Stock...........................................................24
SECTION 3.18 Material Contracts.........................................................................24
SECTION 3.19 Title to Assets............................................................................25
SECTION 3.20 Insurance Policies.........................................................................25
SECTION 3.21 Interested Party Transactions..............................................................26
SECTION 3.22 CDT Rights Agreement.......................................................................26
SECTION 3.23 Value-Added Resellers, Distributors and Suppliers..........................................26
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BELDEN..............................................................26
SECTION 4.1 Organization, Standing and Corporate Power; Charter Documents; Subsidiaries................27
SECTION 4.2 Capital Structure..........................................................................27
SECTION 4.3 Authority; Board Approval; Voting Requirements; No Conflict; Required Filings and
Consents.............................................................................29
SECTION 4.4 SEC Documents; Financial Statements........................................................31
SECTION 4.5 Information Supplied.......................................................................32
SECTION 4.6 Absence of Certain Changes or Events.......................................................32
SECTION 4.7 Compliance with Applicable Laws; Permits; Litigation.......................................33
SECTION 4.8 Labor and Other Employment Matters.........................................................33
SECTION 4.9 Benefit Plans..............................................................................34
SECTION 4.10 Taxes......................................................................................36
SECTION 4.11 Environmental Matters......................................................................38
SECTION 4.12 Intellectual Property......................................................................38
SECTION 4.13 State Takeover Statutes....................................................................39
SECTION 4.14 Real Estate................................................................................39
SECTION 4.15 Brokers....................................................................................41
SECTION 4.16 Opinion of Financial Advisor...............................................................41
SECTION 4.17 Ownership of CDT Common Stock..............................................................41
SECTION 4.18 Material Contracts.........................................................................41
SECTION 4.19 Title to Assets............................................................................42
SECTION 4.20 Insurance Policies.........................................................................43
SECTION 4.21 Interested Party Transactions..............................................................43
SECTION 4.22 Belden Rights Agreement....................................................................43
SECTION 4.23 Value-Added Resellers, Distributors and Suppliers..........................................43
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS..............................................................43
SECTION 5.1 Conduct of Business........................................................................43
SECTION 5.2 No Solicitation............................................................................48
ARTICLE VI ADDITIONAL AGREEMENTS.................................................................................51
SECTION 6.1 Preparation of SEC Documents; Stockholders' Meetings.......................................51
SECTION 6.2 Accountant's Letters.......................................................................53
SECTION 6.3 Access to Information; Confidentiality.....................................................53
SECTION 6.4 Commercially Reasonable Efforts............................................................53
SECTION 6.5 Indemnification and Insurance..............................................................55
SECTION 6.6 Fees and Expenses..........................................................................56
SECTION 6.7 Public Announcements.......................................................................56
SECTION 6.8 Listing....................................................................................56
SECTION 6.9 Tax-Free Reorganization Treatment..........................................................56
SECTION 6.10 Conveyance Taxes...........................................................................56
SECTION 6.11 Equity Awards and Employee Benefits........................................................56
SECTION 6.12 Consents of Accountants....................................................................59
SECTION 6.13 Directors and Officers of CDT..............................................................59
SECTION 6.14 Affiliate Legends..........................................................................62
SECTION 6.15 Notification of Certain Matters............................................................62
SECTION 6.16 Section 16 Matters.........................................................................63
SECTION 6.17 Rights Plans; State Takeover Laws..........................................................63
SECTION 6.18 Reservation of CDT Common Stock............................................................63
SECTION 6.19 Registration on Form S-3...................................................................63
SECTION 6.20 Further Assurances.........................................................................64
SECTION 6.21 Stockholder Litigation.....................................................................64
SECTION 6.22 Reverse Stock Split........................................................................64
ARTICLE VII CONDITIONS PRECEDENT.................................................................................65
SECTION 7.1 Conditions to Each Party's Obligation to Effect The Merger.................................65
SECTION 7.2 Conditions to Obligations of CDT and Merger Sub............................................66
SECTION 7.3 Conditions to Obligations of Belden........................................................66
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER...................................................................67
SECTION 8.1 Termination................................................................................67
SECTION 8.2 Effect of Termination......................................................................69
SECTION 8.3 Payments...................................................................................69
SECTION 8.4 Amendment..................................................................................71
SECTION 8.5 Extension; Waiver..........................................................................72
ARTICLE IX GENERAL PROVISIONS....................................................................................72
SECTION 9.1 Nonsurvival of Representations and Warranties..............................................72
SECTION 9.2 Notices....................................................................................72
SECTION 9.3 Definitions................................................................................73
SECTION 9.4 Interpretation.............................................................................77
SECTION 9.5 Counterparts...............................................................................77
SECTION 9.6 Entire Agreement; No Third-Party Beneficiaries.............................................77
SECTION 9.7 Governing Law..............................................................................77
SECTION 9.8 Assignment.................................................................................78
SECTION 9.9 Consent to Jurisdiction....................................................................78
SECTION 9.10 Headings, etc..............................................................................78
SECTION 9.11 Severability...............................................................................78
SECTION 9.12 Failure or Indulgence Not Waiver; Remedies Cumulative......................................78
SECTION 9.13 Waiver of Jury Trial.......................................................................78
SECTION 9.14 Specific Performance.......................................................................78
SCHEDULES
CDT Disclosure Schedule
Belden Disclosure Schedule
Schedule 1.6 - Belden Directors and Officers Following the Effective Time
Schedule 6.11(i) - Waivers under Belden Change of Control Agreements
Schedule 6.13(c) - CDT Officers
Schedule 7.1(b) - Foreign Anti-Trust Filings
EXHIBITS
EXHIBIT A FORM OF SURVIVING CORPORATION CERTIFICATE OF INCORPORATION
EXHIBIT B FORM OF SURVIVING CORPORATION BY-LAWS
EXHIBIT C FORM OF CDT CERTIFICATE OF AMENDMENT
EXHIBIT D FORM OF TAX REPRESENTATION LETTERS
INDEX OF DEFINED TERMS
TERM SECTION
---- -------
Acquisition 8.3(d)
Affiliate 9.3(a)
Agreement Preamble
Alternative Transaction 9.3(b)
Alternative Transaction Proposal 9.3(c)
Applicable Laws 3.7(a)
Approval 3.9(b)
Audit 3.10(j)
Belden Preamble
Belden Balance Sheet 4.4(c)
Belden Benefit Plans 4.9(a)
Belden By-Laws 4.1(b)
Belden Charter 4.1(b)
Belden Common Stock 2.1
Belden Designated Directors 6.13(a)
Belden Disclosure Schedule Article IV
Belden Dividend 5.1(b)
Belden ERISA Affiliate 4.9(e)
Belden Leased Real Property 4.14(b)
Belden Leases 4.14(b)
Belden Material Contract 4.18(a)
Belden Nominee 6.13(e)(v)
Belden Options 2.1(d)
Belden Organizational Documents 4.1(b)
Belden Owned Real Property 4.14(a)
Belden Permits 4.7(a)
Belden Preferred Stock 4.2(a)
Belden Purchase Plans 2.1(d)
Belden Real Property 4.14(c)
Belden Rights 4.2(a)
Belden Rights Agreement 4.2(a)
Belden SEC Documents 4.4(a)
Belden Stock Plans 4.2(a)
Belden Stockholder Approval 4.3(c)
Belden Stockholders' Meeting 6.1(b)
Belden Subsidiary Organizational Documents 4.1(b)
Belden Termination Fee 8.3(b)
Benefit Plans 3.9(a)
CDA 5.2(c)(i)
CDT Preamble
CDT Balance Sheet 3.4(d)
CDT Benefit Plans 3.9(a)
TERM SECTION
---- -------
CDT By-Laws 3.1(b)
CDT Certificate of Amendment 1.7
CDT Charter 3.1(b)
CDT Charter Amendment 1.7
CDT Charter Approval 3.3(c)
CDT Common Stock 2.1(a)
CDT Debentures 3.2(a)
CDT Designated Directors 6.13(a)
CDT Disclosure Schedule Article III
CDT ERISA Affiliate 3.9(e)
CDT Leased Real Property 3.14(b)
CDT Leases 3.14(b)
CDT Material Contract 3.18(a)
CDT Nominee 6.13(e)(iv)
CDT Offering Circular 3.4(a)
CDT Option 3.2(b)
CDT Organizational Documents 3.1(b)
CDT Owned Real Property 3.14(a)
CDT Permits 3.7(a)
CDT Preferred Stock 3.2(a)
CDT Purchase Plan 3.2(a)
CDT Real Property 3.14(c)
CDT Rights 3.2(a)
CDT Rights Agreement 3.2(a)
CDT SEC Documents 3.4(a)
CDT Share Issuance Recitals
CDT Share Issuance Approval 3.3(c)
CDT Stock Plans 3.2(a)
CDT Stockholders' Meeting 6.1(b)
CDT Subsidiary Organizational Documents 3.1(b)
CDT Termination Fee 8.3(a)
Certificate of Merger 1.3
Certificates 2.2(b)
Change of Recommendation 5.2(d)(i)
Closing 1.2
Closing Date 1.2
COBRA 3.9(i)
Code Recitals
Continuing Employees 6.11(f)
Contract 9.3(d)
DGCL Recitals
Effective Time 1.3
Environmental Laws 9.3(e)
Environmental Liabilities 9.3(f)
TERM SECTION
---- -------
ERISA 3.9(a)
Exchange Act 3.3(e)(B)(3)
Exchange Agent 2.2(a)
Exchange Fund 2.2(a)
Exchange Ratio 2.1(a)
Existing Benefits Commitments 5.1(b)(x)
Fair Market Value 9.3(g)
Form S-4 3.3(e)(B)(1)
Funded Retirement Plan 3.9(e)
GAAP 3.4(c)
Governmental Entity 3.3(e)
Guaranty 9.3(h)
Hazardous Materials 9.3(i)
HSR Act 3.3(e)(A)
Improvements 3.14(d)
Indebtedness 9.3(j)
Indenture 6.19
Indemnified Parties 6.5(a)
Intellectual Property 9.3(k)
Joint Proxy Statement 3.3(e)(B)(2)
Knowledge 9.3(l)
Liens 3.1(c)
Material Adverse Change 9.3(m)
Material Adverse Effect 9.3(m)
Merger Recitals
Merger Consideration 2.1(a)
Merger Sub Preamble
NYSE 2.1(e)
Outside Date 8.1(b)(i)
PBGC 3.9(e)
Person 9.3(n)
Restraints 7.1(d)
Reverse Stock Split 1.7
Rule 145 Affiliates 6.14
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act 3.4(b)
SEC 3.3(e)(B)
Secretary of State 1.3
Securities Act 3.3(e)
Subsidiary 9.3(o)
Superior Proposal 9.3(p)
Surviving Corporation Recitals
Tax Authority 3.10(j)
Tax Return 3.10(j)
Taxes 3.10(j)
Voting Debt 3.2(c)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of February 4, 2004, by and among CABLE DESIGN TECHNOLOGIES
CORPORATION, a
Delaware corporation ("CDT"), BC MERGER CORP., a
Delaware
corporation and a direct wholly owned subsidiary of CDT ("Merger Sub"), and
▇▇▇▇▇▇ INC., a
Delaware corporation ("Belden").
WITNESSETH:
WHEREAS, the respective Boards of Directors of CDT, Merger Sub and
Belden have deemed it advisable and in the best interests of their respective
corporations and stockholders that CDT and Belden engage in a business
combination in order to advance their respective long-term strategic business
interests; and
WHEREAS, in furtherance thereof, the Boards of Directors of each of
CDT, Merger Sub and Belden have approved this Agreement and the merger of Merger
Sub with and into Belden (the "Merger") so that Belden continues as the
surviving corporation in the Merger (sometimes referred to in such capacity as
the "Surviving Corporation"), upon the terms of and subject to the conditions
set forth in this Agreement and in accordance with the provisions of the
Delaware General Corporation Law (the "DGCL"); and
WHEREAS, the Board of Directors of Belden has determined to recommend
to its stockholders the approval and adoption of this Agreement and the Merger;
and
WHEREAS, the Board of Directors of CDT has determined to recommend to
its stockholders approval of the CDT Charter Amendment (as defined in Section
1.7) and the issuance of shares of CDT Common Stock (as defined in Section
2.1(a)) in connection with the Merger (the "CDT Share Issuance"); and
WHEREAS, CDT, as the sole stockholder of Merger Sub, has approved this
Agreement and the Merger; and
WHEREAS, for United States federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and this
Agreement is intended to be, and is hereby, adopted as a plan of reorganization
within the meaning of Section 368 of the Code; and
WHEREAS, the parties desire to make certain representations, warranties
and agreements in connection with the Merger and also to prescribe certain
conditions to the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 The Merger. Upon the terms of and subject to the conditions
set forth in this Agreement, and in accordance with the DGCL, at the Effective
Time (as defined in Section 1.3), Merger Sub shall be merged with and into
Belden, the separate corporate existence of Merger Sub shall cease and Belden
shall continue as the Surviving Corporation in the Merger and shall succeed to
and assume all the property, rights, privileges, powers and franchises of Merger
Sub in accordance with the DGCL.
SECTION 1.2 Closing. The closing of the Merger (the "Closing") shall
take place at 10:00 a.m., New York time, on a date to be specified by the
parties, which shall be no later than the third business day after satisfaction
or waiver of all of the conditions set forth in Article VII (other than delivery
of items to be delivered at the Closing and other than those conditions that by
their nature are to be satisfied at the Closing, it being understood that the
occurrence of the Closing shall remain subject to the delivery of such items and
the satisfaction or waiver of such conditions at the Closing) at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, unless another time, date or place is agreed to in writing by the
parties hereto. The date on which the Closing occurs is referred to herein as
the "Closing Date."
SECTION 1.3 Effective Time. Upon the terms of and subject to the
conditions of this Agreement, as soon as practicable on the Closing Date, the
parties shall cause the Merger to be consummated by filing a certificate of
merger executed in accordance with the relevant provisions of the DGCL (the
"Certificate of Merger") with the Secretary of State of the State of
Delaware
(the "Secretary of State") and shall make all other filings or recordings
required under the DGCL. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State, or at such
subsequent date or time as Belden and CDT shall agree and specify in the
Certificate of Merger. The date and time at which the Merger becomes effective
as set forth in the Certificate of Merger is referred to herein as the
"Effective Time."
SECTION 1.4 Effects of The Merger. At the Effective Time, the Merger
shall have the effects set forth in this Agreement and in the applicable
provisions of the DGCL.
SECTION 1.5 Organizational Documents of the Surviving Corporation. At
the Effective Time, the Belden Charter (as defined in Section 4.1(b)) shall be
amended and restated in its entirety to be identical to the certificate of
incorporation of Merger Sub in the form attached as Exhibit A hereto, and such
amended Belden Charter shall be the certificate of incorporation of the
Surviving Corporation until thereafter amended in accordance with the DGCL and
as provided in such certificate of incorporation; provided, however, that at the
Effective Time, Article I of the certificate of incorporation of the Surviving
Corporation shall be amended and restated in its entirety to read as follows:
"The name of the corporation is ▇▇▇▇▇▇ Inc." After the Effective Time, the
authorized capital stock of the Surviving Corporation shall consist of 100
shares of common stock, par value $.01 per share. At the Effective Time, the
Belden By-Laws (as defined in Section 4.1(b)) shall be amended and restated in
their entirety to be identical to the by-laws of Merger Sub, as in effect
immediately prior to the Effective Time,
2
in the form attached as Exhibit B hereto and such by-laws shall be the by-laws
of the Surviving Corporation until thereafter amended in accordance with the
DGCL and as provided in such by-laws.
SECTION 1.6 Directors and Officers of the Surviving Corporation. The
initial directors of the Surviving Corporation shall be the individuals
designated as such on Schedule 1.6 hereto until their respective successors are
duly elected or appointed and qualified. The initial officers of the Surviving
Corporation shall be the individuals designated as such on Schedule 1.6 hereto
until their respective successors are duly appointed.
SECTION 1.7 CDT Charter Amendment. Immediately prior to the Effective
Time, and upon the terms of and subject to the conditions set forth in this
Agreement and receipt of the CDT Charter Approval (as defined in Section
3.3(c)), pursuant to the applicable provisions of the DGCL, CDT shall cause the
CDT Charter (as defined in Section 3.1(b)) to be amended (the "CDT Charter
Amendment") to change the name of CDT to "▇▇▇▇▇▇ CDT Inc.," to increase the
number of authorized shares of capital stock and to provide for a reverse stock
split of the shares of CDT Common Stock (the "Reverse Stock Split") by filing a
Certificate of Amendment substantially in the form of Exhibit C hereto (the "CDT
Certificate of Amendment") with the Secretary of State in accordance with
applicable provisions of the DGCL.
SECTION 1.8 Alternative Structure. CDT and Belden may mutually agree to
revise the structure of the Merger provided for herein at any time prior to
receipt of either the Belden Stockholder Approval (as defined in Section 4.3(c))
or CDT Share Issuance Approval (as defined in Section 3.3(c)), or at any time
thereafter if, with appropriate disclosure, any required further approval of the
revised structure is obtained from the stockholders of CDT and Belden, as
applicable; provided, however, that under any such revised structure the Merger
would qualify as a reorganization within the meaning of Section 368(a) of the
Code or as a transfer qualifying under Section 351 of the Code. CDT and Belden
agree to consider in good faith the request of the other party to revise the
structure of the Merger from that set forth herein.
ARTICLE II
EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES
SECTION 2.1 Effect on Capital Stock. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time, by virtue of the Merger and
without any action on the part of CDT, Merger Sub, Belden or the holders of any
shares of common stock, par value $0.01 per share, of Belden (together with any
associated Belden Rights (as defined in Section 4.2(a)), "Belden Common Stock"):
(a) Conversion of Belden Common Stock. Each share of Belden Common
Stock issued and outstanding immediately prior to the Effective Time, other than
any shares of Belden Common Stock to be canceled pursuant to Section 2.1(c)
shall automatically be converted into the right to receive (i) 2.00 fully paid
and nonassessable shares of common stock, par value $0.01 per share, of CDT
("CDT Common Stock") if the Reverse Stock Split has not been effected prior to
the Effective Time, or (ii) 1.00 fully paid and nonassessable share of CDT
Common Stock if the Reverse Stock Split has been effected prior to the Effective
Time (in either case, the
3
"Exchange Ratio") (the number of shares of CDT Common Stock set forth in clause
(i) or (ii), as applicable, together with the associated CDT Rights (as defined
in Section 3.2(a)), the "Merger Consideration") upon surrender of the
Certificate (as defined in Section 2.2(b)), which immediately prior to the
Effective Time represented such share of Belden Common Stock in the manner
provided in Section 2.2(b) (or, in the case of a lost, stolen or destroyed
Certificate, Section 2.2(h)). As a result of the Merger, at the Effective Time,
each holder of a Certificate shall cease to have any rights with respect
thereto, except the right to receive the Merger Consideration payable in respect
of the shares of Belden Common Stock represented by such Certificate immediately
prior to the Effective Time, any cash in lieu of fractional shares payable
pursuant to Section 2.1(e) and any dividends or other distributions payable
pursuant to Section 2.2(c), all to be issued or paid, without interest, in
consideration therefor upon the surrender of such Certificate in accordance with
Section 2.2(b) (or, in the case of a lost, stolen or destroyed Certificate,
Section 2.2(h)).
(b) Capital Stock of Merger Sub. Each issued and outstanding share of
common stock, par value $0.01 per share, of Merger Sub shall be converted into
one fully paid and nonassessable share of common stock, par value $0.01 per
share, of the Surviving Corporation.
(c) Cancellation of Treasury Shares. Each share of Belden Common Stock
held as treasury stock by Belden, if any, shall automatically be extinguished
without any conversion, and no consideration shall be delivered in respect
thereof.
(d) Belden Options and Employee Stock Purchase Plans. At the Effective
Time, (i) all issued and outstanding options to purchase Belden Common Stock
under any Belden Stock Plan (as defined in Section 4.2(a)) (each, a "Belden
Option") shall be assumed by CDT in accordance with Section 6.11(a), (ii) all
shares of Belden Common Stock issued pursuant to restricted stock grants under
any Belden Stock Plan and with respect to which restrictions have not lapsed,
shall be treated as set forth in Section 6.11(c), and (iii) all rights
outstanding under ▇▇▇▇▇▇'▇ Employee Stock Purchase Plan and U.K. Share Ownership
Plan, in each case as amended to date (collectively, the "Belden Purchase
Plans"), shall be treated as set forth in Section 6.11(c).
(e) Fractional Shares. No fraction of a share of CDT Common Stock will
be issued by virtue of the Merger, but in lieu thereof each holder of shares of
Belden Common Stock who would otherwise be entitled to receive a fraction of a
share of CDT Common Stock (after aggregating all fractional shares of CDT Common
Stock that otherwise would be received by such holder) shall, upon surrender of
such holder's Certificate(s), receive from CDT an amount of cash (rounded to the
nearest whole cent), without interest, equal to the product of: (i) such
fraction, multiplied by (ii) the average closing price of one share of CDT
Common Stock for the ten (10) most recent trading days that CDT Common Stock has
traded ending on the trading day one day prior to the Effective Time, as
reported on the New York Stock Exchange ("NYSE").
(f) Adjustments to Exchange Ratio. The Exchange Ratio shall be adjusted
to reflect fully the appropriate effect of any stock split, reverse stock split
(without duplication of the effects on the Exchange Ratio contemplated by
Section 2.2(a) as a result of the Reverse Stock Split), stock dividend
(including any dividend or distribution of securities convertible into CDT
Common Stock or Belden Common Stock), reorganization, recapitalization,
reclassification or
4
other like change with respect to CDT Common Stock or Belden Common Stock having
a record date on or after the date hereof and prior to the Effective Time.
Notwithstanding the foregoing, no adjustment will be made to the Exchange Ratio
in respect of any Belden Dividends (as defined in Section 5.1(b)).
SECTION 2.2 Exchange of Shares and Certificates.
(a) Exchange Agent. At or prior to the Effective Time, CDT shall engage
Equiserve Trust Company, N.A. (or such other institution reasonably satisfactory
to Belden) to act as exchange agent in connection with the Merger (the "Exchange
Agent"), pursuant to an agreement reasonably satisfactory to Belden. Immediately
prior to the Effective Time, CDT shall deposit with the Exchange Agent, in trust
for the benefit of the holders of shares of Belden Common Stock, certificates
representing the shares of CDT Common Stock issuable pursuant to Section 2.1(a).
In addition, CDT shall make available by depositing with the Exchange Agent, as
necessary from time to time after the Effective Time as needed, cash in an
amount sufficient to make the payments in lieu of fractional shares pursuant to
Section 2.1(e) and any dividends or distributions to which holders of shares of
Belden Common Stock may be entitled pursuant to Section 2.2(c). All cash and CDT
Common Stock deposited with the Exchange Agent shall hereinafter be referred to
as the "Exchange Fund."
(b) Exchange Procedures. Promptly after the Effective Time, CDT shall
cause the Exchange Agent to mail to each holder of record of a certificate or
certificates that immediately prior to the Effective Time represented
outstanding shares of Belden Common Stock and that at the Effective Time were
converted into the right to receive the Merger Consideration pursuant to Section
2.1 (the "Certificates"), (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass only upon delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as CDT and Belden may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for certificates representing whole shares of CDT
Common Stock, cash in lieu of any fractional shares pursuant to Section 2.1(e)
and any dividends or other distributions payable pursuant to Section 2.2(c).
Upon surrender of Certificates for cancellation to the Exchange Agent, together
with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such Certificates
shall be entitled to receive in exchange therefor a certificate representing
that number of whole shares of CDT Common Stock (after taking into account all
Certificates surrendered by such holder) to which such holder is entitled
pursuant to Section 2.1 (which shall be uncertificated book entry form unless a
physical certificate is requested), payment in lieu of fractional shares which
such holder is entitled to receive pursuant to Section 2.1(e) and any dividends
or distributions payable pursuant to Section 2.2(c), and the Certificates so
surrendered shall forthwith be canceled. In the event of a transfer of ownership
of Belden Common Stock which is not registered in the transfer records of
Belden, a certificate representing the proper number of shares of CDT Common
Stock may be issued to a Person (as defined in Section 9.3(n)) 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 issuance shall pay any transfer or other
taxes required by reason of the issuance of shares of CDT Common Stock to a
Person other than the registered holder of such Certificate or establish to the
reasonable
5
satisfaction of CDT that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.2(b), each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive the Merger Consideration (and any amounts to be paid pursuant to Section
2.1(e) or Section 2.2(c)) upon such surrender. No interest shall be paid or
shall accrue on any amount payable pursuant to Section 2.1(e) or Section 2.2(c).
(c) Distributions with Respect to Unexchanged Shares. No dividends or
other distributions with respect to CDT Common Stock with a record date after
the Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the shares of CDT Common Stock represented thereby, and no cash
payment in lieu of fractional shares shall be paid to any such holder pursuant
to Section 2.1(e), until such Certificate has been surrendered in accordance
with this Article II. Subject to Applicable Law (as defined in Section 3.7(a)),
following surrender of any such Certificate, there shall be paid to the
recordholder thereof, without interest, (i) promptly after such surrender, the
number of whole shares of CDT Common Stock issuable in exchange therefor
pursuant to this Article II, together with any cash payable in lieu of a
fractional share of CDT Common Stock to which such holder is entitled pursuant
to Section 2.1(e) and the amount of dividends or other distributions with a
record date after the Effective Time theretofore paid with respect to such whole
shares of CDT Common Stock, and (ii) at the appropriate payment date, the amount
of dividends or other distributions with a record date after the Effective Time
and a payment date subsequent to such surrender payable with respect to such
whole shares of CDT Common Stock.
(d) No Further Ownership Rights in Belden Common Stock. All shares of
CDT Common Stock issued upon the surrender for exchange of Certificates in
accordance with the terms of this Article II and any cash paid pursuant to
Section 2.1(e) or Section 2.2(c) shall be deemed to have been issued (and paid)
in full satisfaction of all rights pertaining to the shares of Belden Common
Stock previously represented by such Certificates. At the Effective Time, the
stock transfer books of Belden 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 Belden Common Stock which were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation or the Exchange Agent
for any reason, they shall be canceled and exchanged as provided in this Article
II.
(e) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the holders of Certificates six (6) months after
the Effective Time shall be delivered to CDT, upon demand, and any holders of
Certificates who have not theretofore complied with this Article II shall
thereafter look only to CDT for payment of their claim for the Merger
Consideration, any cash in lieu of fractional shares of CDT Common Stock
pursuant to Section 2.1(e) and any dividends or distributions pursuant to
Section 2.2(c).
(f) No Liability. None of CDT, Merger Sub, Belden or the Exchange Agent
shall be liable to any Person in respect of any shares of CDT Common Stock (or
dividends or distributions with respect thereto) or cash from the Exchange Fund
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 seven years after the Effective Time, or immediately prior to such earlier
date on which any shares of CDT Common Stock, any cash in lieu of fractional
shares of CDT Common Stock or any dividends or distributions with respect to CDT
Common
6
Stock issuable in respect of such Certificate would otherwise escheat to or
become the property of any Governmental Entity (as defined in Section 3.3(e)),
any such shares, cash, dividends or distributions in respect of such Certificate
shall, to the extent permitted by Applicable Law, become the property of the
Surviving Corporation, free and clear of all claims or interest of any Person
previously entitled thereto.
(g) Withholding Rights. CDT or the Exchange Agent shall be entitled to
deduct and withhold from any consideration payable pursuant to this Agreement to
any Person who was a holder of Belden Common Stock, options or other securities
or rights immediately prior to the Effective Time such amounts as CDT or the
Exchange Agent may be required to deduct and withhold with respect to the making
of such payment under the Code, or any provision of federal, state, local or
foreign tax law. To the extent that amounts are so withheld by CDT or the
Exchange Agent, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the Person to whom such consideration would
otherwise have been paid.
(h) Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, such shares of CDT
Common Stock as may be required pursuant to Section 2.1(a), cash for fractional
shares pursuant to Section 2.1(e) and any dividends or distributions payable
pursuant to Section 2.2(c); provided, however, that CDT may, in its reasonable
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed Certificates to deliver an agreement of
indemnification in form reasonably satisfactory to CDT, or a bond in such sum as
CDT may reasonably direct as indemnity, against any claim that may be made
against CDT or the Exchange Agent in respect of the Certificates alleged to have
been lost, stolen or destroyed.
(i) Investment of Exchange Fund. The Exchange Agent shall invest any
cash included in the Exchange Fund as directed by CDT on a daily basis provided
that no such investment or loss thereon shall affect the amounts payable to
former stockholders of Belden after the Effective Time pursuant to this Article
II. Any interest and other income resulting from such investment shall become a
part of the Exchange Fund, and any amounts in excess of the amounts payable
pursuant to this Article II shall promptly be paid to CDT.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CDT AND MERGER SUB
Except as set forth in the disclosure schedule dated as of the date of
this Agreement and delivered by CDT and Merger Sub to Belden prior to the
execution and delivery by CDT and Merger Sub of this Agreement (the "CDT
Disclosure Schedule"), each of CDT and Merger Sub represents and warrants to
Belden as set forth below. Each exception set forth in the CDT Disclosure
Schedule, and any other information included in the CDT Disclosure Schedule, is
identified by reference to, or has been grouped under a heading referring to, a
specific individual section or subsection of this Agreement and shall be deemed
to be disclosed solely for purposes of such section or subsection, except to the
extent that the relevance of a disclosure in one section or subsection of the
7
CDT Disclosure Schedule to another section or subsection of the CDT Disclosure
Schedule is reasonably apparent on its face. Inclusion of any information in the
CDT Disclosure Schedule shall not be construed as an admission that such
information is material to CDT or any of its Subsidiaries.
SECTION 3.1 Organization, Standing and Corporate Power; Charter
Documents; Subsidiaries.
(a) Organization, Standing and Corporate Power. CDT is a corporation
duly organized, validly existing and in good standing under the laws of the
State of
Delaware, and has the requisite corporate power and authority to carry
on its business as currently conducted. Each Subsidiary (as defined in Section
9.3(o)) of CDT is a corporation or other legal entity duly organized, validly
existing and in good standing (with respect to jurisdictions that recognize such
concept) under the laws of the jurisdiction in which it is incorporated or
otherwise organized, and has the requisite corporate (or similar) power and
authority to carry on its business as currently conducted, except where the
failure to be so organized, existing or in good standing would not reasonably be
likely to have a Material Adverse Effect (as defined in Section 9.3(m)) on CDT.
Each of CDT and its Subsidiaries is duly qualified or licensed to do business
and is in good standing (with respect to jurisdictions which recognize such
concept) in each jurisdiction in which the nature of its business or the
ownership, leasing or operation of its properties makes such qualification or
licensing necessary, except for those jurisdictions where the failure to be so
qualified or licensed or to be in good standing would not reasonably be likely
to have a Material Adverse Effect on CDT.
(b) Charter Documents. CDT and Merger Sub have delivered or made
available to Belden prior to the execution of this Agreement complete and
correct copies of (A) the Amended and Restated Certificate of Incorporation of
CDT (including any certificates of designation), currently in effect (the "CDT
Charter"), and the by-laws of CDT, as amended and currently in effect (the "CDT
By-Laws," and, together with the CDT Charter, the "CDT Organizational
Documents"), (B) the certificate of incorporation and by-laws of Merger Sub in
effect on the date of this Agreement, and (C) the certificate of incorporation
and by-laws or like organizational documents, as amended and currently in effect
(collectively, the "CDT Subsidiary Organizational Documents") of each Subsidiary
of CDT, and each such instrument is in full force and effect. CDT is not in
violation of the CDT Organizational Documents and no Subsidiary of CDT is in
violation of its CDT Subsidiary Organizational Documents, except for violations
that are not material to CDT and its Subsidiaries taken as a whole.
(c) Subsidiaries. Section 3.1(c) of the CDT Disclosure Schedule lists
each Subsidiary of CDT and sets forth each such Subsidiary's capital structure.
Except as set forth in Section 3.1(c) of the CDT Disclosure Schedule, all the
outstanding shares of capital stock of, or other equity interests in, each
Subsidiary of CDT have been validly issued and are fully paid and nonassessable
and are owned directly or indirectly by CDT, free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "Liens") and free of any other restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests).
8
SECTION 3.2 Capital Structure.
(a) The authorized capital stock of CDT consists of 100,000,000 shares
of CDT Common Stock, and 1,000,000 shares of preferred stock, par value $0.01
per share ("CDT Preferred Stock"). At the close of business on December 31,
2003, (A) 41,984,614 shares of CDT Common Stock were issued and outstanding; (B)
6,791,315 shares of CDT Common Stock were held by CDT in its treasury; (C) no
shares of CDT Preferred Stock were issued and outstanding; (D) 227,117 shares of
CDT Common Stock were reserved for issuance pursuant to CDT's 1998 Employee
Stock Purchase Plan, as amended to date (the "CDT Purchase Plan"); (E) an
aggregate of 5,338,615 shares of CDT Common Stock were reserved for issuance
pursuant to CDT's Long Term Performance Incentive Plan, Supplemental Long-Term
Performance Incentive Plan, Management Stock Award Plan; 1999 Long-Term
Performance Incentive Plan, Non-Employee Director Stock Plan, and 2001 Long-Term
Performance Incentive Plan (such plans, as amended to date, are collectively
referred to herein as the "CDT Stock Plans"), complete and correct copies of
which, in each case as amended, have been filed as exhibits to the CDT SEC
Documents (as defined in Section 3.4(a)) prior to the date of this Agreement or
delivered to Belden; (F) 12,175,549 shares of CDT Common Stock were reserved for
issuance upon conversion of CDT's 4.00% Convertible Subordinated Debentures due
July 15, 2003 (the "CDT Debentures"); (G) 100,000 shares of CDT Preferred Stock
were designated as Junior Participating Preferred Stock, Series A, par value
$0.01 per share, and were reserved for issuance upon the exercise of preferred
share purchase rights (the "CDT Rights") issued pursuant to the CDT Rights
Agreement dated December 11, 1996 between CDT and State Street Bank and Trust
Company (as successor in interest to First National Bank of Boston), as rights
agent (the "CDT Rights Agreement"); and (H) one CDT Right was outstanding for
each outstanding share of CDT Common Stock. All of the outstanding shares of
capital stock of, or other equity interests in, CDT have been validly issued and
are fully paid and nonassessable. Except as set forth in this Section 3.2 or in
Section 3.2(a) of the CDT Disclosure Schedule, there are no other equity
securities of CDT or securities exchangeable or convertible into or exercisable
for such equity securities issued or outstanding.
(b) As of the close of business on December 31, 2003, 3,990,186 shares
of CDT Common Stock were subject to issuance pursuant to outstanding options to
acquire shares of CDT Common Stock ("CDT Options") under CDT Stock Plans and
227,117 shares were subject to issuance pursuant to the CDT Purchase Plan. All
shares of CDT Common Stock subject to issuance under the CDT Stock Plans and the
CDT Purchase Plan, upon issuance upon the terms and subject to the conditions
set forth in the instruments pursuant to which they are issuable, will be duly
authorized, validly issued, fully paid and nonassessable. Except as contemplated
by this Agreement or as set forth in Section 3.2(b) of the CDT Disclosure
Schedule, there are no commitments or agreements of any character to which CDT
is bound obligating CDT to accelerate the vesting of any CDT Option as a result
of the Merger. There are no outstanding or authorized stock appreciation,
phantom stock, profit participation or other similar rights with respect to CDT.
(c) No bonds, debentures, notes or other evidences of indebtedness
having the right to vote on any matters on which stockholders of CDT may vote
("Voting Debt") are issued or outstanding.
9
(d) Except as otherwise set forth in this Section 3.2 or in Section
3.2(d) of the CDT Disclosure Schedule, there are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or undertakings
of any kind to which CDT or any of its Subsidiaries is a party or by which any
of them is bound obligating CDT or any of its Subsidiaries to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock, Voting Debt or other voting securities of CDT or any of its Subsidiaries,
or obligating CDT or any of its Subsidiaries to issue, grant, extend or enter
into any such security, option, warrant, call, right, commitment, agreement,
arrangement or undertaking. All outstanding shares of CDT Common Stock, all
outstanding CDT Options, and all outstanding shares of capital stock of each
Subsidiary of CDT have been issued and granted (as applicable) in compliance in
all material respects with (A) all applicable securities laws and all other
Applicable Laws and (B) all requirements set forth in applicable material
Contracts (as defined in Section 9.3(d)).
(e) Since December 31, 2003 and through the date hereof, except (A) as
set forth in Section 3.2(e) of the CDT Disclosure Schedule, or (B) issuances of
CDT Common Stock pursuant to (1) the exercise of CDT Options outstanding as of
December 31, 2003, (2) the CDT Purchase Plan authorized as of December 31, 2003,
or (3) the conversion of the CDT Debentures, there has been no change in (x) the
outstanding capital stock of CDT, (y) the number of CDT Options outstanding, or
(z) the number of other options, warrants or other rights to purchase CDT
capital stock.
(f) Except as set forth in Section 3.2(f) of the CDT Disclosure
Schedule, neither CDT nor any Subsidiary of CDT is a party to any agreement,
arrangement or understanding restricting the purchase or transfer of, relating
to the voting of, requiring registration of, or granting any preemptive or
antidilutive rights with respect to, any capital stock of CDT or any of its
Subsidiaries or any securities of the type referred to in Section 3.2(d) hereof.
(g) Other than its Subsidiaries, CDT does not directly or indirectly
beneficially own any securities or other beneficial ownership interests in any
other entity except for highly liquid investments with an original maturity of
three months or less at the date of purchase, made in the ordinary course of
business consistent with past practice.
(h) The authorized capital stock of Merger Sub consists of 100 shares
of common stock, par value $.01 per share, all of which shares are issued and
outstanding. CDT is the legal and beneficial owner of all of the issued and
outstanding shares of Merger Sub. Merger Sub was formed at the direction of CDT
on February 4, 2004, solely for the purposes of effecting the Merger and the
other transactions contemplated hereby. Except as required by or provided for in
this Agreement, Merger Sub (A) does not hold, nor has it held, any assets, (B)
does not have, nor has it incurred, any liabilities and (C) has not carried on
any business activities other than in connection with the Merger and the
transactions contemplated hereby. All of the outstanding shares of capital stock
of Merger Sub have been duly authorized and validly issued, and are fully paid
and nonassessable and not subject to any preemptive rights.
10
SECTION 3.3 Authority; Board Approval; Voting Requirements; No
Conflict; Required Filings and Consents.
(a) Authority. Subject to obtaining the CDT Share Issuance Approval and
the CDT Charter Approval, each of CDT and Merger Sub has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by CDT and Merger Sub, and the consummation by CDT and Merger Sub of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of CDT and Merger Sub, and no other corporate
proceedings on the part of CDT or Merger Sub and no stockholder votes are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby, other than with respect to approval of the CDT Share
Issuance, the CDT Share Issuance Approval, and with respect to approval of the
CDT Charter Amendment, the CDT Charter Approval. This Agreement has been duly
executed and delivered by CDT and Merger Sub. Assuming the due authorization,
execution and delivery of this Agreement by Belden, this Agreement constitutes
the legal, valid and binding obligation of each of CDT and Merger Sub,
enforceable against CDT and Merger Sub in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting the rights and remedies of creditors generally and to
general principles of equity (regardless of whether considered in a proceeding
in equity or at law).
(b) Board Approval. Subject to Section 5.2(d), the Board of Directors
of CDT has (A) determined that this Agreement, the CDT Charter Amendment, the
Merger and the CDT Share Issuance are advisable and fair to and in the best
interest of CDT and its stockholders, (B) approved and adopted this Agreement,
the CDT Charter Amendment, the Merger, the CDT Share Issuance and the other
transactions contemplated hereby, which adoption has not been rescinded or
modified, (C) resolved to recommend the CDT Charter Amendment and the CDT Share
Issuance to its stockholders for approval and (D) directed that the CDT Charter
Amendment and the CDT Share Issuance be submitted to its stockholders for
consideration in accordance with this Agreement.
(c) Voting Requirements. The affirmative vote in favor of approval of
(i) the CDT Share Issuance by a majority of the votes cast thereon by holders of
shares of CDT Common Stock present in person or by proxy (the "CDT Share
Issuance Approval") and (ii) the CDT Charter Amendment by the holders of a
majority of the outstanding shares of CDT Common Stock entitled to vote thereon
(the "CDT Charter Approval"), in each case at a duly convened and held CDT
Stockholders' Meeting (as defined in Section 6.1(b)) are the only votes of the
holders of any class or series of CDT's capital stock necessary to approve the
CDT Share Issuance, CDT Charter Amendment, this Agreement and the Merger.
(d) No Conflict. Except as set forth in Section 3.3(d) of the CDT
Disclosure Schedule, the execution and delivery of this Agreement by CDT and
Merger Sub do not, and the consummation by CDT and Merger Sub of the
transactions contemplated hereby and compliance by CDT and Merger Sub with the
provisions of this Agreement will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time, or both) under, require
any consent, waiver or approval under, give rise to any right of termination or
other right, or the cancellation or acceleration of any right or obligation or
loss of a benefit under, or result in the
11
creation of any Lien upon any of the properties or assets of CDT or any of its
Subsidiaries or any restriction on the conduct of CDT's business or operations
under, (A) the CDT Organizational Documents or the CDT Subsidiary Organizational
Documents, (B) any Contract, permit, concession, franchise, license or
authorization applicable to CDT or any of its Subsidiaries or their respective
properties or assets, (C) any material judgment, order or decree, or (D) subject
to the governmental filings and other matters referred to in Section 3.3(e), any
statute, law, ordinance, rule or regulation applicable to CDT or any of its
Subsidiaries or their respective properties or assets, other than, in the case
of clause (B), any such conflicts, violations, defaults, rights, losses,
restrictions or Liens, or failure to obtain consents, waivers or approvals,
which would not reasonably be likely to have a Material Adverse Effect on CDT.
(e) Required Filings or Consents. 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 (a
"Governmental Entity") is required to be made or obtained by or with respect to
CDT or any of its Subsidiaries in connection with the execution and delivery of
this Agreement by CDT or Merger Sub, the approval of the CDT Charter Amendment
or the CDT Share Issuance or the consummation by CDT or Merger Sub of the
transactions contemplated hereby, except for:
(A) the filing of a pre-merger notification and report form by
CDT and Merger Sub under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended (the "HSR Act") and any applicable filings or
notifications under the antitrust, competition or similar laws of any
foreign jurisdiction;
(B) the filing with the Securities and Exchange Commission
(the "SEC") of:
(1) the registration statement on Form S-4 to be
filed with the SEC by CDT in connection with the issuance of
CDT Common Stock in the Merger (including any amendments or
supplements, the "Form S-4")
(2) a proxy statement relating to the CDT
Stockholders' Meeting (such proxy statement, together with the
proxy statement relating to the ▇▇▇▇▇▇ Stockholders' Meeting
(as defined in Section 6.1(b)), in each case as amended or
supplemented from time to time, the "Joint Proxy Statement");
and
(3) such reports under Section 13(a), 13(d), 15(d) or
16(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and communications under Rule 425 under the
Securities Act of 1933, as amended (the "Securities Act"), in
each case as may be required in connection with this Agreement
and the transactions contemplated hereby;
12
(C) the filing of the Certificate of Merger with the Secretary
of State and appropriate documents with the relevant authorities of
other states in which CDT or Merger Sub is qualified to do business;
(D) filings required by state securities laws or other "blue
sky" laws;
(E) the filing of the CDT Charter Amendment with the Secretary
of State; and
(F) other consents, approvals, orders or authorizations, the
failure of which to be made or obtained, would not reasonably be likely
to have a Material Adverse Effect on CDT.
SECTION 3.4 SEC Documents; Financial Statements. Except as set forth in
Section 3.4 of the CDT Disclosure Schedule:
(a) CDT has filed with the SEC all registration statements,
prospectuses, reports, schedules, forms, statements, certifications and other
documents (including exhibits and all other information incorporated by
reference therein) required to be so filed by CDT since January 1, 2000
(excluding the Form S-4 and the Joint Proxy Statement, the "CDT SEC Documents").
As of their respective dates, the CDT SEC Documents and the offering circular,
dated July 1, 2003, pursuant to which the CDT Debentures were offered (the "CDT
Offering Circular") complied in all material respects with the applicable
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC promulgated thereunder applicable to such
CDT SEC Documents or CDT Offering Circular, and none of the CDT SEC Documents,
when filed, nor the CDT Offering Circular, as of July 1, 2003 and at the date of
issuance of the CDT Debentures, contained 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 corrected by a
subsequently filed CDT SEC Document filed with the SEC prior to the date hereof.
(b) The chief executive officer and chief financial officer of CDT have
made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and any related rules and regulations promulgated by the
SEC, and the statements contained in all such certifications were complete and
correct in all material respects as of the date made. Neither CDT nor any of its
officers has received notice from the SEC or the NYSE questioning or challenging
the accuracy, completeness, content, form or manner of filing or submission of
such certifications. CDT is, and through the Closing Date will be, otherwise in
material compliance with all applicable effective provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable listing and corporate governance rules of
the New York Stock Exchange.
(c) The financial statements of CDT included in (i) the CDT SEC
Documents, including each CDT SEC Document filed after the date hereof until the
Effective Time, and (ii) the CDT Offering Circular, complied, as of their
respective dates of filing with the SEC or, in the case of the CDT Offering
Circular, as of July 1, 2003 and at the date of issuance of the CDT Debentures,
in all material respects with accounting requirements and the published rules
and regulations of the SEC applicable with respect thereto, have been prepared
in accordance with
13
United States generally accepted accounting principles ("GAAP") (except, in the
case of unaudited statements, as permitted by Form 10-Q or 8-K of the SEC)
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated financial
position of CDT 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 which are not material).
(d) Except as reflected or reserved against in the balance sheet of CDT
dated October 31, 2003 included in the Form 10-Q filed by CDT with the SEC on
December 15, 2003 (including the notes thereto, the "CDT Balance Sheet"),
neither CDT nor any of its Subsidiaries has any liabilities (absolute, accrued,
contingent or otherwise) which are required by GAAP to be set forth on a
consolidated balance sheet of CDT and its consolidated Subsidiaries or in the
notes thereto, other than (A) liabilities and obligations incurred since October
31, 2003 in the ordinary course of business which would not reasonably be likely
to have a Material Adverse Effect on CDT and (B) liabilities and obligations
incurred in connection with this Agreement or the transactions contemplated
hereby. The inventory reflected on the CDT Balance Sheet reflects the value of
that inventory at the lower of (x) the cost of that inventory or (y) the fair
market value of that inventory, and reflects write-offs and write-downs for
damaged or obsolete items, or items of below standard quality, in accordance
with the historical inventory policies and practices of CDT and GAAP.
(e) Neither CDT nor any of its Subsidiaries is a party to, or has any
commitment to become a party to, any contract, agreement, arrangement or
understanding (including without limitation any contract or arrangement relating
to any transaction or relationship between or among CDT and any of its
Subsidiaries, on the one hand, and any unconsolidated Affiliate (as defined in
Section 9.3(a)), including without limitation any structured finance, special
purpose or limited purpose entity or Person, on the other hand), where the
result, purpose or intended effect of such contract or arrangement is to avoid
disclosure of any material transaction involving, or material liabilities of,
CDT or any of its Subsidiaries in CDT's or its Subsidiaries' published financial
statements.
SECTION 3.5 Information Supplied. None of the information supplied or
to be supplied by or on behalf of CDT or Merger Sub for inclusion or
incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is
filed with the SEC, at any time it is amended or supplemented or at the time it
becomes effective under the Securities Act, 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 or (ii) the Joint Proxy
Statement will, at the date it is first mailed to CDT's stockholders or at the
time of the CDT 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. The Joint Proxy
Statement and the Form S-4 will comply as to form in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations thereunder, except that no representation or warranty is made by CDT
with respect to information or statements with respect to ▇▇▇▇▇▇ or its
Subsidiaries made or
14
incorporated by reference therein supplied by or on behalf of Belden for
inclusion or incorporation by reference in the Joint Proxy Statement or the Form
S-4.
SECTION 3.6 Absence of Certain Changes or Events.
(a) Since July 31, 2003 through the date hereof, except as and to the
extent (i) disclosed in CDT's annual report for the fiscal year ended July 31,
2003 filed with the SEC on Form 10-K, (ii) set forth in Section 3.6(a) of the
CDT Disclosure Schedule, or (iii) expressly contemplated by this Agreement:
(A) CDT and its Subsidiaries have conducted their business
only in the ordinary course consistent with past practice;
(B) there has not been any split, combination or
reclassification of any of CDT's capital stock or any declaration,
setting aside or payment of any dividend on, or other distribution
(whether in cash, stock or property) in respect of, in lieu of, or in
substitution for, shares of CDT's capital stock;
(C) except as required by a change in GAAP, there has not been
any material change in accounting methods, principles or practices by
CDT; and
(D) there has not been any action taken by CDT or any of its
Subsidiaries that, if taken during the period from the date of this
Agreement through the Effective Time, would constitute a breach of
Section 5.1(b), other than actions in connection with entering into
this Agreement.
(b) Since July 31, 2003 through the date hereof, there have not been
any changes, circumstances or events that have had, or would reasonably be
likely to have, a Material Adverse Effect on CDT.
SECTION 3.7 Compliance with Applicable Laws; Permits; Litigation.
(a) CDT, its Subsidiaries and employees hold all permits, licenses,
easements, variances, exemptions, orders, consents, registrations and approvals
of all Governmental Entities which are required for the operation of the
businesses of CDT and its Subsidiaries in the manner described in the CDT SEC
Documents filed prior to the date hereof and as they are being conducted as of
the date hereof (the "CDT Permits"), and all CDT Permits are in full force and
effect, except where the failure to have, or the suspension or cancellation of,
or the failure to be valid or in full force and effect of, any such CDT Permit
would not reasonably be likely to have a Material Adverse Effect on CDT. CDT and
its Subsidiaries are in compliance with the terms of the CDT Permits and all
applicable laws, statutes, orders, rules, regulations, policies or guidelines
promulgated, or judgments, decisions or orders entered by any Governmental
Entity (all such laws, statutes, orders, rules, regulations, policies,
guidelines, judgments, decisions and orders, collectively, "Applicable Laws")
relating to CDT and its Subsidiaries or their respective business or properties,
except where the failure to be in compliance with the terms of the CDT Permits
or such Applicable Laws would not reasonably be likely to have a Material
Adverse Effect on CDT.
15
(b) As of the date hereof, except as and to the extent disclosed in the
CDT SEC Documents filed prior to the date of this Agreement, no action, demand,
suit, proceeding, requirement or investigation by any Governmental Entity and no
suit, action, mediation, arbitration or proceeding by any Person, against or
affecting CDT or any of its Subsidiaries or any of their respective properties,
including Intellectual Property (as defined in Section 9.3(k)), is pending or,
to the Knowledge (as defined in Section 9.3(l)) of CDT, threatened which,
individually or in the aggregate, has been, or is reasonably likely to be,
material to CDT.
(c) As of the date hereof, neither CDT nor any of its Subsidiaries is
subject to any material outstanding order, injunction or decree.
SECTION 3.8 Labor and Other Employment Matters.
(a) Except (i) as set forth in Section 3.8(a) of the CDT Disclosure
Schedule or (ii) as would not reasonably be likely to have a Material Adverse
Effect on CDT, (A) no work stoppage, slowdown, lockout, labor strike, material
arbitrations or other labor disputes against CDT or any of its Subsidiaries are
pending or, to the Knowledge of CDT, threatened, (B) no unfair labor practice
charges, grievances or complaints are pending or, to the Knowledge of CDT,
threatened against CDT or any of its Subsidiaries, (C) neither CDT nor any of
its Subsidiaries is delinquent in payments to any of its employees for any
wages, salaries, commissions, bonuses or other direct compensation for any
services performed for it or amounts required to be reimbursed to such
employees, (D) CDT and each of its Subsidiaries are in compliance with all
Applicable Laws respecting labor and employment, including, but not limited to,
terms and conditions of employment, workers' compensation, occupational safety
and health requirements, plant closings, wages and hours, employment
discrimination, disability rights or benefits, equal opportunity, affirmative
action, labor relations, employee leave issues and unemployment insurance and
related matters, (E) there are no complaints, charges or claims against CDT or
any of its Subsidiaries pending with or, to the Knowledge of CDT, threatened by
any Governmental Entity or arbitrator based on, arising out of, in connection
with, or otherwise relating to the employment of any employees by CDT and or any
of its Subsidiaries, other than those occurring in the ordinary course of
business, such as claims for workers' compensation or unemployment benefits, (F)
CDT and each of its Subsidiaries have withheld all amounts required by
Applicable Law to be withheld from the wages, salaries, benefits and other
compensation to employees, and is not liable for any arrears of wages or any
Taxes (as defined in Section 3.10(j)) or any penalty for failure to comply with
any of the foregoing, (G) neither CDT nor any of its Subsidiaries is liable for
any payment to any trust or other fund or to any Governmental Entity, with
respect to unemployment compensation benefits, social security or other benefits
or obligations for employees (other than routine payments to be made in the
ordinary course of business consistent with past practice).
(b) As of the date hereof, except as set forth in Section 3.8(b) of CDT
Disclosure Schedule:
(A) neither CDT nor any of its Subsidiaries is a party to, or
otherwise bound by, any collective bargaining agreement or any other
agreement with a labor union or labor organization, nor is any such
agreement presently being negotiated;
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(B) no labor organization or group of employees of CDT or any
of its Subsidiaries has made a pending demand for recognition or
certification, and there are no representation or certification
proceedings or petitions seeking a representation proceeding presently
pending or, to the Knowledge of CDT, threatened to be brought or filed
with the National Labor Relations Board or any other labor relations
tribunal or authority; and
(C) to the Knowledge of CDT, no labor union is seeking to
organize any employees of CDT or any of its Subsidiaries.
SECTION 3.9 Benefit Plans.
(a) With respect to each bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, stock-related or performance award, retirement, vacation,
severance, disability, death benefit, hospitalization, medical, fringe benefit,
disability, and other similar plan, program or arrangement, including, without
limitation, each "employee benefit plan" within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
any other Applicable Laws and any employment agreement, change-in-control
agreement, consulting agreement or severance agreement (such plans, agreements,
programs or arrangements, collectively, "Benefit Plans") with or for the benefit
of any current or former employee, officer or director of CDT or any of its
Subsidiaries or any CDT ERISA Affiliate (as defined in Section 3.9(e)) (the "CDT
Benefit Plans"), no event has occurred and there exists no condition or set of
circumstances, that would reasonably be likely to have a Material Adverse Effect
on CDT under ERISA, the Code or any other Applicable Laws. Section 3.9(a) of the
CDT Disclosure Schedule lists each material CDT Benefit Plan.
(b) Each CDT Benefit Plan has been maintained, funded, administered and
operated in all material respects in accordance with its terms, with the
applicable provisions of ERISA, the Code and other Applicable Law and the terms
of all applicable collective bargaining agreements. Except as would not
reasonably be likely to have a Material Adverse Effect on CDT, each CDT Benefit
Plan, including any material amendments thereto, that is capable of approval by,
or registration or qualification for special tax status with, the appropriate
taxation, social security or supervisory authorities in the relevant country,
state, territory or the like (each, an "Approval") has received such Approval
(or there remains a period of time in which to obtain such Approval retroactive
to the date of any material amendment that has not previously received such
Approval) and no event has occurred that would reasonably be likely to result in
the revocation of such Approval or the imposition of sanctions by such
authorities that would reasonably be likely to be material to CDT and its
Subsidiaries taken as a whole.
(c) Neither CDT nor any of its Subsidiaries has entered into any
agreement, arrangement or understanding, whether written or oral, with any trade
union, works council or other employee representative body or any material
number or category of its employees that would prevent or materially restrict or
impede the implementation of any lay-off, redundancy, severance or similar
program within its or their respective workforces.
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(d) There are no unresolved claims or disputes under the terms of, or
in connection with, any CDT Benefit Plan (other than routine claims for
benefits), and no action, legal or otherwise, has been commenced or, to the
Knowledge of CDT, threatened with respect to any claim or otherwise in
connection with a CDT Benefit Plan that, in each case, if determined in a manner
adverse to CDT or its Subsidiaries would reasonably be likely to result in a
material cost to, or otherwise have a material and adverse effect upon, the
business or operations of CDT and its Subsidiaries taken as a whole.
(e) Except as set forth in Section 3.9(e) of the CDT Disclosure
Schedule, the aggregate value of the assets, based upon the actuarial
assumptions used for funding purposes in the most recent actuarial report
prepared by such plan's actuary, of each Funded Retirement Plan (as defined
below) of CDT or its Subsidiaries or any CDT ERISA Affiliate is equal to or
greater than the aggregate value of such Funded Retirement Plan's liabilities
assessed on an ongoing basis and calculated in accordance with the actuarial
methods and assumptions used in such valuation pursuant to such Funded
Retirement Plan and Applicable Law. Except as set forth in Section 3.9(e) of the
CDT Disclosure Schedule, no Funded Retirement Plan or any trust created
thereunder has incurred any "accumulated funding deficiency" (within the meaning
of Section 302 of ERISA and Section 412 of the Code), whether or not waived, as
of the last date of the most recent fiscal year of each Funded Retirement Plan
ended prior to the Effective Time. For purposes of this Agreement, "Funded
Retirement Plan" means, with respect to a party, a Benefit Plan that is a
"pension plan" within the meaning of Section 3(2) of ERISA (whether or not such
Benefit Plan is subject to ERISA) or other Applicable Laws, including those
under which the assets to satisfy the benefit obligations are legally segregated
from the general assets of such party or its Subsidiaries and are not subject to
the creditors of such party or its Subsidiaries. None of CDT or any of its
Subsidiaries or any other person or entity under common control within the
meaning of Section 414 of the Code with CDT or any of its Subsidiaries (a "CDT
ERISA Affiliate") has incurred any liability under Title IV of ERISA or to any
other governmental entity under other Applicable Laws (other than for payment of
premiums not yet due to the Pension Benefit Guaranty Corporation ("PBGC")),
which liability has not been fully paid. No Funded Retirement Plan of CDT or any
of its Subsidiaries or any CDT ERISA Affiliate has been completely or partially
terminated or been the subject of a "reportable event" as defined in Section
4043 of ERISA. No proceeding by the PBGC to terminate a CDT Benefit Plan has
been instituted or, to the Knowledge of CDT, threatened.
(f) At no time has CDT or any of its Subsidiaries or any CDT ERISA
Affiliate participated in and/or been obligated to contribute to any Benefit
Plan that is a "multiemployer plan" within the meaning of Section 3(37) of
ERISA.
(g) Except as set forth in Section 3.9(g) of the CDT Disclosure
Schedule, no CDT Benefit Plan provides health benefits (whether or not insured),
with respect to employees or former employees of CDT or any of its Subsidiaries
after retirement or other termination of service (other than coverage mandated
by Applicable Law or benefits the full cost of which is borne by the employee or
former employee).
(h) Except as set forth in Section 3.9(h) of the CDT Disclosure
Schedule, neither the negotiation and execution of this Agreement nor the
consummation of the transactions contemplated hereby will (either alone or upon
the occurrence of any additional or subsequent
18
events) constitute an event under any CDT Benefit Plan that will or is
reasonably likely to result in any payment (whether of severance pay or
otherwise), acceleration of payment, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligation to fund benefits with respect
to any employee or former employee of CDT or any of its Subsidiaries. Except as
set forth in Section 3.9(h) of the CDT Disclosure Schedule, there is no
contract, agreement, plan or arrangement with an employee or former employee of
CDT or any of its Subsidiaries to which CDT or any of its Subsidiaries is a
party as of the date of this Agreement, that, individually or collectively and
as a result of the transaction contemplated hereby (whether alone or upon the
occurrence of any additional or subsequent events) or otherwise, would
reasonably be likely to give rise to the payment of any amount that would not be
deductible pursuant to Sections 280G or 162(m) of the Code.
(i) There have been no non-exempt "prohibited transactions" as defined
in Section 406 of ERISA or Section 4975 of the Code with respect to any CDT
Benefit Plan that would reasonably be likely to result in penalties that are
material to CDT; no fiduciary, as defined in Section 3(21) of ERISA, has any
material liability for breach of fiduciary duty or any other failure to act or
comply in connection with the administration or investment of assets of any CDT
Benefit Plan; and CDT, its Subsidiaries and each CDT ERISA Affiliate have
complied in all material respects with the requirements of Part 6 of Subtitle B
of Title I of ERISA and Section 4980B of the Code and any similar state law
("COBRA").
SECTION 3.10 Taxes.
(a) Except as set forth in Section 3.10(a) of the CDT Disclosure
Schedule, each of CDT and its Subsidiaries, including any predecessors thereof,
has (A) duly and timely filed (or there have been filed on its behalf) all
material Tax Returns (as defined below) required to be filed by or on behalf of
it (taking into account all applicable extensions) with the appropriate Tax
Authority (as defined below) and all such Tax Returns are true, correct and
complete, (B) duly paid in full or made provision in accordance with GAAP (or
there has been paid or provision has been made on its behalf) for the payment of
all material Taxes owed by CDT and its Subsidiaries for all periods ending
through the date hereof, and (C) complied in all material respects with all
material Applicable Laws relating to the payment and withholding of Taxes.
(b) Except as set forth in Section 3.10(b) of the CDT Disclosure
Schedule, there are no material Liens for Taxes (other than Taxes not yet due
and payable) upon any property or assets of CDT or any of its Subsidiaries.
(c) Except as set forth in Section 3.10(c) of the CDT Disclosure
Schedule, the unpaid Taxes of CDT and its Subsidiaries (A) did not, as of the
most recent financial statements contained in CDT SEC Documents filed prior to
the date of this Agreement, materially exceed the reserve for Tax liability
(rather than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth on the face of such financial
statements (rather than in any notes thereto), and (B) do not materially exceed
that reserve as adjusted for the passage of time since the date of such
financial statements in accordance with the past custom and practice of CDT and
its Subsidiaries in filing their Tax Returns.
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(d) Except as set forth in Section 3.10(d) of the CDT Disclosure
Schedule, to CDT's Knowledge, no Tax Authority has raised any material issue in
connection with any Audit of CDT or its Subsidiaries. Neither CDT nor any of its
Subsidiaries has received notice of any material claim made by a governmental
authority in a jurisdiction where CDT or any of its Subsidiaries, as applicable,
does not file a Tax Return, that CDT or such Subsidiary is or may be subject to
taxation by that jurisdiction.
(e) Except as set forth in Section 3.10(e) of the CDT Disclosure
Schedule, there are no outstanding requests, agreements, consents or waivers to
extend the statutory period of limitations applicable to the assessment of any
material Taxes or deficiencies against CDT or any of its Subsidiaries.
(f) Neither CDT nor any of its Subsidiaries (A) is a party to any
agreement providing for the allocation or sharing of Taxes imposed on or with
respect to any individual or other Person, (B) has been a member of an
affiliated group (or similar state, local or foreign filing group) filing a
consolidated income Tax Return (other than the group the common parent of which
is CDT) or (C) has any liability for the Taxes of any Person (other than CDT or
any member of the group the common parent of which is CDT) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local or foreign
law), as a transferee or successor, by contract, or otherwise.
(g) Neither CDT nor any of its Subsidiaries has: (A) agreed to make or
is required to make any material adjustment under Section 481(a) of the Code;
(B) constituted either a "distributing corporation" or a "controlled
corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a
distribution of stock qualifying for tax-free treatment under Section 355 of the
Code (1) in the two years prior to the date of this Agreement or (2) in a
distribution which could otherwise constitute part of a "plan" or "series of
related transactions" (within the meaning of Section 355(e) of the Code) in
connection with the Merger; or (C) taken any action, or failed to take any
action, or knows of any fact, agreement, plan or other circumstance, that could
reasonably be expected to prevent the Merger from qualifying as a
"reorganization" within the meaning of Section 368(a) of the Code.
(h) Except as set forth in Section 3.10(h) of the CDT Disclosure
Schedule, none of CDT's Subsidiaries that are not incorporated under the laws of
the United States or a state thereof (A) is, or at any time has been, engaged in
the conduct of a trade or business within the United States within the meaning
of Section 864(b) or Section 882(a) of the Code, or treated as or considered to
be so engaged under Section 882(d) or Section 897 of the Code or otherwise; (B)
is, or at any time has been, a passive foreign investment company within the
meaning of Section 1297 of the Code; (C) is treated other than as a corporation
for United States federal tax purposes; or (D) has, or at any time has had, an
investment in "United States property" within the meaning of Section 956(b) of
the Code.
(i) Neither CDT nor any of its Subsidiaries is, or has been, a United
States real property holding corporation (as defined in Section 897(c)(2) of the
Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the
Code.
20
(j) For purposes of this Agreement, "Audit" means, with respect to any
Person, any examination, audit, assessment, action, proceeding, investigation,
proposed adjustment, matter in controversy, dispute or claim with respect to the
Taxes or Tax Returns of such Person by any Tax Authority or any administrative
or judicial proceedings or appeals of such proceedings relating to Taxes;
"Taxes" means (A) any and all United States federal, state or local or any
non-United States net or gross income, gross receipts, net proceeds,
corporation, capital gains, license, payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, environmental (including taxes
under Section 59A of the Code), customs, capital stock, franchise, profits,
withholding, national insurance, social security (or similar), unemployment,
disability, real property, personal property, sales, inheritance, use, transfer,
registration, value added, alternative or add-on minimum, estimated or other
taxes, assessments, duties, fees, levies or other governmental charges of any
kind whatever, whether disputed or not, including any interest, penalty or
addition thereto; (B) any liability for or in respect of the payment of any
amount of a type described in clause (A) of this definition as a result of being
a member of an affiliated, combined, consolidated, unitary or other group for
Tax purposes; or (C) any liability for or in respect of the payment of any
amount described in clauses (A) or (B) of this definition as a transferee or
successor, by contract or otherwise; "Tax Authority" means the Internal Revenue
Service and any other domestic or foreign governmental authority responsible for
the administration or collection of any Taxes; and "Tax Return" means any
return, report or similar statement (including the attached schedules) filed or
required to be filed with respect to Taxes, including, without limitation, any
information return, claim for refund, amended return, election or declaration of
estimated Taxes.
SECTION 3.11 Environmental Matters.
(a) Except as would not reasonably be likely to have a Material Adverse
Effect on CDT, (i) the operations of CDT and its Subsidiaries have since January
1, 2000, been in compliance and are in compliance with all applicable
Environmental Laws (as defined in Section 9.3(e)), including possession and
compliance with the terms of all licenses, permits and other authorizations
required by Environmental Laws, (ii) there are no pending, or threatened suits,
actions, investigations or proceedings under or pursuant to Environmental Laws
against CDT or its Subsidiaries or involving any real property currently or, to
the Knowledge of CDT, formerly owned, operated or leased by CDT or its
Subsidiaries, (iii) CDT and its Subsidiaries are not subject to and have
received no written allegations of any Environmental Liabilities (as defined in
Section 9.3(f)) and no facts, circumstances or conditions relating to, arising
from, associated with or attributable to any real property currently or formerly
owned, operated or leased by CDT or its Subsidiaries or operations thereon has
resulted in or would reasonably be expected to result in Environmental
Liabilities, and (iv) all real property currently or formally owned, leased or
operated by CDT or its Subsidiaries is free of contamination from Hazardous
Materials (as defined in Section 9.3(i)) that would have an adverse effect on
human health or the environment or give rise to Environmental Liabilities.
(b) Except as set forth in Section 3.11(b) of the CDT Disclosure
Schedule or as would not be likely to be material to CDT and its Subsidiaries,
there are no material pending or threatened suits, actions, claims,
investigations or proceedings against CDT or any of its Subsidiaries with
respect to the presence or alleged presence of any Hazardous Materials in any
product manufactured, sold, marketed, installed or distributed by CDT or any of
its Subsidiaries.
21
SECTION 3.12 Intellectual Property. All material Intellectual Property
(excluding trade secrets, confidential information and unregistered trademarks)
owned or licensed by CDT are set forth in Section 3.12 of the CDT Disclosure
Schedule. Except as set forth in Section 3.12 of the CDT Disclosure Schedule,
(i) CDT and each of its Subsidiaries owns or has a legally enforceable right to
use (in each case, free and clear of any material Liens) all material
Intellectual Property (as defined in Section 9.3(k)) used in or necessary for
the conduct of its business as currently conducted, including without limitation
all patents and patent applications and all trademark registrations and
trademark applications; (ii) to the Knowledge of CDT, the conduct of the
business of CDT and its Subsidiaries as currently conducted does not infringe on
or misappropriate the Intellectual Property rights of any Person, and CDT and
its Subsidiaries are not in breach of any applicable grant, license, agreement,
instrument or other arrangement pursuant to which CDT or any Affiliate acquired
the right to use such Intellectual Property, except in each case as would not
reasonably be likely to have a Material Adverse Effect on CDT; (iii) to the
Knowledge of CDT, no Person is materially misappropriating, infringing, diluting
or otherwise violating any right of CDT or any of its Subsidiaries with respect
to any material Intellectual Property owned or used by CDT or its Subsidiaries;
(iv) within the three (3) year period prior to the date hereof, neither CDT nor
any of its Subsidiaries has received written notice of any pending or threatened
material claim, order or proceeding with respect to the ownership, validity,
enforcement, infringement, misappropriation or maintenance of any material
Intellectual Property owned or used by CDT or its Subsidiaries; (v) except as
would not reasonably be likely to have a Material Adverse Effect on CDT, within
the three (3) year period prior to the date hereof, the Intellectual Property
owned by CDT or its Subsidiaries has not expired or been cancelled or abandoned
and all maintenance and renewal fees necessary to preserve the rights of CDT in
connection with such Intellectual Property have been paid in a manner so as to
maintain those rights; (vi) CDT and each of its Subsidiaries have implemented
commercially reasonable measures to maintain the confidentiality of the material
Intellectual Property used in the business of CDT or its Subsidiaries as
presently conducted; (vii) the Intellectual Property used in the business of CDT
or its Subsidiaries as presently conducted is being used by CDT or its
Subsidiaries in compliance with all applicable laws except where non-compliance
would not reasonably be likely to have a Material Adverse Effect on CDT; and
(viii) all of the material Intellectual Property owned or used by CDT or its
Subsidiaries shall be owned or available for use by CDT or its Subsidiaries
immediately after the Closing on terms and conditions substantially identical to
those under which CDT or its Subsidiaries owned or used such Intellectual
Property immediately prior to the Closing.
SECTION 3.13 State Takeover Statutes. In accordance with the
requirements of Section 203 of the DGCL, CDT, in the CDT Charter, elected not to
be governed by Section 203 of the DGCL. To the Knowledge of CDT, no state
takeover statute is applicable to the Merger or the other transactions
contemplated hereby.
SECTION 3.14 Real Estate.
(a) Section 3.14(a) of the CDT Disclosure Schedule sets forth a true,
correct and complete list of all real property owned in fee simple by CDT or any
of its Subsidiaries (collectively, the "CDT Owned Real Property"). Except as set
forth in Section 3.14(a) of the CDT Disclosure Schedule, with respect to each
such parcel of CDT Owned Real Property: (1) there are no leases, subleases,
licenses, concessions or other agreements, written or oral,
22
granting to any person the right of use or occupancy of any portion of such
parcel other than CDT Leases (as defined in Section 3.14(b)); and (2) there are
no outstanding rights of first refusal, rights of first offer or options to
purchase such parcel or interest thereon.
(b) All of the leases, subleases, licenses, concessions and other
agreements pursuant to which CDT or any of its Subsidiaries holds a leasehold or
subleasehold estate or other right to use or occupy any interest in real
property and pays an annual rent in excess of $500,000 therefor (the "CDT
Leases") and each leased or subleased parcel of real property in which CDT or
any of its Subsidiaries is a tenant or subtenant and pays an annual rent in
excess of $500,000 therefrom (collectively, the "CDT Leased Real Property") are
listed in Section 3.14(b) of the CDT Disclosure Schedule. CDT (either directly
or through a Subsidiary) holds a valid and existing leasehold or subleasehold
interest, as applicable, in the CDT Leased Real Property under each of the CDT
Leases. CDT has delivered or made available to ▇▇▇▇▇▇ true, correct and complete
copies of each of the CDT Leases, including, without limitation, all amendments,
modifications, side agreements, consents, subordination agreements and
guarantees. With respect to each CDT Lease: (1) the CDT Lease is legal, valid,
binding, enforceable and in full force and effect; (2) neither CDT (or its
applicable Subsidiary), nor, to the Knowledge of CDT, any other party to the CDT
Lease, is in any material respect in breach or default under the CDT Lease, and
no event has occurred that, with notice or lapse of time, would constitute a
breach or default in any material respect by CDT (or such Subsidiary) or permit
termination, modification or acceleration under the CDT Lease by any other party
thereto; (3) CDT (or its applicable Subsidiary) has performed all of its
obligations in all material respects under the CDT Lease; (4) CDT has not, and,
to the Knowledge of CDT, no third party has, repudiated any provision of the CDT
Lease; and (5) CDT has not assigned, transferred, conveyed, mortgaged, deeded in
trust or encumbered any interest in the CDT Lease.
(c) The CDT Owned Real Property and the CDT Leased Real Property are
referred to collectively herein as the "CDT Real Property." The CDT Real
Property comprise all of the real property used or intended to be used in, or
otherwise related to, the business of CDT or any of its Subsidiaries. To the
Knowledge of CDT, except as set forth in Section 3.14(c) of the CDT Disclosure
Schedule, each parcel of CDT Real Property is in compliance in all material
respects with all existing Laws, including, without limitation, (1) the
Americans with Disabilities Act, 42 U.S.C. Section 12102 et seq., together with
all rules, regulations and official interpretations promulgated pursuant
thereto, except where noncompliance would not reasonably be likely to have a
Material Adverse Effect on CDT, and (2) all Laws with respect to zoning,
building, fire, life safety, health codes and sanitation. CDT and its
Subsidiaries have received no notice of, and have no Knowledge of, any condition
currently or previously existing on the CDT Real Property or any portion thereof
that may give rise to any violation of, or require any remediation under, any
existing Law applicable to the CDT Real Property if it were disclosed to the
authorities having jurisdiction over such CDT Real Property other than those
arising in the ordinary course of business, except where noncompliance would not
reasonably be likely to result in a material cost to, or otherwise have a
material and adverse effect upon, the business or operations of CDT and its
Subsidiaries taken as a whole.
(d) No damage or destruction has occurred with respect to any of the
CDT Real Property that has had or resulted in, or is reasonably likely to have
or result in, a Material Adverse Effect. All buildings, structures,
improvements, fixtures, building systems and
23
equipment, and all components thereof (the "Improvements"), included in the CDT
Real Property are in all material respects in good condition and repair and
sufficient for the operation of the business conducted thereon (ordinary wear
and tear excepted).
(e) Except as set forth in Section 3.14(e) of the CDT Disclosure
Schedule, there is no condemnation, expropriation or other proceeding in eminent
domain pending or, to CDT's Knowledge, threatened, affecting any material CDT
Real Property or any portion thereof or interest therein.
SECTION 3.15 Brokers. Except for fees payable to Credit Suisse First
Boston LLC, no broker, investment banker, financial advisor or other Person, 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 CDT or Merger Sub.
SECTION 3.16 Opinion of Financial Advisor. CDT has received the opinion
of its financial advisor, Credit Suisse First Boston LLC, as of the date of this
Agreement, to the effect that subject to the limitations set forth in the
opinion, as of such date, the Exchange Ratio is fair, from a financial point of
view, to CDT.
SECTION 3.17 Ownership of ▇▇▇▇▇▇ Common Stock. None of CDT, Merger Sub,
their respective Subsidiaries, officers or directors or, to the Knowledge of CDT
without independent investigation, any of their respective Affiliates, (i)
beneficially owns (as defined in Rule 13d-3 under the Exchange Act) directly or
indirectly, or is party to any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of, shares of capital stock
of ▇▇▇▇▇▇, or (ii) within the preceding thirty-six (36) months, beneficially
owned directly or indirectly, or was party to any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of,
shares of capital stock of ▇▇▇▇▇▇.
SECTION 3.18 Material Contracts.
(a) For purposes of this Agreement, "CDT Material Contract" shall mean:
(1) any "material contracts" (as such term is used in
Item 601(b)(10) of Regulation S-K of the SEC) with respect to
CDT and its Subsidiaries;
(2) any Contract to which CDT or any of its
Subsidiaries is a party, which is material to CDT and its
Subsidiaries, taken as a whole, and which contains any
covenant limiting or restricting the right of CDT or any of
its Subsidiaries, or that would, after the Effective Time,
limit or restrict ▇▇▇▇▇▇ or any of its Subsidiaries (including
the Surviving Corporation and its Subsidiaries), from engaging
or competing in any material line of business or in any
geographic area or with any Person in any material line of
business; or
(3) any Contract or group of Contracts with a Person
(or group of affiliated Persons) to which CDT or any of its
Subsidiaries is a party,
24
the termination or breach of which would reasonably be likely
to have a Material Adverse Effect on CDT.
(b) Schedule. All CDT Material Contracts as of the date hereof are
listed in Section 3.18(b) of the CDT Disclosure Schedule, each of which has
previously been provided to ▇▇▇▇▇▇.
(c) No Breach. Except as set forth in Section 3.18(c) of the CDT
Disclosure Schedule, all CDT Material Contracts are valid and in full force and
effect and enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting the rights and remedies of creditors generally and to
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), except to the extent that (A) they have previously expired
in accordance with their terms or (B) the failure to be in full force and effect
or enforceable would not reasonably be likely to be material to CDT. Neither CDT
nor any of its Subsidiaries, nor, to CDT's Knowledge, any counterparty to any
CDT Material Contract, has breached or violated any provision of, or committed
or failed to perform any act which, with or without notice, lapse of time or
both would constitute a default under the provisions of, any CDT Material
Contract, except in each case for those breaches, violations and defaults which
would not permit any other party to cancel or terminate such CDT Material
Contract, and would not permit any other party to seek material damages or other
remedies (for any or all of such breaches violations or defaults, in the
aggregate).
SECTION 3.19 Title to Assets. Except as disclosed in Section 3.19 of
the CDT Disclosure Schedule or as a result of action expressly permitted or
expressly consented to in writing by Belden pursuant to Section 5.1, CDT and
each of its Subsidiaries have good and valid title to, or a valid leasehold or
subleasehold interest in, all of their real and personal properties and assets
reflected in the CDT Balance Sheet or acquired after October 31, 2003 (other
than assets disposed of since October 31, 2003 in the ordinary course of
business consistent with past practice, in each case free and clear of all
material mortgages, title defects, liens, pledges, encumbrances and
restrictions, except for (i) liens for Taxes accrued but not yet payable; (ii)
liens arising as a matter of Law in the ordinary course of business with respect
to obligations incurred after October 31, 2003, provided that the obligations
secured by such liens are not delinquent; and (iii) with respect to each CDT
Owned Real Property only, (x) zoning, building codes and other land use
Applicable Laws regulating the use or occupancy of such CDT Owned Real Property
or the activities conducted thereon which are imposed by any governmental
authority having jurisdiction over such CDT Owned Real Property which are not
violated by the current use or occupancy of such CDT Owned Real Property or the
operation of the business of CDT and/or its Subsidiaries thereon, except for
violations that would not reasonably be likely to result in a material cost to,
or otherwise have a material and adverse effect upon, the business or operations
of CDT and its Subsidiaries taken as a whole; and (y) easements, covenants,
conditions, restrictions and other similar matters of record affecting title to
such CDT Owned Real Property which do not or would not materially impair the use
or occupancy of such CDT Owned Real Property in the operation of the business of
CDT and/or its Subsidiaries conducted thereon.
SECTION 3.20 Insurance Policies. Section 3.20 of CDT Disclosure
Schedule sets forth all of CDT's and its Subsidiaries' insurance policies,
including third party policies under which
25
CDT claims coverage. CDT has furnished or made available to ▇▇▇▇▇▇ complete and
correct copies of each such policy. Subject to expiration in accordance with the
policy terms, neither CDT nor any Subsidiary of CDT has received notice of any
pending or threatened cancellation or otherwise with respect to any insurance
policies in force naming CDT, any of its Subsidiaries or employees thereof as an
insured or beneficiary or as a loss payable payee, and each of CDT and such
Subsidiaries is in compliance in all material respects with all conditions
contained therein. There are no material pending claims against such insurance
policies by CDT or any Subsidiary of CDT as to which insurers are defending
under reservation of rights or have denied liability, and there exists no
material claim under such insurance policies that has not been properly filed by
CDT or any Subsidiary.
SECTION 3.21 Interested Party Transactions. Except as set forth in
Section 3.21 of CDT Disclosure Schedule, since the date of the CDT Balance
Sheet, no event has occurred that would be required to be reported as a Certain
Relationship or Related Transaction pursuant to Statement of Financial
Accounting Standards No. 57 or Item 404 of Regulation S-K of the SEC.
SECTION 3.22 CDT Rights Agreement. CDT has taken all action, if any, so
that the execution of this Agreement, the consummation of the Merger and the
other transactions contemplated hereby do not and will not result in the grant
of any rights to any Person under the CDT Rights Agreement or enable, require or
cause the CDT Rights to be exercised, distributed or triggered.
SECTION 3.23 Value-Added Resellers, Distributors and Suppliers. CDT
has, and has caused its Subsidiaries to, use commercially reasonable efforts to
maintain good working relationships with all of their respective material
customers, distributors, value-added resellers, dealers and suppliers. Since
October 31, 2003, neither CDT nor any of its Subsidiaries has materially altered
the conduct of its relations with value-added resellers, distributors or
suppliers, including without limitation, sales terms and conditions, except in
the ordinary course of business consistent with past practice. Section 3.23 of
the CDT Disclosure Schedule sets forth a list of all material manufacturer
representative, consulting and supplier relationships where the termination by
CDT or its Subsidiaries would result in material payments or costs.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BELDEN
Except as set forth in the disclosure schedule delivered by Belden to
CDT prior to the execution and delivery by Belden of this Agreement (the "▇▇▇▇▇▇
Disclosure Schedule"), Belden represents and warrants to CDT as set forth below.
Each exception set forth in the ▇▇▇▇▇▇ Disclosure Schedule, and any other
information included in the ▇▇▇▇▇▇ Disclosure Schedule, is identified by
reference to, or has been grouped under a heading referring to, a specific
individual section or subsection of this Agreement and shall be deemed to be
disclosed solely for purposes of such section or subsection, except to the
extent that the relevance of a disclosure in one section or subsection of the
▇▇▇▇▇▇ Disclosure Schedule to another section or subsection of the ▇▇▇▇▇▇
Disclosure Schedule is reasonably apparent on its face. Inclusion of any
information in the ▇▇▇▇▇▇ Disclosure Schedule shall not be construed as an
admission that such information is material to Belden or any of its
Subsidiaries.
26
SECTION 4.1 Organization, Standing and Corporate Power; Charter
Documents; Subsidiaries.
(a) Organization, Standing and Corporate Power. ▇▇▇▇▇▇ is a corporation
duly organized, validly existing and in good standing under the laws of the
State of
Delaware it is incorporated or otherwise organized and has the
requisite corporate power and authority to carry on its business as currently
conducted. Each Subsidiary of ▇▇▇▇▇▇ is a corporation or other legal entity duly
organized, validly existing and in good standing (with respect to jurisdictions
that recognize such concept) under the laws of the jurisdiction in which it is
incorporated or otherwise organized, and has the requisite corporate (or
similar) power and authority to carry on its business as currently conducted,
except where the failure to be so organized, existing or in good standing would
not reasonably be likely to have a Material Adverse Effect on ▇▇▇▇▇▇. Each of
▇▇▇▇▇▇ and its Subsidiaries is duly qualified or licensed to do business and is
in good standing (with respect to jurisdictions which recognize such concept) in
each jurisdiction in which the nature of its business or the ownership, leasing
or operation of its properties makes such qualification or licensing necessary,
except for those jurisdictions where the failure to be so qualified or licensed
or to be in good standing would not reasonably be likely to have a Material
Adverse Effect on ▇▇▇▇▇▇.
(b) Charter Documents. ▇▇▇▇▇▇ has delivered or made available to CDT
prior to the execution of this Agreement complete and correct copies of (A) the
Certificate of Incorporation of Belden (including any certificates of
designation), as amended and currently in effect (the "▇▇▇▇▇▇ Charter"), and the
by-laws of ▇▇▇▇▇▇, as amended and currently in effect (the "▇▇▇▇▇▇ By-Laws,"
and, together with the ▇▇▇▇▇▇ Charter, the "▇▇▇▇▇▇ Organizational Documents"),
and (B) the certificate of incorporation and by-laws or the like organizational
documents, as amended and currently in effect (collectively, the "▇▇▇▇▇▇
Subsidiary Organizational Documents") of each Subsidiary of ▇▇▇▇▇▇, and each
such instrument is in full force and effect. ▇▇▇▇▇▇ is not in violation of the
▇▇▇▇▇▇ Organizational Documents and no Subsidiary of ▇▇▇▇▇▇ is in violation of
its ▇▇▇▇▇▇ Subsidiary Organizational Documents, except, for violations that are
not material to ▇▇▇▇▇▇ and its Subsidiaries taken as a whole.
(c) Subsidiaries. Section 4.1(c) of the ▇▇▇▇▇▇ Disclosure Schedule
lists each Subsidiary of ▇▇▇▇▇▇ and sets forth each such Subsidiary's capital
structure. Except as set forth in Section 4.1(c) of the ▇▇▇▇▇▇ Disclosure
Schedule, all the outstanding shares of capital stock of, or other equity
interests in, each Subsidiary of Belden have been validly issued and are fully
paid and nonassessable and are owned directly or indirectly by Belden, free and
clear of all Liens and free of any other restriction (including any restriction
on the right to vote, sell or otherwise dispose of such capital stock or other
ownership interests).
SECTION 4.2 Capital Structure.
(a) The authorized capital stock of ▇▇▇▇▇▇ consists of 100,000,000
shares of ▇▇▇▇▇▇ Common Stock and 25,000,000 shares of preferred stock, par
value $0.01 per share ("▇▇▇▇▇▇ Preferred Stock"). At the close of business on
December 31, 2003 (A) 25,656,313 shares of ▇▇▇▇▇▇ Common Stock were issued and
outstanding; (B) 547,290 shares of ▇▇▇▇▇▇ Common Stock were held by Belden in
its treasury; (C) no shares of ▇▇▇▇▇▇ Preferred Stock were issued and
outstanding; (D) an aggregate of 1,295,869 shares of ▇▇▇▇▇▇ Common Stock were
reserved
27
for issuance pursuant to the ▇▇▇▇▇▇ Purchase Plans; (E) an aggregate of
3,561,416 shares of ▇▇▇▇▇▇ Common Stock were reserved for issuance pursuant to
the ▇▇▇▇▇▇'▇ 2003 Long-Term Incentive Plan, Non Employee Director Stock Plan and
1993 Long-Term Incentive Plan (such plans, as amended to date, are collectively
referred to herein as the "▇▇▇▇▇▇ Stock Plans"), complete and correct copies of
which, in each case as amended, have been filed as exhibits to the ▇▇▇▇▇▇ SEC
Documents (as defined in Section 4.4(a)) prior to the date of this Agreement or
delivered to CDT; (F) 1,000,000 shares of ▇▇▇▇▇▇ Preferred Stock were designated
as Series A Junior Participating Preferred Stock, par value $0.01 per share, and
were reserved for issuance upon the exercise of preferred stock purchase rights
(the "Belden Rights") issued pursuant to the Rights Agreement dated July 6, 1995
between ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Investor Services LLP (as successor in interest to
First Chicago Trust Company of New York), as Rights Agent (the "▇▇▇▇▇▇ Rights
Agreement"); and (G) one ▇▇▇▇▇▇ Right was outstanding for each outstanding share
of ▇▇▇▇▇▇ Common Stock. All the outstanding shares of capital stock of, or other
equity interests in, Belden have been validly issued and are fully paid and
nonassessable. Except as set forth in this Section 4.2 or Section 4.2(a) of the
▇▇▇▇▇▇ Disclosure Schedule, there are no other equity securities of ▇▇▇▇▇▇ or
securities exchangeable or convertible into or exercisable for such equity
securities issued or outstanding.
(b) As of the close of business on December 31, 2003, 2,785,416 shares
of ▇▇▇▇▇▇ Common Stock were subject to issuance pursuant to outstanding ▇▇▇▇▇▇
Options under the ▇▇▇▇▇▇ Stock Plans and 174,470 shares were subject to issuance
pursuant to the ▇▇▇▇▇▇ Purchase Plans. All shares of ▇▇▇▇▇▇ Common Stock subject
to issuance under the ▇▇▇▇▇▇ Stock Plans and the ▇▇▇▇▇▇ Purchase Plans, upon
issuance upon the terms and subject to the conditions set forth in the
instruments pursuant to which they are issuable, will be duly authorized,
validly issued, fully paid and nonassessable. Except as contemplated by this
Agreement or as set forth in Section 4.2(b) of the ▇▇▇▇▇▇ Disclosure Schedule,
there are no commitments or agreements of any character to which Belden is bound
obligating Belden to accelerate the vesting of any ▇▇▇▇▇▇ Option as a result of
the Merger. There are no outstanding or authorized stock appreciation, phantom
stock, profit participation or other similar rights with respect to ▇▇▇▇▇▇.
(c) No Voting Debt of ▇▇▇▇▇▇ is issued or outstanding.
(d) Except as otherwise set forth in this Section 4.2 or in Section
4.2(d) of the ▇▇▇▇▇▇ Disclosure Schedule, there are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or undertakings
of any kind to which Belden or any of its Subsidiaries is a party or by which
any of them is bound obligating Belden or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock, Voting Debt or other voting securities of ▇▇▇▇▇▇ or any of its
Subsidiaries, or obligating Belden or any of its Subsidiaries to issue, grant,
extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking. All outstanding shares of
▇▇▇▇▇▇ Common Stock, all outstanding ▇▇▇▇▇▇ Options, and all outstanding shares
of capital stock of each Subsidiary of ▇▇▇▇▇▇ have been issued and granted (as
applicable) in compliance in all material respects with (A) all applicable
securities laws and all other Applicable Law and (B) all requirements set forth
in applicable material Contracts.
(e) Since December 31, 2003 and through the date hereof, except (A) as
set forth in Section 4.2(e) of the ▇▇▇▇▇▇ Disclosure Schedule, or (B) issuances
of ▇▇▇▇▇▇ Common Stock
28
pursuant to (i) the exercise of ▇▇▇▇▇▇ Options granted outstanding as of
December 31, 2003 or (2) the ▇▇▇▇▇▇ Purchase Plans authorized as of December 31,
2003, there has been no change in (x) the outstanding capital stock of ▇▇▇▇▇▇,
(y) the number of ▇▇▇▇▇▇ Options outstanding, or (z) the number of other
options, warrants or other rights to purchase ▇▇▇▇▇▇ capital stock.
(f) Except as set forth in Section 4.2(f) of the Belden Disclosure
Schedule, neither Belden nor any Subsidiary of ▇▇▇▇▇▇ is a party to any
agreement, arrangement or understanding restricting the purchase or transfer of,
relating to the voting of, requiring registration of, or granting any preemptive
or antidilutive rights with respect to, any capital stock of Belden or any of
its Subsidiaries or any securities of the type referred to in Section 4.2(d)
hereof.
(g) Except as set forth in Section 4.2(g) of the ▇▇▇▇▇▇ Disclosure
Schedule, other than its Subsidiaries, ▇▇▇▇▇▇ does not directly or indirectly
beneficially own any securities or other beneficial ownership interests in any
other entity except for highly liquid investments with an original maturity of
three months or less at the date of purchase, made in the ordinary course of
business consistent with past practice.
SECTION 4.3 Authority; Board Approval; Voting Requirements; No
Conflict; Required Filings and Consents.
(a) Authority. Subject to obtaining the Belden Stockholder Approval,
▇▇▇▇▇▇ has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Belden, and the consummation by Belden of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of Belden, and no other corporate proceedings on
the part of Belden and no stockholder votes are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby, other than with
respect to approval of this Agreement and the Merger, the Belden Stockholder
Approval. This Agreement has been duly executed and delivered by Belden.
Assuming the due authorization, execution and delivery of this Agreement by CDT
and Merger Sub, this Agreement constitutes the legal, valid and binding
obligation of Belden enforceable against Belden in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether considered
in a proceeding in equity or at law).
(b) Board Approval. The Board of Directors of ▇▇▇▇▇▇ has (A) determined
that this Agreement and the Merger are advisable and fair to and in the best
interest of ▇▇▇▇▇▇ and its stockholders, (B) approved and adopted this
Agreement, the Merger and the other transactions contemplated hereby, which
adoption has not been rescinded or modified, (C) resolved (subject to Section
5.2(d)) to recommend this Agreement and the Merger to its stockholders for
approval, (D) directed that this Agreement and the Merger be submitted to its
stockholders for consideration in accordance with this Agreement; and (E)
approved termination of the ▇▇▇▇▇▇ Rights upon the Effective Time.
(c) Voting Requirements. The affirmative vote in favor of approval of
this Agreement and the Merger by the holders of a majority of the outstanding
shares of ▇▇▇▇▇▇ Common Stock entitled to vote thereon (the "Belden Stockholder
Approval") at a duly convened
29
and held ▇▇▇▇▇▇ Stockholders' Meeting (as defined in Section 6.1(b)) is the only
vote of the holders of any class or series of ▇▇▇▇▇▇'▇ capital stock necessary
to approve and adopt this Agreement, the Merger and the other transactions
contemplated hereby.
(d) No Conflict. Except as set forth in Section 4.3(d) of the ▇▇▇▇▇▇
Disclosure Schedule, the execution and delivery of this Agreement by Belden does
not, and the consummation by Belden of the transactions contemplated hereby and
compliance by Belden with the provisions of this Agreement will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time, or both) under, require any consent, waiver or approval under, give
rise to any right of termination or other right, or the cancellation or
acceleration of any right or obligation or loss of a benefit under, or result in
the creation of any Lien upon any of the properties or assets of ▇▇▇▇▇▇ or any
of its Subsidiaries or any restriction on the conduct of ▇▇▇▇▇▇'▇ business or
operations under, (A) the ▇▇▇▇▇▇ Organizational Documents or the ▇▇▇▇▇▇
Subsidiary Organizational Documents, (B) any Contract, permit, concession,
franchise, license or authorization applicable to Belden or any of its
Subsidiaries or their respective properties or assets, (C) any material
judgment, order or decree, or (D) subject to the governmental filings and other
matters referred to in Section 4.3(e), any statute, law, ordinance, rule or
regulation applicable to ▇▇▇▇▇▇ or any of its Subsidiaries or their respective
properties or assets, other than, in the case of clause (B), any such conflicts,
violations, defaults, rights, losses, restrictions or Liens, or failure to
obtain consents, waivers or approvals, which would not reasonably be likely to
have a Material Adverse Effect on ▇▇▇▇▇▇.
(e) Required Filings or Consents. No consent, approval, order or
authorization of, action by or in respect of, or registration, declaration or
filing with, any Governmental Entity is required to be made or obtained by or
with respect to Belden or any of its Subsidiaries in connection with the
execution and delivery of this Agreement by Belden or the consummation by Belden
of the transactions contemplated hereby, except for:
(A) the filing of a pre-merger notification and report form by
▇▇▇▇▇▇ under the HSR Act, and any applicable filings or notifications
under the antitrust, competition or similar laws of any foreign
jurisdiction;
(B) the filing with the SEC of:
(1) a proxy statement relating to the ▇▇▇▇▇▇
Stockholders' Meeting to be included in the Joint Proxy
Statement;
(2) such reports under Section 13(a), 13(d), 15(d) or
16(a) of the Exchange Act and communications under Rule 425
under the Securities Act, in each case, as may be required in
connection with this Agreement and the transactions
contemplated hereby;
(C) the filing of the Certificate of Merger with the Secretary
of State and appropriate documents with the relevant authorities of
other states in which ▇▇▇▇▇▇ is qualified to do business;
(D) filings required by state securities laws or other "blue
sky" laws; and
30
(E) other consents, approvals, orders or authorizations, the
failure of which to be made or obtained would not reasonably be likely
to have a Material Adverse Effect on ▇▇▇▇▇▇.
SECTION 4.4 SEC Documents; Financial Statements. Except as set forth in
Section 4.4 of the ▇▇▇▇▇▇ Disclosure Schedule:
(a) ▇▇▇▇▇▇ has filed with the SEC all registration statements,
prospectuses, reports, schedules, forms, statements, certifications and other
documents (including exhibits and all other information incorporated by
reference therein) required to be so filed by Belden since January 1, 2000
(excluding the Joint Proxy Statement, the "▇▇▇▇▇▇ SEC Documents"). As of their
respective dates, the ▇▇▇▇▇▇ SEC Documents complied in all material respects
with the applicable requirements of the Securities Act or the Exchange Act, as
the case may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such ▇▇▇▇▇▇ SEC Documents, and none of the ▇▇▇▇▇▇ SEC Documents,
when filed, contained 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 corrected by a subsequently filed
▇▇▇▇▇▇ SEC Document filed with the SEC prior to the date hereof.
(b) The chief executive officer and chief financial officer of ▇▇▇▇▇▇
have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and any related
rules and regulations promulgated by the SEC, and the statements contained in
all such certifications were complete and correct in all material respects as of
the date made. Neither Belden nor any of its officers has received notice from
the SEC or the NYSE questioning or challenging the accuracy, completeness,
content, form or manner of filing or submission of such certifications. ▇▇▇▇▇▇
is, and through the Closing Date will be, otherwise in material compliance with
all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable
listing and corporate governance rules of the New York Stock Exchange.
(c) The financial statements of
Belden included in the ▇▇▇▇▇▇ SEC
Documents, including each ▇▇▇▇▇▇ SEC Document filed after the date hereof until
the Effective Time, complied, as of their respective dates of filing with the
SEC, in all material respects with accounting requirements and the published
rules and regulations of the SEC applicable with respect thereto, have been
prepared in accordance with GAAP (except, in the case of unaudited statements,
as permitted by Form 10-Q or 8-K of the SEC) applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto)
and fairly present the consolidated financial position of ▇▇▇▇▇▇ 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 which are not
material).
(d) Except as reflected or reserved against in the balance sheet of
▇▇▇▇▇▇ dated September 30, 2003 included in the Form 10-Q filed by Belden with
the SEC on November 14, 2003 (including the notes thereto, the "▇▇▇▇▇▇ Balance
Sheet"), neither Belden nor any of its Subsidiaries has any liabilities
(absolute, accrued, contingent or otherwise) which are required by GAAP to be
set forth on a consolidated balance sheet of Belden and its consolidated
Subsidiaries
31
or in the notes thereto, other than (A) liabilities and obligations incurred
since September 30, 2003 in the ordinary course of business which would not
reasonably be likely to have a Material Adverse Effect on ▇▇▇▇▇▇ and (B)
liabilities and obligations incurred in connection with this Agreement or the
transactions contemplated hereby. The inventory reflected on the ▇▇▇▇▇▇ Balance
Sheet reflects the value of that inventory at the lower of (x) the cost of that
inventory or (y) the fair market value of that inventory, and reflects
write-offs and write-downs for damaged or obsolete items, or items of below
standard quality, in accordance with the historical inventory policies and
practices of ▇▇▇▇▇▇ and GAAP.
(e) Neither ▇▇▇▇▇▇ nor any of its Subsidiaries is a party to, or has
any commitment to become a party to, any contract, agreement, arrangement or
understanding (including without limitation any contract or arrangement relating
to any transaction or relationship between or among Belden and any of its
Subsidiaries, on the one hand, and any unconsolidated Affiliate, including
without limitation any structured finance, special purpose or limited purpose
entity or Person, on the other hand), where the result, purpose or intended
effect of such contract or arrangement is to avoid disclosure of any material
transaction involving, or material liabilities of, ▇▇▇▇▇▇ or any of its
Subsidiaries in ▇▇▇▇▇▇'▇ or its Subsidiaries' published financial statements.
SECTION 4.5 Information Supplied. None of the information supplied or
to be supplied by or on behalf of Belden for inclusion or incorporation by
reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the
SEC, at any time it is amended or supplemented or at the time it becomes
effective under the Securities Act, 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 or (ii) the Joint Proxy Statement
will, at the date it is first mailed to ▇▇▇▇▇▇'▇ stockholders or at the time of
the Belden 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. The Joint Proxy Statement and the
Form S-4 will comply as to form in all material respects with the requirements
of the Securities Act and the Exchange Act and the rules and regulations
thereunder, except that no representation or warranty is made by Belden with
respect to information or statements with respect to CDT or its Subsidiaries
made or incorporated by reference therein supplied by or on behalf of CDT for
inclusion or incorporation by reference in the Joint Proxy Statement or the Form
S-4.
SECTION 4.6 Absence of Certain Changes or Events.
(a) Since June 30, 2003 through the date hereof, except as and to the
extent (i) disclosed in ▇▇▇▇▇▇'▇ quarterly report for the fiscal quarter dated
June 30, 2003 and filed on Form 10-Q with the SEC, (ii) set forth in Section
4.6(a) of the ▇▇▇▇▇▇ Disclosure Schedule, or (iii) expressly contemplated by
this Agreement:
(A) ▇▇▇▇▇▇ and its Subsidiaries have conducted their business
only in the ordinary course consistent with past practice;
(B) there has not been any split, combination or
reclassification of any of ▇▇▇▇▇▇'▇ capital stock or any declaration,
setting aside or payment of any
32
dividend on, or other distribution (whether in cash, stock or property)
in respect of, in lieu of, or in substitution for, shares of ▇▇▇▇▇▇'▇
capital stock (other than ▇▇▇▇▇▇ Dividends);
(C) except as required by a change in GAAP, there has not been
any material change in accounting methods, principles or practices by
▇▇▇▇▇▇; and
(D) there has not been any action taken by Belden or any of
its Subsidiaries that, if taken during the period from the date of this
Agreement through the Effective Time, would constitute a breach of
Section 5.1(b), other than actions in connection with entering into
this Agreement.
(b) Since June 30, 2003 through the date hereof, there have not been
any changes, circumstances or events that have had, or would reasonably be
likely to have, a Material Adverse Effect on ▇▇▇▇▇▇.
SECTION 4.7 Compliance with Applicable Laws; Permits; Litigation.
(a) ▇▇▇▇▇▇, its Subsidiaries and employees hold all permits, licenses,
easements, variances, exemptions, orders, consents, registrations and approvals
of all Governmental Entities which are required for the operation of the
businesses of ▇▇▇▇▇▇ and its Subsidiaries in the manner described in the ▇▇▇▇▇▇
SEC Documents filed prior to the date hereof and as they are being conducted as
of the date hereof (the "Belden Permits"), and all Belden Permits are in full
force and effect, except where the failure to have, or the suspension or
cancellation of, or the failure to be valid or in full force and effect of, any
such ▇▇▇▇▇▇ Permit would not reasonably be likely to have a Material Adverse
Effect on ▇▇▇▇▇▇. ▇▇▇▇▇▇ and its Subsidiaries are in compliance with the terms
of the ▇▇▇▇▇▇ Permits and all Applicable Laws relating to ▇▇▇▇▇▇ and its
Subsidiaries or their respective business or properties, except where the
failure to be in compliance with the terms of the ▇▇▇▇▇▇ Permits or such
Applicable Laws would not reasonably be likely to have a Material Adverse Effect
on ▇▇▇▇▇▇.
(b) As of the date hereof, except as and to the extent disclosed in the
▇▇▇▇▇▇ SEC Documents filed prior to the date of this Agreement or as set forth
in Section 4.7(b) of the ▇▇▇▇▇▇ Disclosure Schedule, no action, demand, suit,
proceeding, requirement or investigation by any Governmental Entity and no suit,
action, mediation, arbitration or proceeding by any Person, against or affecting
Belden or any of its Subsidiaries or any of their respective properties,
including Intellectual Property, is pending or, to the Knowledge of ▇▇▇▇▇▇,
threatened which, individually or in the aggregate, has been, or is reasonably
likely to be, material to ▇▇▇▇▇▇.
(c) As of the date hereof, neither Belden nor any of its Subsidiaries
is subject to any material outstanding order, injunction or decree.
SECTION 4.8 Labor and Other Employment Matters.
(a) Except (i) as set forth in Section 4.8(a) of the ▇▇▇▇▇▇ Disclosure
Schedule or (ii) as would not reasonably be likely to have a Material Adverse
Effect on ▇▇▇▇▇▇, (A) no work stoppage, slowdown, lockout, labor strike,
material arbitrations or other labor disputes against Belden or any of its
Subsidiaries are pending or, to the Knowledge of Belden, threatened, (B) no
33
unfair labor practice charges, grievances or complaints are pending or, to the
Knowledge of Belden, threatened against Belden or any of its Subsidiaries, (C)
neither Belden nor any of its Subsidiaries is delinquent in payments to any of
its employees for any wages, salaries, commissions, bonuses or other direct
compensation for any services performed for it or amounts required to be
reimbursed to such employees, (D) Belden and each of its Subsidiaries are in
compliance with all Applicable Laws respecting labor and employment, including,
but not limited to, terms and conditions of employment, workers' compensation,
occupational safety and health requirements, plant closings, wages and hours,
employment discrimination, disability rights or benefits, equal opportunity,
affirmative action, labor relations, employee leave issues and unemployment
insurance and related matters, (E) there are no complaints, charges or claims
against Belden or any of its Subsidiaries pending with or, to the Knowledge of
Belden, threatened by any Governmental Entity or arbitrator based on, arising
out of, in connection with, or otherwise relating to the employment of any
employees by Belden and or any of its Subsidiaries, other than those occurring
in the ordinary course of business, such as claims for workers' compensation or
unemployment benefits, (F) Belden and each of its Subsidiaries have withheld all
amounts required by Applicable Law to be withheld from the wages, salaries,
benefits and other compensation to employees; and is not liable for any arrears
of wages or any Taxes or any penalty for failure to comply with any of the
foregoing and (G) neither Belden nor any of its Subsidiaries is liable for any
payment to any trust or other fund or to any Governmental Entity, with respect
to unemployment compensation benefits, social security or other benefits or
obligations for employees (other than routine payments to be made in the
ordinary course of business consistent with past practice).
(b) As of the date hereof, except as set forth in Section 4.8(b) of the
▇▇▇▇▇▇ Disclosure Schedule:
(A) neither Belden nor any of its Subsidiaries is a party to,
or otherwise bound by, any collective bargaining agreement or any other
agreement with a labor union or labor organization, nor is any such
agreement presently being negotiated;
(B) no labor organization or group of employees of ▇▇▇▇▇▇ or
any of its Subsidiaries has made a pending demand for recognition or
certification, and there are no representation or certification
proceedings or petitions seeking a representation proceeding presently
pending or, to the Knowledge of Belden, threatened to be brought or
filed with the National Labor Relations Board or any other labor
relations tribunal or authority; and
(C) to the Knowledge of ▇▇▇▇▇▇, no labor union is seeking to
organize any employees of ▇▇▇▇▇▇ or any of its Subsidiaries.
SECTION 4.9 Benefit Plans.
(a) With respect to each Benefit Plan with or for the benefit of any
current or former employee, officer or director of Belden or any of its
Subsidiaries or any Belden ERISA Affiliate (as defined in Section 4.9(e)) (the
"▇▇▇▇▇▇ Benefit Plans"), no event has occurred and there exists no condition or
set of circumstances, that would reasonably be likely to have a Material Adverse
34
Effect on ▇▇▇▇▇▇ under ERISA, the Code or any other Applicable Law. Section
4.9(a) of the ▇▇▇▇▇▇ Disclosure Schedule lists each material ▇▇▇▇▇▇ Benefit
Plan.
(b) Each ▇▇▇▇▇▇ Benefit Plan has been maintained, funded, administered
and operated in all material respects in accordance with its terms, with the
applicable provisions of ERISA, the Code and other Applicable Law and the terms
of all applicable collective bargaining agreements, except as would not
reasonably be likely to have a Material Adverse Effect on ▇▇▇▇▇▇, each ▇▇▇▇▇▇
Benefit Plan, including any material amendments thereto, that is capable of
Approval has received such Approval (or there remains a period of time in which
to obtain such Approval retroactive to the date of any material amendment that
has not previously received such Approval) and no event has occurred that would
reasonably be likely to result in the revocation of such Approval or the
imposition of sanctions by such authorities that would reasonably be likely to
be material to ▇▇▇▇▇▇ and its Subsidiaries taken as a whole.
(c) Neither ▇▇▇▇▇▇ nor any of its Subsidiaries has entered into any
agreement, arrangement or understanding, whether written or oral, with any trade
union, works council or other employee representative body or any material
number or category of its employees that would prevent or materially restrict or
impede the implementation of any lay-off, redundancy, severance or similar
program within its or their respective workforces.
(d) There are no unresolved claims or disputes under the terms of, or
in connection with, any Belden Benefit Plan (other than routine claims for
benefits), and no action, legal or otherwise, has been commenced or, to the
Knowledge of ▇▇▇▇▇▇, threatened with respect to any claim or otherwise in
connection with a ▇▇▇▇▇▇ Benefit Plan that, in each case, if determined in a
manner adverse to Belden or its Subsidiaries would reasonably be likely to
result in a material cost to, or otherwise have a material and adverse effect
upon, the business or operations of ▇▇▇▇▇▇ and its Subsidiaries taken as a
whole.
(e) Except as set forth in Section 4.9(e) of the ▇▇▇▇▇▇ Disclosure
Schedule, the aggregate value of the assets, based upon the actuarial
assumptions used for funding purposes in the most recent actuarial report
prepared by such plan's actuary, of each Funded Retirement Plan of ▇▇▇▇▇▇ or its
Subsidiaries or any ▇▇▇▇▇▇ ERISA Affiliate is equal to or greater than the
aggregate value of such Funded Retirement Plan's liabilities assessed on an
ongoing basis and calculated in accordance with the actuarial methods and
assumptions used in such valuation pursuant to such Funded Retirement Plan and
Applicable Law. Except as set forth in Section 4.9(e) of the ▇▇▇▇▇▇ Disclosure
Schedule, no Funded Retirement Plan or any trust created thereunder has incurred
any "accumulated funding deficiency" (within the meaning of Section 302 of ERISA
and Section 412 of the Code), whether or not waived, as of the last date of the
most recent fiscal year of each Funded Retirement Plan ended prior to the
Effective Time. None of Belden or any of its Subsidiaries or any other person or
entity under common control within the meaning of Section 414 of the Code with
Belden or any of its Subsidiaries (a "▇▇▇▇▇▇ ERISA Affiliate") has incurred any
liability under Title IV of ERISA or to any other governmental entity under
Applicable Laws (other than for payment of premiums not yet due to the PBGC),
which liability has not been fully paid. No Funded Retirement Plan of ▇▇▇▇▇▇,
any of its Subsidiaries or any ▇▇▇▇▇▇ ERISA Affiliate has been completely or
partially terminated or been the subject of a "reportable event" as defined in
Section 4043 of ERISA. No proceeding by the PBGC to terminate a ▇▇▇▇▇▇ Benefit
Plan has been instituted or, to the Knowledge of ▇▇▇▇▇▇, threatened.
35
(f) At no time has Belden or any of its Subsidiaries or any Belden
ERISA Affiliate participated in and/or been obligated to contribute to any
Benefit Plan that is a "multiemployer plan" within the meaning of Section 3(37)
of ERISA.
(g) Except as set forth in Section 4.9(g) of the Belden Disclosure
Schedule, no ▇▇▇▇▇▇ Benefit Plan provides health benefits (whether or not
insured), with respect to employees or former employees of Belden or any of its
Subsidiaries after retirement or other termination of service (other than
coverage mandated by Applicable Law or benefits, the full cost of which is borne
by the employee or former employee).
(h) Except as set forth in Section 4.9(h) of the ▇▇▇▇▇▇ Disclosure
Schedule, neither the negotiation and execution of this Agreement nor the
consummation of the transactions contemplated hereby will (either alone or upon
the occurrence of any additional or subsequent events) constitute an event under
any Belden Benefit Plan that will or is reasonably likely to result in any
payment (whether of severance pay or otherwise), acceleration of payment,
forgiveness of indebtedness, vesting, distribution, increase in benefits or
obligation to fund benefits with respect to any employee or former employee of
Belden or any of its Subsidiaries. Except as set forth in Section 4.9(h) of the
▇▇▇▇▇▇ Disclosure Schedule, there is no contract, agreement, plan or arrangement
with an employee or former employee of Belden or any of its Subsidiaries to
which Belden or any of its Subsidiaries is a party as of the date of this
Agreement, that, individually or collectively and as a result of the transaction
contemplated hereby (whether alone or upon the occurrence of any additional or
subsequent events) or otherwise, would reasonably be likely to give rise to the
payment of any amount that would not be deductible pursuant to Sections 280G or
162(m) of the Code. ▇▇▇▇▇▇ has received a definitive acknowledgement from ▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ that the transactions contemplated by this Agreement,
including, without limitation, those contemplated by Section 6.13, do not and
shall not be deemed to constitute "Good Reason" under the Change of Control
Employment Agreement, dated as of July 31, 2001, by and between ▇▇▇▇▇▇ and ▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
(i) There have been no non-exempt "prohibited transactions" as defined
in Section 406 of ERISA or Section 4975 of the Code with respect to any Belden
Benefit Plan that would reasonably be likely to result in penalties that are
material to ▇▇▇▇▇▇; no fiduciary, as defined in Section 3(21) of ERISA, has any
material liability for breach of fiduciary duty or any other failure to act or
comply in connection with the administration or investment of assets of any
Belden Benefit Plan; and Belden, its Subsidiaries and each ▇▇▇▇▇▇ ERISA
Affiliate have complied in all material respects with the requirements of COBRA.
SECTION 4.10 Taxes.
(a) Except as set forth in Section 4.10(a) of the ▇▇▇▇▇▇ Disclosure
Schedule, each of Belden and its Subsidiaries, including any predecessors
thereof, has (A) duly and timely filed (or there have been filed on its behalf)
all material Tax Returns required to be filed by or on behalf of it (taking into
account all applicable extensions) with the appropriate Tax Authority and all
such Tax Returns are true, correct and complete, (B) duly paid in full or made
provision in accordance with GAAP (or there has been paid or provision has been
made on its behalf) for the payment of all material Taxes owed by Belden and its
Subsidiaries for all periods ending through
36
the date hereof, and (C) complied in all material respects with all material
Applicable Laws relating to the payment and withholding of Taxes.
(b) Except as set forth in Section 4.10(b) of the ▇▇▇▇▇▇ Disclosure
Schedule, there are no material Liens for Taxes (other than Taxes not yet due
and payable) upon any property or assets of Belden or any of its Subsidiaries.
(c) Except as set forth in Section 4.10(c) of the ▇▇▇▇▇▇ Disclosure
Schedule, the unpaid Taxes of ▇▇▇▇▇▇ and its Subsidiaries (A) did not, as of the
most recent financial statements contained in the ▇▇▇▇▇▇ SEC Documents filed
prior to the date of this Agreement, materially exceed the reserve for Tax
liability (rather than any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the face of such
financial statements (rather than in any notes thereto), and (B) do not
materially exceed that reserve as adjusted for the passage of time since the
date of such financial statements in accordance with the past custom and
practice of ▇▇▇▇▇▇ and its Subsidiaries in filing their Tax Returns.
(d) Except as set forth in Section 4.10(d) of the ▇▇▇▇▇▇ Disclosure
Schedule, to ▇▇▇▇▇▇'▇ Knowledge, no Tax Authority has raised any material issue
in connection with any Audit of ▇▇▇▇▇▇ and its Subsidiaries. Neither Belden nor
any of its Subsidiaries has received notice of any material claim made by a
governmental authority in a jurisdiction where Belden or any of its
Subsidiaries, as applicable, does not file a Tax Return, that ▇▇▇▇▇▇ or such
Subsidiary is or may be subject to taxation by that jurisdiction.
(e) Except as set forth in Section 4.10(e) of the ▇▇▇▇▇▇ Disclosure
Schedule, there are no outstanding requests, agreements, consents or waivers to
extend the statutory period of limitations applicable to the assessment of any
material Taxes or deficiencies against ▇▇▇▇▇▇ or any of its Subsidiaries.
(f) Neither ▇▇▇▇▇▇ nor any of its Subsidiaries (A) is a party to any
agreement providing for the allocation or sharing of Taxes imposed on or with
respect to any individual or other Person, except as set forth on Section
4.10(f) of the ▇▇▇▇▇▇ Disclosure Schedule, (B) has been a member of an
affiliated group (or similar state, local or foreign filing group) filing a
consolidated income Tax Return (other than the group the common parent of which
is Belden) or (C) has any liability for the Taxes of any Person (other than
Belden or any member of the group the common parent of which is ▇▇▇▇▇▇) under
Treasury Regulation Section 1.1502-6 (or any similar provision of state, local
or foreign law), as a transferee or successor, by contract, or otherwise.
(g) Neither ▇▇▇▇▇▇ nor any of its Subsidiaries has: (A) agreed to make
or is required to make any material adjustment under Section 481(a) of the Code;
(B) constituted either a "distributing corporation" or a "controlled
corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a
distribution of stock qualifying for tax-free treatment under Section 355 of the
Code (I) in the two years prior to the date of this Agreement or (II) in a
distribution which could otherwise constitute part of a "plan" or "series of
related transactions" (within the meaning of Section 355(e) of the Code) in
connection with the Merger; or (C) taken any action, or failed to take any
action, or knows of any fact, agreement, plan or other
37
circumstance, that could reasonably be expected to prevent the Merger from
qualifying as a "reorganization" within the meaning of Section 368(a) of the
Code.
(h) Except as set forth in Section 4.10(h) of the Belden Disclosure
Schedule, none of the ▇▇▇▇▇▇'▇ Subsidiaries that are not incorporated under the
laws of the United States or a state thereof (A) is, or at any time has been,
engaged in the conduct of a trade or business within the United States within
the meaning of Section 864(b) or Section 882(a) of the Code, or treated as or
considered to be so engaged under Section 882(d) or Section 897 of the Code or
otherwise; (B) is, or at any time has been, a passive foreign investment company
within the meaning of Section 1297 of the Code; (C) is treated other than as a
corporation for United States federal tax purposes; or (D) has, or at any time
has had, an investment in "United States property" within the meaning of Section
956(b) of the Code.
(i) Neither ▇▇▇▇▇▇ nor any of its Subsidiaries is, or has been, a
United States real property holding corporation (as defined in Section 897(c)(2)
of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii)
of the Code.
SECTION 4.11 Environmental Matters.
(a) Except as would not reasonably be likely to have a Material Adverse
Effect on ▇▇▇▇▇▇, (i) the operations of ▇▇▇▇▇▇ and its Subsidiaries have since
January 1, 2000, been in compliance and are in compliance with all applicable
Environmental Laws, including possession and compliance with the terms of all
licenses, permits and other authorizations required by Environmental Laws, (ii)
there are no pending or threatened suits, actions, investigations or proceedings
under or pursuant to Environmental Laws against Belden or its Subsidiaries or
involving any real property currently or, to the Knowledge of ▇▇▇▇▇▇, formerly
owned, operated or leased by Belden or its Subsidiaries, (iii) ▇▇▇▇▇▇ and its
Subsidiaries are not subject to and have received no written allegations of any
Environmental Liabilities and no facts, circumstances or conditions relating to,
arising from, associated with or attributable to any real property currently or
formerly owned, operated or leased by Belden or its Subsidiaries or operations
thereon has resulted in or would reasonably be expected to result in
Environmental Liabilities, and (iv) all real property currently or formerly
owned, leased or operated by Belden or its Subsidiaries is free of contamination
from Hazardous Materials that would have an adverse effect on human health or
the environment or give rise to Environmental Liabilities.
(b) Except as set forth in Section 4.11 of the ▇▇▇▇▇▇ Disclosure
Schedule or as would not be likely to be material to CDT and its Subsidiaries,
there are no material pending or threatened suits, actions, claims,
investigations or proceedings against ▇▇▇▇▇▇ or any of its Subsidiaries with
respect to the presence or alleged presence of any Hazardous Materials in any
product manufactured, sold, marketed, installed or distributed by Belden or any
of its Subsidiaries.
SECTION 4.12 Intellectual Property. All material Intellectual Property
(excluding trade secrets, confidential information and unregistered trademarks)
owned or licensed by Belden are set forth in Section 4.12(a) of the ▇▇▇▇▇▇
Disclosure Schedule. Except as set forth in Section 4.12(a) of the ▇▇▇▇▇▇
Disclosure Schedule,(i) ▇▇▇▇▇▇ and each of its Subsidiaries owns or has a
legally enforceable right to use (in each case, free and clear of any material
Liens) all material
38
Intellectual Property used in or necessary for the conduct of its business as
currently conducted, including without limitation all patents and patent
applications and all trademark registrations and trademark applications; (ii) to
the Knowledge of ▇▇▇▇▇▇, the conduct of the business of ▇▇▇▇▇▇ and its
Subsidiaries as currently conducted does not infringe on or misappropriate the
material Intellectual Property rights of any Person, and ▇▇▇▇▇▇ and its
Subsidiaries are not in breach of any applicable grant, license, agreement,
instrument or other arrangement pursuant to which ▇▇▇▇▇▇ or any Affiliate
acquired the right to use such Intellectual Property, except in each case as
would not reasonably be likely to have a Material Adverse Effect on ▇▇▇▇▇▇;
(iii) to the Knowledge of ▇▇▇▇▇▇, no Person is misappropriating, infringing,
diluting or otherwise violating any right of ▇▇▇▇▇▇ or any of its Subsidiaries
with respect to any material Intellectual Property owned or used by Belden or
its Subsidiaries; (iv) within the three (3) year period prior to the date
hereof, neither ▇▇▇▇▇▇ nor any of its Subsidiaries has received written notice
of any pending or threatened material claim, order or proceeding with respect to
the ownership, validity, enforcement, infringement, misappropriation or
maintenance of any material Intellectual Property owned or used by Belden or its
Subsidiaries; (v) except as would not reasonably be likely to have a Material
Adverse Effect on ▇▇▇▇▇▇, within the three (3) year period prior to the date
hereof, the Intellectual Property owned by ▇▇▇▇▇▇ or its Subsidiaries has not
expired or been cancelled or abandoned and all maintenance and renewal fees
necessary to preserve the rights of Belden in connection with such Intellectual
Property have been paid in a manner so as to maintain those rights; (vi) ▇▇▇▇▇▇
and each of its Subsidiaries have implemented commercially reasonable measures
to maintain the confidentiality of material Intellectual Property used in the
business of ▇▇▇▇▇▇ or its Subsidiaries as presently conducted; (vii) the
Intellectual Property used in the business of ▇▇▇▇▇▇ or its Subsidiaries as
presently conducted is being used by Belden or its Subsidiaries in compliance
with all applicable laws, except where non-compliance would not reasonably be
expected to have a Material Adverse Effect on ▇▇▇▇▇▇; and (viii) all of the
material Intellectual Property owned or used by Belden or its Subsidiaries shall
be owned or available for use by ▇▇▇▇▇▇ or its Subsidiaries immediately after
the Closing on terms and conditions substantially identical to those under which
▇▇▇▇▇▇ or its Subsidiaries owned or used such Intellectual Property immediately
prior to the Closing.
SECTION 4.13 State Takeover Statutes. The Board of Directors of ▇▇▇▇▇▇
has adopted a resolution or resolutions approving this Agreement, the Merger and
the other transactions contemplated hereby, and, assuming the accuracy of CDT's
representation and warranty contained in Section 3.17 (without giving effect to
the Knowledge qualification contained therein), such approval constitutes
approval of the Merger and the other transactions contemplated hereby by the
Board of Directors of Belden under the provisions of Section 203 of the DGCL
such that Section 203 does not apply to this Agreement and the other
transactions contemplated hereby. To the Knowledge of ▇▇▇▇▇▇, no state takeover
statute other than Section 203 of the DGCL (which has been rendered
inapplicable) is applicable to the Merger or the other transactions contemplated
hereby.
SECTION 4.14 Real Estate.
(a) Section 4.14(a) of the Belden Disclosure Schedule sets forth a
true, correct and complete list of all real property owned in fee simple by
Belden or any of its Subsidiaries (collectively, the "▇▇▇▇▇▇ Owned Real
Property"). Except as set forth in Section 4.14(a) of the ▇▇▇▇▇▇ Disclosure
Schedule, with respect to each such parcel of ▇▇▇▇▇▇ Owned Real Property:
39
(1) there are no leases, subleases, licenses, concessions or other agreements,
written or oral, granting to any person the right of use or occupancy of any
portion of such parcel other than the Belden Leases (as defined in Section
4.14(b)); and (2) there are no outstanding rights of first refusal, rights of
first offer or options to purchase such parcel or interest thereon.
(b) All of the leases, subleases, licenses, concessions and other
agreements pursuant to which the Belden or any of its Subsidiaries holds a
leasehold or subleasehold estate or other right to use or occupy any interest in
real property and pays an annual rent in excess of $500,000 therefor (the
"▇▇▇▇▇▇ Leases") and each leased or subleased parcel of real property in which
Belden or any of its Subsidiaries is a tenant or subtenant and pays an annual
rent in excess of $500,000 therefrom (collectively, the "▇▇▇▇▇▇ Leased Real
Property") are listed in Section 4.14(b) of the ▇▇▇▇▇▇ Disclosure Schedule.
▇▇▇▇▇▇ (either directly or through a Subsidiary) holds a valid and existing
leasehold or subleasehold interest, as applicable, in the ▇▇▇▇▇▇ Leased Real
Property under each of the Belden Leases. ▇▇▇▇▇▇ has delivered or made available
to CDT true, correct and complete copies of each of the ▇▇▇▇▇▇ Leases,
including, without limitation, all amendments, modifications, side agreements,
consents, subordination agreements and guarantees. With respect to each ▇▇▇▇▇▇
Lease: (1) the ▇▇▇▇▇▇ Lease is legal, valid, binding, enforceable and in full
force and effect; (2) neither the Belden (or its applicable Subsidiary), nor, to
the Knowledge of the Belden, any other party to the ▇▇▇▇▇▇ Lease, is in any
material respect in breach or default under the ▇▇▇▇▇▇ Lease, and no event has
occurred that, with notice or lapse of time, would constitute a breach or
default in any material respect by the Belden (or such Subsidiary) or permit
termination, modification or acceleration under the ▇▇▇▇▇▇ Lease by any other
party thereto; (3) the Belden (or its applicable Subsidiary) has performed all
of its obligations in all material respects under the ▇▇▇▇▇▇ Lease; (4) the
Belden has not, and, to the Knowledge of the ▇▇▇▇▇▇, no third party has,
repudiated any provision of the ▇▇▇▇▇▇ Lease; and (5) the Belden has not
assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any
interest in the ▇▇▇▇▇▇ Lease.
(c) The ▇▇▇▇▇▇ Owned Real Property and the Belden Leased Real Property
are referred to collectively herein as the "▇▇▇▇▇▇ Real Property." The ▇▇▇▇▇▇
Real Property comprise all of the real property used or intended to be used in,
or otherwise related to, the business of ▇▇▇▇▇▇ or any of its Subsidiaries. To
the Knowledge of ▇▇▇▇▇▇, except as set forth in Section 4.14(c) of the ▇▇▇▇▇▇
Disclosure Schedule, each parcel of ▇▇▇▇▇▇ Real Property is in compliance in all
material respects with all existing Laws, including, without limitation, (1) the
Americans with Disabilities Act, 42 U.S.C. Section 12102 et seq., together with
all rules, regulations and official interpretations promulgated pursuant
thereto, except where noncompliance would not reasonably be likely to have a
Material Adverse Effect on ▇▇▇▇▇▇, and (2) all Laws with respect to zoning,
building, fire, life safety, health codes and sanitation. ▇▇▇▇▇▇ and its
Subsidiaries have received no notice of, and have no Knowledge of, any condition
currently or previously existing on the ▇▇▇▇▇▇ Real Property or any portion
thereof that may give rise to any violation of, or require any remediation
under, any existing Law applicable to the ▇▇▇▇▇▇ Real Property if it were
disclosed to the authorities having jurisdiction over such ▇▇▇▇▇▇ Real Property
other than those arising in the ordinary course of business, except where
noncompliance would not reasonably be likely to result in a material cost to, or
otherwise have a material and adverse effect upon, the business or operations of
▇▇▇▇▇▇ and its Subsidiaries taken as a whole.
40
(d) No damage or destruction has occurred with respect to any of the
▇▇▇▇▇▇ Real Property that has had or resulted in, or is reasonably likely to
have or result in, a ▇▇▇▇▇▇ Material Adverse Effect. All Improvements included
in the ▇▇▇▇▇▇ Real Property are in all materials respects in good condition and
repair and sufficient for the operation of the business conducted thereon
(ordinary wear and tear excepted).
(e) Except as set forth in Section 4.14(e) of the ▇▇▇▇▇▇ Disclosure
Schedule, there is no condemnation, expropriation or other proceeding in eminent
domain pending or, to ▇▇▇▇▇▇'▇ Knowledge, threatened, affecting any material
▇▇▇▇▇▇ Real Property or any portion thereof or interest therein.
SECTION 4.15 Brokers. Except for fees payable to UBS Securities LLC, no
broker, investment banker, financial advisor or other Person 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 ▇▇▇▇▇▇.
SECTION 4.16 Opinion of Financial Advisor. ▇▇▇▇▇▇ has received the
opinion of its financial advisor, UBS Securities LLC, as of the date of this
Agreement, to the effect that subject to the limitations set forth in the
opinion, as of such date, the Exchange Ratio is fair, from a financial point of
view, to the holders of ▇▇▇▇▇▇ Common Stock.
SECTION 4.17 Ownership of CDT Common Stock. None of ▇▇▇▇▇▇, its
Subsidiaries, officers or directors or, to the Knowledge of ▇▇▇▇▇▇ without
independent investigation, any of their respective Affiliates, (i) beneficially
owns (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly,
or is party to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, shares of capital stock of CDT, or
(ii) within the preceding thirty-six (36) months, beneficially owned directly or
indirectly, or was party to any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of, shares of capital stock
of CDT.
SECTION 4.18 Material Contracts.
(a) For purposes of this Agreement, "▇▇▇▇▇▇ Material Contract" shall
mean:
(1) any "material contracts" (as such term is used in Item
601(b)(10) of Regulation S-K of the SEC) with respect to ▇▇▇▇▇▇ and its
Subsidiaries;
(2) any Contract to which Belden or any of its Subsidiaries is
a party, which is material to ▇▇▇▇▇▇ and its Subsidiaries, taken as a
whole, and which contains any covenant limiting or restricting the
right of ▇▇▇▇▇▇ or any of its Subsidiaries, or that would, after the
Effective Time, limit or restrict ▇▇▇▇▇▇ or any of its Subsidiaries
(including the Surviving Corporation and its Subsidiaries), from
engaging or competing in any material line of business or in any
geographic area or with any Person in any material line of business; or
41
(3) any Contract or group of Contracts with a Person (or group
of affiliated Persons) to which Belden or any of its Subsidiaries is a
party, the termination or breach of which would reasonably be likely to
have a Material Adverse Effect on ▇▇▇▇▇▇.
(b) Schedule. All ▇▇▇▇▇▇ Material Contracts as of the date hereof are
listed in Section 4.18(b) of the ▇▇▇▇▇▇ Disclosure Schedule, each of which has
previously been provided to CDT.
(c) No Breach. All ▇▇▇▇▇▇ Material Contracts are valid and in full
force and effect and enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether considered
in a proceeding in equity or at law), except to the extent that (A) they have
previously expired in accordance with their terms or (B) the failure to be in
full force and effect or enforceable would not reasonably be likely to be
material to ▇▇▇▇▇▇. Neither Belden nor any of its Subsidiaries, nor, to ▇▇▇▇▇▇'▇
Knowledge, any counterparty to any ▇▇▇▇▇▇ Material Contract, has breached or
violated any provision of, or committed or failed to perform any act which, with
or without notice, lapse of time or both would constitute a default under the
provisions of, any ▇▇▇▇▇▇ Material Contract, except in each case for those
breaches, violations and defaults which would not permit any other party to
cancel or terminate such ▇▇▇▇▇▇ Material Contract, and would not permit any
other party to seek material damages or other remedies (for any or all of such
breaches, violations or defaults, in the aggregate).
SECTION 4.19 Title to Assets. Except as disclosed in Section 4.19 of
the Belden Disclosure Schedule or as a result of action expressly permitted or
expressly consented to in writing by CDT pursuant to Section 5.1, Belden and
each of its Subsidiaries have good and valid title to, or a valid leasehold or
subleasehold interest in, all of their real and personal properties and assets
reflected in the ▇▇▇▇▇▇ September 30, 2003 Balance Sheet or acquired after
September 30, 2003 (other than assets disposed of since September 30, 2003 in
the ordinary course of business consistent with past practice, in each case free
and clear of all material mortgages, title defects, liens, pledges, encumbrances
and restrictions, except for (i) liens for Taxes accrued but not yet payable;
(ii) liens arising as a matter of Law in the ordinary course of business with
respect to obligations incurred after September 30, 2003, provided that the
obligations secured by such liens are not delinquent; and (iii) with respect to
each ▇▇▇▇▇▇ Owned Real Property only, (x) zoning, building codes and other land
use Applicable Laws regulating the use or occupancy of such ▇▇▇▇▇▇ Owned Real
Property or the activities conducted thereon which are imposed by any
governmental authority having jurisdiction over such ▇▇▇▇▇▇ Owned Real Property
which are not violated by the current use or occupancy of such ▇▇▇▇▇▇ Owned Real
Property or the operation of the business of Belden and/or its Subsidiaries
thereon, except for violations that would not reasonably be likely to result in
a material cost to, or otherwise have a material and adverse effect upon, the
business or operations of ▇▇▇▇▇▇ and its Subsidiaries taken as a whole; and (y)
easements, covenants, conditions, restrictions and other similar matters of
record affecting title to such ▇▇▇▇▇▇ Owned Real Property which do not or would
not materially impair the use or occupancy of such Belden Owned Real Property in
the operation of the business of ▇▇▇▇▇▇ and/or its Subsidiaries conducted
thereon.
42
SECTION 4.20 Insurance Policies. Section 4.20 of the ▇▇▇▇▇▇ Disclosure
Schedule sets forth all of ▇▇▇▇▇▇'▇ and its Subsidiaries' insurance policies,
including third party policies under which ▇▇▇▇▇▇ claims coverage. ▇▇▇▇▇▇ has
furnished or made available to CDT complete and correct copies of each such
policy. Subject to expiration in accordance with the policy terms, neither
Belden nor any Subsidiary of ▇▇▇▇▇▇ has received notice of any pending or
threatened cancellation (retroactive or otherwise) with respect to any of the
insurance policies in force naming Belden, any of its Subsidiaries or employees
thereof as an insured or beneficiary or as a loss payable payee, and each of
▇▇▇▇▇▇ and such Subsidiaries is in compliance in all material respects with all
conditions contained therein. There are no material pending claims against such
insurance policies by Belden or any Subsidiary of Belden as to which insurers
are defending under reservation of rights or have denied liability, and there
exists no material claim under such insurance policies that has not been
properly filed by Belden or any Subsidiary.
SECTION 4.21 Interested Party Transactions. Except as set forth in
Section 4.21 of the Belden Disclosure Schedule, since the date of the ▇▇▇▇▇▇
Balance Sheet, no event has occurred that would be required to be reported as a
Certain Relationship or Related Transaction pursuant to Statement of Financial
Accounting Standards No. 57 or Item 404 of Regulation S-K of the SEC.
SECTION 4.22 ▇▇▇▇▇▇ Rights Agreement. ▇▇▇▇▇▇ has taken all action so
that the execution of this Agreement and the consummation of the Merger and
other transactions contemplated hereby do not and will not result in the grant
of any rights to any Person under the ▇▇▇▇▇▇ Rights Agreement or enable, require
or cause the ▇▇▇▇▇▇ Rights to be exercised, distributed or triggered. The Board
of Directors of ▇▇▇▇▇▇ has approved an amendment to the ▇▇▇▇▇▇ Rights Agreement
to provide that the ▇▇▇▇▇▇ Rights will terminate upon the Effective Time.
SECTION 4.23 Value-Added Resellers, Distributors and Suppliers. ▇▇▇▇▇▇
has, and has caused its Subsidiaries to, use commercially reasonable efforts to
maintain good working relationships with all of their respective material
customers, distributors, value-added resellers, dealers and suppliers. Since
September 30, 2003, neither Belden nor any of its Subsidiaries has materially
altered the conduct of its relations with value-added resellers, distributors or
suppliers, including without limitation, sales terms and conditions, except in
the ordinary course of business consistent with past practice. Section 4.23 of
the ▇▇▇▇▇▇ Disclosure Schedule sets forth a list of all material manufacturer
representative, consulting and supplier relationships where the termination by
▇▇▇▇▇▇ or its Subsidiaries would result in material payments or costs.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.1 Conduct of Business.
(a) Ordinary Course. Except as otherwise expressly required by, or
provided for, in this Agreement, or as consented to by the other party in
writing, during the period from the date of this Agreement to the Effective
Time, each of CDT and ▇▇▇▇▇▇ shall, and shall cause each of their respective
Subsidiaries to, carry on its business in the ordinary course of such party
43
consistent with past practice, maintain its existence in good standing under
Applicable Law and use all commercially reasonable efforts to (i) preserve
intact its current business organization, (ii) keep available the services of
its current officers and key employees and (iii) preserve its relationships with
its customers, suppliers and other persons with which it has significant
business relations.
(b) Required Consent. Without limiting the generality of Section
5.1(a), except as otherwise expressly required by, or provided for in, this
Agreement, or as set forth in Section 5.1(b) of the CDT Disclosure Schedule or
Section 5.1(b) of the Belden Disclosure Schedule (as the case may be), without
the prior consent of the other party hereto, during the period from the date of
this Agreement to the Effective Time, neither CDT nor Belden shall do any of the
following, and shall not permit any of their respective Subsidiaries to do any
of the following:
(i) other than dividends and distributions (x) by a direct or
indirect wholly owned Subsidiary of a party hereto to its parent, (y)
by a Subsidiary of a party hereto that is partially owned by such party
or any of its Subsidiaries, provided that such party or such Subsidiary
receives or is to receive its proportionate share thereof, or (z) in
the case of ▇▇▇▇▇▇, its regular quarterly cash dividends at a rate not
in excess of $.05 per share of ▇▇▇▇▇▇ Common Stock (each, a "▇▇▇▇▇▇
Dividend"), (A) declare, set aside or pay any dividends on, make any
other distributions in respect of, or enter into any agreement with
respect to the voting of, any of its or any of its Subsidiary's capital
stock, (B) other than the Reverse Stock Split, split, combine or
reclassify any of its or any of its Subsidiary's 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 or any of its
Subsidiary's capital stock, or (C) purchase, redeem or otherwise
acquire any shares of its or any of its Subsidiary's capital stock or
any other securities thereof or any rights, warrants or options to
acquire any such shares or other securities (except, in the case of
clause (C), for (1) the deemed acceptance of shares upon cashless
exercise of ▇▇▇▇▇▇ Options or CDT Options outstanding on the date of
this Agreement, or (2) the repurchase of shares of capital stock from
former employees, directors and consultants in accordance with
agreements providing for the repurchase of shares upon any termination
of service), notice of which will be delivered to the other party;
(ii) issue, sell, deliver, pledge, or otherwise encumber or
subject to any Lien, any shares of its or any of its Subsidiary's
capital stock, any other voting securities or any securities
convertible into, or exchangeable for, or any rights, warrants or
options to acquire, any such shares, voting securities or convertible
or exchangeable securities, other than (A) the issuance of ▇▇▇▇▇▇
Common Stock upon the exercise or conversion of ▇▇▇▇▇▇ Options or CDT
Common Stock upon the exercise or conversion of CDT Options, as the
case may be, in each case outstanding as of the date of this Agreement
in accordance with their present terms, (B) the issuance by a
wholly-owned subsidiary of CDT or ▇▇▇▇▇▇, as applicable, of capital
stock to such Subsidiary's parent company; (C) the issuance of shares
of ▇▇▇▇▇▇ Common Stock to participants in the ▇▇▇▇▇▇ Purchase Plans or
issuance of shares of CDT Common Stock to participants in the CDT
Purchase Plan, in each case in the ordinary course of business
consistent with past practice, and (D) the issuance of CDT Common Stock
upon conversion of the CDT Debentures;
44
(iii) amend any ▇▇▇▇▇▇ Organizational Document, ▇▇▇▇▇▇
Subsidiary Organizational Document, CDT Organizational Document or CDT
Subsidiary Organizational Document;
(iv) acquire or agree to acquire, by merging or consolidating
with, or by purchasing any equity interest in or a portion of the
assets of, or by any other manner, any Person or any business or
division thereof, or otherwise acquire or agree to acquire any assets
which are material individually or in the aggregate to its and its
Subsidiaries' business, taken as a whole, other than pursuant to any
acquisition transaction (or series of acquisition transactions), (A)
which is in the existing line of business of such party or any of its
Subsidiaries, (B) in which the fair market value of the total
consideration (including the value of indebtedness or other obligations
assumed or acquired in connection with such transaction(s)) issued by
such party or their respective Subsidiaries in exchange therefor, does
not, when taken together with the fair market value of such total
consideration issued by such party in previously committed or
consummated transactions pursuant to this Section 5.1(b)(iv), exceed
twenty-five million dollars ($25,000,000) in the aggregate, (C) which
does not present a material risk of delaying the Merger or making it
more difficult to obtain any required consents or approvals therefor,
and (D) which does not require approval of such party's stockholders;
(v) sell, pledge, dispose of, transfer, lease, license or
otherwise encumber, or authorize the sale, pledge, disposition,
transfer, lease, license or other encumbrance of, any of its or any of
its Subsidiary's property or assets, except (A) sales, pledges,
dispositions, transfers, leases, licenses or encumbrances of such
property or assets in the ordinary course of business of such party
consistent with past practice but not to exceed an aggregate value of
twenty-five million dollars ($25,000,000) for all sales, pledges,
dispositions, transfers, leases, licenses or encumbrances made by such
party or their respective Subsidiaries in reliance upon this clause
(A), or (B) sales or dispositions of inventory in the ordinary course
of business of such party consistent with past practice;
(vi) make any loans, advances or capital contributions to, or
investments in, any other Person, other than: (A) in connection with
any transaction permitted pursuant to Section 5.1(b)(iv) above, (B)
loans or advances by it or any of its wholly owned Subsidiaries to it
or any of its wholly owned Subsidiaries, (C) investments or capital
contributions in any of its wholly owned Subsidiaries, (D) employee
advances made in compliance with Applicable Laws and in the ordinary
course of business of such party consistent with past practice
(provided that, in the case of this clause (D), the aggregate amount of
all such advances made by such party or their respective Subsidiaries
in reliance upon this clause (D), is not more than one million dollars
($1,000,000)), (E) as required by binding Contracts in effect as of the
date hereof, all of which Contracts are listed on Section 5.1(b)(vi) of
the CDT Disclosure Schedule or ▇▇▇▇▇▇ Disclosure Schedule, as
applicable, (F) highly liquid investments with an original maturity of
three months or less at the date of purchase, made in the ordinary
course of business consistent with past practice, or (G) in the
ordinary course of business of such party consistent with past practice
(provided that, in the case of this clause (G), the aggregate amount of
all such loans, advances, capital contributions and investments made by
such party or their respective Subsidiaries in reliance upon this
clause (G), is not more than ten million
45
dollars ($10,000,000), and the transactions do not present a material
risk of delaying the Merger or making it more difficult to obtain any
required consents or approvals therefor, or require approval of such
party's stockholders);
(vii) incur any indebtedness for borrowed money or issue any
debt securities or assume, guarantee or endorse, or otherwise as an
accommodation become responsible for the obligations of any Person for
borrowed money, other than in the ordinary course of business of such
party consistent with past practice, provided the aggregate amount of
all such newly incurred indebtedness for borrowed money, debt
securities and obligations outstanding at any time by such party and
its Subsidiaries is not more than twenty-five million dollars
($25,000,000);
(viii) pay, discharge, settle or satisfy any claim, liability,
obligation or litigation (absolute, accrued, asserted or unasserted,
contingent or otherwise) requiring payment by such party or their
respective Subsidiaries in excess of five million dollars ($5,000,000)
in the aggregate (excluding attorneys' fees and expenses), other than
the payment, discharge, settlement or satisfaction in the ordinary
course of business of such party consistent with past practice or in
accordance with their terms, of liabilities disclosed, reflected or
reserved against in the CDT Balance Sheet or ▇▇▇▇▇▇ Balance Sheet, as
applicable, or incurred since the date of such financial statements in
the ordinary course of business of such party consistent with past
practice;
(ix) make any material Tax election, take any material
position with respect to Taxes that is inconsistent with a position
taken in a prior period, adopt or change any material accounting method
in respect of Taxes, enter into any closing agreement or settle or
compromise any income tax liability;
(x) except as required by binding Contracts in effect as of
the date hereof, all of which are listed on Section 5.1(b)(x) of the
CDT Disclosure Schedule or Section 5.1(b)(x) of the ▇▇▇▇▇▇ Disclosure
Schedule, as applicable (the "Existing Benefits Commitments"), or as
otherwise provided for in Section 5.1(b)(x) of the CDT Disclosure
Schedule or Section 5.1(b)(x) of the ▇▇▇▇▇▇ Disclosure Schedule, as
applicable, (A) increase in any manner the compensation (including
bonus and incentive compensation) or fringe benefits of any of its
officers or directors, or materially increase any of the foregoing in
respect of other employees, except in each case as contemplated by
Section 5.1(b)(xi) or by Section 6.5(b), or (B) enter into any
collective bargaining agreement or any commitment to pay any pension,
retirement or severance benefit to any such officers or directors or
make any material commitment to pay any of the foregoing to any other
employees;
(xi) except as set forth on Section 5.1(b)(xi) of the CDT
Disclosure Schedule or Section 5.1(b)(xi) of the Belden Disclosure
Schedule, commit itself to, or enter into, any employment agreement
involving compensation in excess of one hundred fifty thousand dollars
($150,000) per year, adopt or commit itself to any material new
benefit, base salary or stock option plan or arrangement, or amend,
supplement, or, except as required by the Existing Benefits
Commitments, accelerate the timing of payments or vesting
46
under, or otherwise materially amend or supplement, any existing
benefit, stock option or compensation plan or arrangement (other than
as may be required by Applicable Laws);
(xii) change in any material respect any of their respective
methods or principles of accounting unless required by GAAP or any
applicable laws, as concurred in by its independent auditors;
(xiii) enter into, modify or amend in any material respect, or
terminate, or waive, release or assign any material benefit or claim
under, any Contract, joint venture, strategic partnership, alliance,
license or sublicense, except with respect to (A) Contracts for the
purchase of raw materials or sale of products, in each case in the
ordinary course of business of such party consistent with past practice
or (B) joint ventures, collaborations, strategic partnerships,
alliances, licenses or sublicenses, which (1) do not involve payments
by such party or their respective Subsidiaries of more than five
million dollars ($5,000,000) or adversely alter any existing financial
terms, (2) do not materially impair the conduct of the business of such
party and its Subsidiaries, taken as a whole, (3) do not present a
material risk of delaying the Merger or making it more difficult to
obtain any required consents or approvals therefor, and (4) do not
require approval of such party's stockholders;
(xiv) enter into any material new line of business;
(xv) subject such party or any of its Subsidiaries to any
material non-compete or other similar material restriction on the
conduct of any of their respective businesses that would be binding
following the Closing;
(xvi) except as set forth in Section 5.1(b)(xvi) of the CDT
Disclosure Schedule or Section 5.1(b)(xvi) of the Belden Disclosure
Schedule, make or agree to make any new capital expenditure or
expenditures, or enter into any agreement or agreements providing for
payments by such party or their respective Subsidiaries for capital
expenditures which, in the aggregate, are in excess of ten million
dollars ($10,000,000); or
(xvii) authorize, or commit or agree to take, any of the
foregoing actions.
(c) Other Actions. Except as required by law or as expressly permitted
by Section 5.2, Belden, CDT and Merger Sub shall not, and shall not permit any
of their respective Subsidiaries to, voluntarily take any action that would, or
that would reasonably be likely to, result in (i) any of the representations and
warranties of such party set forth in this Agreement that are qualified as to
"materiality" or "Material Adverse Effect" becoming untrue as of the Closing
(for this purpose, without giving effect to any limitation as to any such
representation or warranty being made as of the date of this Agreement), (ii)
any of such representations and warranties that are not so qualified becoming
untrue in any material respect as of the Closing (for this purpose, without
giving effect to any limitation as to any such representation or warranty being
made as of the date of this Agreement), or (iii) any of the conditions to the
Merger set forth in Article VII not being satisfied.
47
SECTION 5.2 No Solicitation.
(a) Neither CDT nor Belden shall, nor permit any of its Subsidiaries
to, nor authorize or permit any of its officers, directors or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by it or any of its Subsidiaries to, directly, or
indirectly, (i) solicit, initiate or encourage (including by way of furnishing
any information), or take any other action to, or which would reasonably be
likely to, facilitate, induce or encourage, any inquiries with respect to, or
the making, submission or announcement of, any Alternative Transaction Proposal
(as defined in Section 9.3(c)), (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information with respect
to, any, or any possible, Alternative Transaction Proposal (except (A) to
disclose the existence of the provisions of this Section 5.2, or (B) to the
extent specifically permitted pursuant to Section 5.2(c)), (iii) approve,
endorse or recommend any Alternative Transaction (except to the extent
specifically permitted pursuant to Section 5.2(d)), or (iv) enter into any
letter of intent or similar document or any contract, agreement or commitment
contemplating or otherwise relating to any possible or proposed Alternative
Transaction Proposal. Each of CDT and ▇▇▇▇▇▇ and each of their respective
Subsidiaries will immediately cease, and will cause its officers, directors and
employees and any investment banker, financial adviser, attorney, accountant or
other representative retained by it to cease, any and all existing activities,
discussions or negotiations with any third parties conducted heretofore with
respect to any possible or proposed Alternative Transaction, and will use its
reasonable best efforts to enforce (and not waive any provisions of) any
confidentiality and standstill agreement (or any similar agreement) relating to
any such possible or proposed Alternative Transaction.
(b) Notification of Alternative Transactions. As promptly as
practicable (and in any event within twenty-four (24) hours) after receipt of
any Alternative Transaction Proposal or any request for nonpublic information or
any inquiry relating to any Alternative Transaction Proposal, CDT or Belden, as
the case may be, shall provide the other party with oral and written notice of
the material terms and conditions of such Alternative Transaction Proposal,
request or inquiry, and the identity of the Person or group making any such
Alternative Transaction Proposal, request or inquiry. In addition, CDT or
▇▇▇▇▇▇, as the case may be, shall provide the other party as promptly as
practicable with oral and written notice setting forth all such information as
is reasonably necessary to keep the other party informed in all material
respects of all material developments regarding the status and terms (including
material amendments or proposed material amendments) of, any such Alternative
Transaction Proposal, request or inquiry, and, without limitation of the other
provisions of this Section 5.2, shall promptly provide to the other party a copy
of all written materials (including written materials provided by email or
otherwise in electronic format) subsequently provided by or to it in connection
with such Alternative Transaction Proposal, request or inquiry. CDT or ▇▇▇▇▇▇,
as the case may be, shall provide the other party with forty-eight (48) hours'
prior notice (or such lesser prior notice as is provided to the members of its
Board of Directors) of any meeting of its Board of Directors at which its Board
of Directors is reasonably likely to consider any Alternative Transaction
Proposal or Alternative Transaction.
(c) Superior Proposals. Notwithstanding anything to the contrary
contained in Section 5.2(a), in the event that CDT or ▇▇▇▇▇▇, as the case may
be, receives an unsolicited, bona fide Alternative Transaction Proposal which is
determined (in accordance with Section 9.3(p)) to
48
be, or to be reasonably likely to lead to, a Superior Proposal (as defined in
Section 9.3(p)), it may then take the following actions (but only (1) if and to
the extent that (x) its Board of Directors concludes in good faith, after
receipt of advice of its outside legal counsel, that the failure to do so could
reasonably result in a breach of its fiduciary obligations to its stockholders
under Applicable Law, and (y) CDT or Belden, as the case may be, has given the
other party at least three (3) business days' prior written notice of its
intention to take any of the following actions and of the identity of the Person
or group making such Superior Proposal and the material terms and conditions of
such Superior Proposal and (2) if it shall not have breached in any material
respect any of the provisions of this Section 5.2):
(i) Furnish nonpublic information to the Person or group
making such Superior Proposal, provided that (A) prior to furnishing
any such nonpublic information, it receives from such Person or group
an executed confidentiality containing terms at least as restrictive as
the terms contained in the Confidentiality Agreement, dated as of
October 28, 2003, between ▇▇▇▇▇▇ and CDT (the "CDA") and (B)
contemporaneously with furnishing any such nonpublic information to
such Person or group, it furnishes such nonpublic information to the
other party hereto (to the extent such nonpublic information has not
been previously so furnished to such party); and
(ii) Engage in negotiations with such Person or group with
respect to such Superior Proposal.
(d) Changes of Recommendation.
(i) In response to the receipt of an unsolicited, bona fide
Alternative Transaction Proposal which is determined (in accordance
with Section 9.3(p)) to be a Superior Proposal, the Board of Directors
of CDT or ▇▇▇▇▇▇, as the case may be, may withhold, withdraw, amend or
modify its recommendation in favor of, in the case of ▇▇▇▇▇▇, approval
and adoption of this Agreement and the Merger and, in the case of CDT,
the CDT Charter Amendment and the CDT Share Issuance, and, in the case
of a Superior Proposal that is a tender or exchange offer made directly
to its stockholders, may recommend that its stockholders accept the
tender or exchange offer (any of the foregoing actions, whether by a
Board of Directors or a committee thereof, a "Change of
Recommendation"), if all of the following conditions in clauses (1)
through (5) are met:
(1) the Superior Proposal has been made and has not
been withdrawn and continues to be a Superior Proposal;
(2) the CDT Stockholders' Meeting or ▇▇▇▇▇▇
Stockholders' Meeting, as the case may be, has not occurred;
(3) CDT or ▇▇▇▇▇▇, as the case may be, has (A)
provided to the other party hereto five (5) business days'
prior written notice which shall state expressly (x) that it
has received a Superior Proposal, (y) the material terms and
conditions of the Superior Proposal and the identity of the
Person or group making the Superior Proposal, and (z) that it
intends to effect a Change of Recommendation and the manner in
which it intends to do so, (B) made available to the other
party
49
hereto all materials and information made available to the
Person or group making the Superior Proposal in connection
with such Superior Proposal, and (C) during such five (5)
business day period, if requested by the other party hereto,
engaged in good faith negotiations to amend this Agreement in
such a manner that the Alternative Transaction Proposal which
was determined to be a Superior Proposal no longer is a
Superior Proposal;
(4) The Board of Directors of CDT or ▇▇▇▇▇▇, as the
case may be, has concluded in good faith, after receipt of
advice of its outside legal counsel, that, in light of such
Superior Proposal, the failure of the Board of Directors to
effect a Change of Recommendation is reasonably likely to
result in a breach of its fiduciary obligations to its
stockholders under Applicable Law; and
(5) The party whose Board of Directors is making the
Change of Recommendation shall have complied with Section
5.2(c) and shall not have breached in any material respect any
of the other provisions set forth in this Section 5.2 or in
Sections 6.1(b) through 6.1(d).
(ii) Without limiting the foregoing, (1) the Board of
Directors of CDT may effect a Change of Recommendation (but only
insofar as the same involves withholding, withdrawing, amending or
modifying its recommendation in favor of the CDT Charter Amendment or
the CDT Share Issuance), (x) if there shall have occurred and be
continuing a Material Adverse Change of Belden since the date of this
Agreement and (y) CDT shall not have breached in any material respect
any of the provisions set forth in this Section 5.2 or Section 6.1; and
(2) the Board of Directors of ▇▇▇▇▇▇ may effect a Change of
Recommendation (but only insofar as the same involves withholding,
withdrawing, amending or modifying its recommendation in favor of the
Merger), (x) if there shall have occurred and be continuing a Material
Adverse Change of CDT since the date of this Agreement and (y) Belden
shall not have breached in any material respect any of the provisions
set forth in this Section 5.2 or Section 6.1.
(e) Continuing Obligation to Hold Stockholders' Meeting; No Other Vote.
Notwithstanding anything to the contrary contained in this Agreement, the
obligation of CDT or Belden to call, give notice of, convene and hold the CDT
Stockholders' Meeting or the Belden Stockholders' Meeting, as the case may be,
shall not be limited or otherwise affected by the commencement, disclosure,
announcement or submission to it of any Alternative Transaction Proposal with
respect to it, or by any Change of Recommendation. At any such meeting, neither
CDT nor Belden shall submit to the vote of its respective stockholders any
Alternative Transaction, whether or not a Superior Proposal has been received by
it, or propose to do so.
(f) Compliance with Tender Offer Rules. Nothing contained in this
Agreement shall prohibit CDT or Belden or their respective Boards of Directors
from taking and disclosing to their stockholders a position contemplated by
Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; provided that
neither CDT nor Belden shall effect, or disclose pursuant to such Rules or
otherwise a position which constitutes, a Change of Recommendation unless
specifically permitted pursuant to the terms of Section 5.2(d).
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ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Preparation of SEC Documents; Stockholders' Meetings.
(a) As soon as practicable following the date of this Agreement, ▇▇▇▇▇▇
and CDT shall agree upon the terms of, prepare and file with the SEC the Joint
Proxy Statement, and CDT shall prepare and file with the SEC the Form S-4, in
which the Joint Proxy Statement will be included as a prospectus. Each of ▇▇▇▇▇▇
and CDT shall use commercially reasonable efforts to have the Form S-4 declared
effective under the Securities Act as promptly as practicable after such filing.
▇▇▇▇▇▇ will use commercially reasonable efforts to cause the Joint Proxy
Statement, a copy of ▇▇▇▇▇▇'▇ annual report on Form 10-K for the year ended
December 31, 2003 and a copy of CDT's annual report on Form 10-K for the year
ended July 31, 2003 to be mailed to ▇▇▇▇▇▇'▇ stockholders, and CDT will use
commercially reasonable efforts to cause the Joint Proxy Statement, a copy of
▇▇▇▇▇▇'▇ annual report on Form 10-K for the year ended December 31, 2003 and a
copy of CDT's annual report on Form 10-K for the year ended July 31, 2003 to be
mailed to CDT's stockholders, in each case as promptly as practicable after the
Form S-4 is declared effective under the Securities Act. CDT shall also take any
action (other than qualifying to do business in any jurisdiction in which it is
not now so qualified or to file a general consent to service of process)
reasonably required to be taken under any applicable state securities laws in
connection with the issuance of shares of CDT Common Stock in the Merger and,
subject to the satisfaction of the condition set forth in Section 7.2(e), the
conversion of ▇▇▇▇▇▇ Options into options to acquire CDT Common Stock, and
Belden shall furnish all information concerning Belden and the holders of ▇▇▇▇▇▇
Common Stock as may be reasonably requested in connection with any such action.
Each party shall cooperate and provide the other party with a reasonable
opportunity to review and comment on any amendment or supplement to the Form S-4
or the Joint Proxy Statement or any filing with the SEC incorporated by
reference in the Form S-4 or the Joint Proxy Statement, in each case prior to
filing such with the SEC, and each party shall provide the other party with a
copy of all such filings made with the SEC; provided, however, that each party
shall be deemed to have consented to the inclusion in the Form S-4, the Joint
Proxy Statement or any filing with the SEC incorporated by reference in the Form
S-4 or the Joint Proxy Statement of any information, language or content
specifically agreed to by such party or its counsel on or prior to the date
hereof for inclusion therein. CDT will advise ▇▇▇▇▇▇ promptly after it receives
notice of (i) the time when the Form S-4 has become effective or any supplement
or amendment has been filed, (ii) the issuance of any stop order, (iii) the
suspension of the qualification of the CDT Common Stock issuable in connection
with the Merger for offering or sale in any jurisdiction, or (iv) any request by
the SEC for amendment of the Joint Proxy Statement or the Form S-4 or comments
thereon and responses thereto or requests by the SEC for additional information.
If at any time prior to the Effective Time any information (including any Change
of Recommendation) relating to ▇▇▇▇▇▇ or CDT, or any of their respective
Affiliates, officers or directors, should be discovered by Belden or CDT which
should be set forth in an amendment or supplement to any of the Form S-4 or the
Joint Proxy Statement, so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, the party which discovers such information shall promptly
notify the other parties hereto and an appropriate amendment or
51
supplement describing such information shall promptly be filed with the SEC and,
to the extent required by law, disseminated to the stockholders of ▇▇▇▇▇▇ and
CDT.
(b) Each of CDT and ▇▇▇▇▇▇ shall, as promptly as practicable after the
Form S-4 is declared effective under the Securities Act, take all action
necessary in accordance with Applicable Law and the CDT Organizational
Documents, in the case of CDT, and the ▇▇▇▇▇▇ Organizational Documents, in the
case of ▇▇▇▇▇▇, to duly give notice of, convene and hold a meeting of its
stockholders to be held as promptly as practicable to consider, in the case of
▇▇▇▇▇▇, the adoption and approval of this Agreement and the Merger and the
election of directors (the "Belden Stockholders' Meeting"), and, in the case of
CDT, the CDT Share Issuance and the CDT Charter Amendment (the "CDT
Stockholders' Meeting"). Subject to Section 5.2(d), each of CDT and ▇▇▇▇▇▇ will
use commercially reasonable efforts to solicit from its stockholders proxies in
favor of, in the case of ▇▇▇▇▇▇, the adoption and approval of this Agreement and
the Merger and, in the case of CDT, the CDT Share Issuance and the CDT Charter
Amendment, and will take all other action reasonably necessary or advisable to
secure the vote or consent of its stockholders required by the rules of the NYSE
or Applicable Law to obtain such approvals. Notwithstanding anything to the
contrary contained in this Agreement, CDT or ▇▇▇▇▇▇ may adjourn or postpone the
CDT Stockholders' Meeting or ▇▇▇▇▇▇ Stockholders' Meeting, as the case may be,
to the extent necessary to ensure that any necessary supplement or amendment to
the Joint Proxy Statement is provided to its respective stockholders in advance
of a vote on, in the case of ▇▇▇▇▇▇, the adoption and approval of this Agreement
and the Merger and, in the case of CDT, the CDT Share Issuance and the CDT
Charter Amendment, or, if, as of the time for which the CDT Stockholders'
Meeting or Belden Stockholders' Meeting, as the case may be, is originally
scheduled, there are insufficient shares of CDT Common Stock or ▇▇▇▇▇▇ Common
Stock, as the case may be, represented (either in person or by proxy) to
constitute a quorum necessary to conduct the business of such meeting. Each of
CDT and ▇▇▇▇▇▇ shall ensure that the CDT Stockholders' Meeting and the ▇▇▇▇▇▇
Stockholders' Meeting, respectively, is called, noticed, convened, held and
conducted, and that all proxies solicited in connection with the CDT
Stockholders' Meeting or ▇▇▇▇▇▇ Stockholders' Meeting, as the case may be, are
solicited in compliance with Applicable Law, the rules of the NYSE and, in the
case of CDT, the CDT Organizational Documents, and, in the case of ▇▇▇▇▇▇, the
▇▇▇▇▇▇ Organizational Documents. Without the prior written consent of ▇▇▇▇▇▇,
the CDT Charter Amendment and the CDT Share Issuance are the only matters which
CDT shall propose to be acted on by CDT's stockholders at the CDT Stockholders'
Meeting. Without the prior written consent of CDT, the approval and adoption of
this Agreement and the Merger and the election of directors are the only matters
which Belden shall propose to be acted on by ▇▇▇▇▇▇'▇ stockholders at the ▇▇▇▇▇▇
Stockholders' Meeting.
(c) Each of CDT and ▇▇▇▇▇▇ will use commercially reasonable efforts to
hold the CDT Stockholders' Meeting and ▇▇▇▇▇▇ Stockholders' Meeting,
respectively, on the same date as the other party and as soon as reasonably
practicable after the date of this Agreement.
(d) Except to the extent expressly permitted by Section 5.2(d): (i) the
Board of Directors of each of Belden and CDT shall recommend that its
stockholders vote in favor of, in the case of ▇▇▇▇▇▇, the approval and adoption
of this Agreement and the Merger at the ▇▇▇▇▇▇ Stockholders' Meeting, and, in
the case of CDT, the CDT Share Issuance and the CDT Charter Amendment at the CDT
Stockholders' Meeting, (ii) the Joint Proxy Statement shall include a
52
statement to the effect that the Board of Directors of (A) CDT has recommended
that CDT's stockholders vote in favor of the CDT Share Issuance and the CDT
Charter Amendment at the CDT Stockholders' Meeting and (B) ▇▇▇▇▇▇ has
recommended that ▇▇▇▇▇▇'▇ stockholders vote in favor of approval and adoption of
this Agreement and the Merger at the ▇▇▇▇▇▇ Stockholders' Meeting, and (iii)
neither the Board of Directors of CDT or Belden nor any committee thereof shall
withdraw, amend or modify, or propose or resolve to withdraw, amend or modify in
a manner adverse to the other party, the recommendation of its respective Board
of Directors that the respective stockholders of CDT or ▇▇▇▇▇▇ vote in favor of,
in the case of ▇▇▇▇▇▇, the approval and adoption of this Agreement and the
Merger, and, in the case of CDT, the CDT Share Issuance and the CDT Charter
Amendment.
SECTION 6.2 Accountant's Letters. Each of CDT and ▇▇▇▇▇▇ shall use
commercially reasonable efforts to cause to be delivered to the other party on
or prior to the dates thereof two (2) letters from their respective independent
accountants, one dated approximately as of the date the Form S-4 is declared
effective and one dated approximately as of the Closing Date, each addressed to
the other party, in form and substance reasonably satisfactory to the other
party and customary in scope and substance for comfort letters delivered by
independent public accountants in connection with registration statements
similar to the Form S-4.
SECTION 6.3 Access to Information; Confidentiality.
(a) Subject to the CDA and Applicable Law, each of ▇▇▇▇▇▇ and CDT
shall, and shall cause each of its respective Subsidiaries to, afford to the
other party and to the officers, employees, accountants, counsel, financial
advisors and other representatives of such other party, reasonable access during
normal business hours during the period prior to the Effective Time to all their
respective properties, books, contracts, commitments, personnel and records
(provided that such access shall not interfere with the business or operations
of such party) and, during such period, each of ▇▇▇▇▇▇ and CDT shall, and shall
cause each of its respective Subsidiaries to, furnish promptly to the other
party (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 and (b) all other information concerning its business,
properties and personnel as such other party may reasonably request. No review
pursuant to this Section 6.3 shall affect or be deemed to modify any
representation or warranty contained herein, the covenants or agreements of the
parties hereto or the conditions to the obligations of the parties hereto under
this Agreement.
(b) Each of ▇▇▇▇▇▇ and CDT will hold, and will cause its respective
officers, employees, accountants, counsel, financial advisors and other
representatives and Affiliates to hold, any nonpublic information in accordance
with the terms of the CDA.
SECTION 6.4 Commercially Reasonable Efforts.
(a) 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
53
Agreement, including (i) the obtaining of all necessary actions or nonactions,
waivers, consents, clearances and approvals from Governmental Entities and the
making of all necessary registrations and filings and the taking of all steps as
may be necessary to obtain an approval, clearance or waiver from, or to avoid an
action or proceeding by, any Governmental Entity, including all filings required
by the HSR Act (the initial filing required by the HSR Act to be filed as soon
as reasonably practicable following the execution of this Agreement) and any
applicable antitrust, competition or similar laws of any foreign jurisdiction,
(ii) the obtaining of all necessary consents, approvals or waivers from third
parties, (iii) the defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the consummation of
the transactions contemplated by this Agreement, including seeking to have any
stay or temporary restraining order entered by any court or other Governmental
Entity vacated or reversed, and (iv) the execution and delivery of any
additional instruments necessary to consummate the transactions contemplated by,
and to fully carry out the purposes of, this Agreement. Subject to Applicable
Laws relating to the exchange of information and in addition to Section 6.4(b),
CDT and ▇▇▇▇▇▇, or their respective counsel, shall have the right to review in
advance, and to the extent practicable each will consult the other on, all the
information relating to CDT and its Subsidiaries or ▇▇▇▇▇▇ and its Subsidiaries,
as the case may be, that appears in any filing made with, or written materials
submitted to, any third party or any Governmental Entity in connection with the
Merger and the other transactions contemplated by this Agreement.
(b) Each of ▇▇▇▇▇▇ and CDT shall keep the other reasonably apprised of
the status of matters relating to the completion of the transactions
contemplated hereby and work cooperatively in connection with obtaining all
required approvals, consents or clearances of any Governmental Entity (whether
domestic, foreign or supranational). In that regard, each party shall without
limitation: (i) promptly notify the other of, and if in writing, furnish the
other with copies of (or, in the case of material oral communications, advise
the other orally of) any communications from or with any Governmental Entity
(whether domestic, foreign or supranational) with respect to the Merger or any
of the other transactions contemplated by this Agreement, (ii) permit the other
to review and discuss in advance, and consider in good faith the views of the
other in connection with, any proposed written (or any material proposed oral)
communication with any such Governmental Entity, (iii) not participate in any
meeting with any such Governmental Entity unless it consults with the other in
advance and to the extent permitted by such Governmental Entity gives the other
the opportunity to attend and participate thereat, (iv) furnish the other with
copies of all correspondence, filings and communications (and memoranda setting
forth the substance thereof) between it and any such Governmental Entity with
respect to this Agreement and the Merger, and (v) furnish the other with such
necessary information and reasonable assistance as Belden or CDT may reasonably
request in connection with its preparation of necessary filings or submissions
of information to any such Governmental Entity. Each of Belden and CDT may, as
each deems advisable and necessary, reasonably designate any competitively
sensitive material provided to the other under this Section 6.4 as "outside
counsel only." Such material and the information contained therein shall be
given only to the outside legal counsel of the recipient and will not be
disclosed by such outside counsel to employees, officers, or directors of the
recipient unless express permission is obtained in advance from the source of
the materials (Belden or CDT, as the case may be) or its legal counsel.
54
(c) In connection with and without limiting the foregoing, Belden and
CDT shall (i) take all action necessary to ensure that no state takeover statute
or similar statute or regulation is or becomes applicable to this Agreement or
any of the transactions contemplated hereby and (ii) if any state takeover
statute or similar statute or regulation becomes applicable to this Agreement or
any of the transactions contemplated hereby, take all action necessary to ensure
that such transactions may be consummated as promptly as practicable on the
terms required by, or provided for, in this Agreement and otherwise to minimize
the effect of such statute or regulation on the Merger and the other
transactions contemplated by this Agreement.
SECTION 6.5 Indemnification and Insurance.
(a) At the Effective Time, the certificate of incorporation and by-laws
of CDT will contain provisions with respect to exculpation and indemnification
that are at least as favorable to the officers and directors of CDT (the
"Indemnified Parties") as those contained in the CDT Charter and the CDT By-laws
as in effect on the date hereof, which provisions will not be amended, repealed
or otherwise modified for a period of six years from the Effective Time in any
manner that would adversely affect the rights thereunder of individuals who,
immediately prior to the Effective Time, were directors, officers, employees or
agents of CDT, unless such modification is required by law.
(b) Prior to the Effective Time, CDT shall purchase a directors' and
officers' and fiduciary liability insurance policy providing coverage for a
period of at least six (6) years following the Effective Time (i) for persons
who were officers and/or directors of Belden prior to the Effective Time and
(ii) for persons who were officers and/or directors of CDT prior to the
Effective Time and who are not officers or directors of CDT immediately
following the Effective Time, in each case for claims arising after the
Effective Time from facts or events which occurred at or prior to the Effective
Time, which policy shall provide for at least $30 million of aggregate coverage
on terms and conditions which are no less advantageous to such covered persons
than the directors' and officers' and fiduciary liability insurance policy CDT
maintained on the date hereof. Upon the expiration of the directors' and
officers' and fiduciary liability insurance policy maintained by CDT on the date
hereof, CDT shall renew such policy or enter into a replacement policy, which,
in either case, shall provide for at least $30 million of aggregate coverage on
terms and conditions of coverage which are no less advantageous than those
provided in the policy maintained by CDT as of the date hereof.
(c) In the event that CDT 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 assets to
any Person, then, and in each such case, proper provision will be made so that
the successors and assigns of CDT assume the obligations set forth in this
Section 6.5.
(d) The provisions of this Section 6.5 are intended for the benefit of,
and will be enforceable by, each Indemnified Party and his or her heirs and
representatives, and are in addition to, and not in substitution for, any other
rights to indemnification or contribution that any such Indemnified Party may
have had by contract or otherwise.
55
SECTION 6.6 Fees and Expenses. Except as set forth in Section 8.3, all
fees and expenses incurred in connection with the Merger, this Agreement and the
transactions contemplated by this Agreement shall be paid by the party incurring
such fees or expenses, whether or not the Merger is consummated, provided that
Belden shall pay any foreign, state or local real estate transfer or similar
taxes imposed on the stockholders of Belden as a result of the transactions
contemplated in this Agreement.
SECTION 6.7 Public Announcements. CDT and Belden will consult with each
other before issuing, and will provide each other the opportunity to review,
comment upon and concur with, and use commercially reasonable efforts to agree
on, 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 either party may determine is required by Applicable
Law, court process or by obligations pursuant to any listing agreement with any
national securities exchange or stock market.
SECTION 6.8 Listing. CDT shall use all commercially reasonable efforts
to cause the CDT Common Stock issuable under Article II and those shares of CDT
Common Stock required to be reserved for issuance upon exercise of any Belden
Options assumed by CDT hereunder to be authorized for listing on the NYSE, upon
official notice of issuance.
SECTION 6.9 Tax-Free Reorganization Treatment. Belden and CDT intend
that the Merger will qualify as a reorganization within the meaning of Section
368(a) of the Code, and each shall, and shall cause its respective Subsidiaries
to, use its reasonable best efforts to cause the Merger to so qualify. Neither
Belden nor CDT shall knowingly take any action, cause any action to be taken,
fail to take any commercially reasonable action or cause any commercially
reasonable action to fail to be taken, which action or failure to act would
reasonably be expected to (i) prevent the Merger from qualifying as a
reorganization within the meaning of Section 368 of the Code or (ii) cause
Belden, Merger Sub or CDT to be unable to make the representations necessary for
counsel to render the tax opinions referred to in Section 7.1(g).
SECTION 6.10 Conveyance Taxes. CDT and Belden shall cooperate in the
preparation, execution and filing of all returns, questionnaires, applications
or other documents regarding any real property transfer or gains, sales, use,
transfer, value added, stock transfer and stamp taxes, any transfer, recording,
registration and other fees or any similar taxes which become payable in
connection with the transactions contemplated by this Agreement that are
required or permitted to be filed on or before the Effective Time.
SECTION 6.11 Equity Awards and Employee Benefits.
(a) At the Effective Time and subject to the satisfaction of the
condition set forth in Section 7.2(e), each then outstanding Belden Option,
whether or not exercisable at the Effective Time, will be assumed by CDT. Each
Belden Option so assumed by CDT under this Agreement will continue to have, and
be subject to, the same terms and conditions set forth in the applicable Belden
Option (including any Belden Stock Plan under which such Belden Option was
issued and any applicable stock option agreement or other document evidencing
such Belden Option) immediately prior to the Effective Time, except that (i)
each Belden Option will be exercisable
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for that number of whole shares of CDT Common Stock equal to the product of the
number of shares of Belden Common Stock that were issuable upon exercise of such
Belden Option immediately prior to the Effective Time multiplied by the Exchange
Ratio, rounded down to the nearest whole number of shares of CDT Common Stock,
(ii) the per share exercise price for the shares of CDT Common Stock issuable
upon exercise of such assumed Belden Option will be equal to the quotient
determined by dividing the exercise price per share of such Belden Option by the
Exchange Ratio, rounded up to the nearest whole cent and (iii) as of the
Effective Time or such earlier time as provided in any Belden Stock Plan as in
effect on the date hereof, all Belden Stock Options issued under a Belden Stock
Plan which are either outstanding as of the date hereof or issued as permitted
under this Agreement prior to the Effective Time shall vest in their entirety
and become exercisable under the terms of such Belden Stock Plan. As of the
Effective Time, all references in the Belden Stock Plans to Belden Common Stock
shall thereafter be deemed to be references to CDT Common Stock. As soon as
reasonably practicable following the Effective Time, CDT will issue to each
holder of an assumed Belden Option a document evidencing the foregoing
assumption of such Belden Option by CDT. As soon as reasonably practicable
following the Effective time, but in no event later than 10 days following the
Effective Time, CDT shall file a registration statement under the Securities Act
on Form S-8 or another appropriate form (and use its commercially reasonable
efforts to maintain the effectiveness thereof and maintain the current status of
the prospectuses contained therein) with respect to (i) Belden Options assumed
by CDT pursuant hereto and (ii) the shares of restricted CDT Common Stock
contemplated by Section 6.11(c) or as set forth in Section 5.1(b) of the CDT
Disclosure Schedule or Section 5.1(b) of the Belden Disclosure Schedule, shall
use its commercially reasonable efforts to cause such registration statement to
remain in effect for so long as such assumed Belden Option shall remain
outstanding and such shares of restricted stock shall remain issuable or
outstanding. Prior to the Effective Time, CDT shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of CDT Common
Stock for delivery in connection with the exercise of the converted Belden
Options. The parties shall use their commercially reasonable efforts to ensure
that the conversion of any Belden Options which are intended to be "incentive
stock options" (as defined in Section 422 of the Code) provided for in this
Section 6.11(a) shall be effected in a manner consistent with Section 424(a) of
the Code.
(b) Belden shall use reasonable best efforts to amend or supplement the
Belden Stock Plans, or seek waivers from any holder of outstanding Belden
Options, as necessary to provide that each Belden Option outstanding immediately
prior to the Effective Time shall be treated as set forth in Section 6.11(a).
(c) As of the Effective Time, any restrictions or limitations on
transfer with respect to shares of restricted Belden Common Stock issued under
the Belden Stock Plans shall terminate or lapse and shall not apply to any
shares of CDT Common Stock issued in exchange for such Belden Common Stock
hereunder, so that such shares of CDT Common Stock shall be freely transferable,
subject to applicable securities laws. In addition, Belden shall terminate the
Belden Purchase Plans immediately prior to the Effective Time. To the extent any
offering period under the Belden Purchase Plans is in progress prior to such
termination, Belden shall ensure that such offering period ends immediately
prior to such termination, and that each participant's accumulated contributions
(including all contributions made after the date hereof in accordance with the
terms of the Belden Purchase Plans) for such offering period are applied towards
the purchase of Belden Common Stock immediately prior to such termination unless
the participant
57
has previously withdrawn from such offering period in accordance with the terms
of such plan. Furthermore, as soon as reasonably practicable after the Effective
Time, all Continuing Employees (as defined in Section 6.11(f)) shall be
permitted to participate in the CDT Purchase Plan in accordance with the terms
of such plan.
(d) At the Effective Time, each then outstanding CDT Option will
continue to have, and be subject to, the terms and conditions thereof
immediately prior to the Effective Time, except that as of the Effective Time or
such earlier time as provided in any CDT Stock Plan as in effect on the date
hereof, all CDT Stock Options issued under a CDT Stock Plan which are either
outstanding as of the date hereof or issued as permitted under this Agreement
prior to the Effective Time shall vest in their entirety and become exercisable
under the terms of such CDT Stock Plan.
(e) As of the Effective Time, any restrictions or limitations on
transfer with respect to shares of restricted CDT Common Stock issued under the
CDT Stock Plans shall terminate or lapse, so that such shares of CDT Common
Stock shall be freely transferable, subject to applicable securities laws.
(f) For one year following the Effective Time, CDT shall provide or
cause to be provided to those of its employees and employees of the Surviving
Corporation or any other Affiliate of CDT who were employees of Belden or any of
its Subsidiaries immediately prior to the Effective Time ("Continuing
Employees"), employee welfare benefits that, in the aggregate, are no less
favorable than the employee welfare benefits package provided to those
Continuing Employees by Belden or any of its Subsidiaries immediately prior to
the execution of this Agreement.
(g) Following the Effective Time, CDT shall recognize (or cause to be
recognized) the service of each Continuing Employee with Belden or any of its
Subsidiaries for purposes of (i) eligibility and vesting under any CDT Benefit
Plan, (ii) determination of benefits levels under any vacation or severance CDT
Benefit Plan and (iii) determination of "retiree" status under any CDT Benefit
Plan, for which the Continuing Employee is otherwise eligible and in which the
Continuing Employee is offered participation, in each case except where such
crediting would result in a duplication of benefits. To the extent CDT
establishes or designates a CDT Benefit Plan to provide group health benefits to
Continuing Employees, (x) each such CDT Benefit Plan shall waive pre-existing
condition limitations with respect to Continuing Employees to the same extent
waived or no longer applicable under the applicable group health plan of Belden
and (y) each Continuing Employee shall be given credit under the applicable CDT
Benefit Plan for amounts paid under the corresponding group health plan of
Belden or an Affiliate during the plan year in which the Effective Time occurs
for purposes of applying deductibles, co-payments and out-of-pocket maximums for
such plan year.
(h) Subject to Section 6.11(i), as of the Effective Time, CDT shall
assume and agree to perform in accordance with their terms (i) all employment,
severance and other compensation agreements and arrangements existing as of the
date hereof (and provided to CDT by Belden prior to the date hereof) between
Belden or any of its Subsidiaries and any director, officer or employee thereof,
and (ii) any such agreements or arrangements entered into after the date hereof
58
and prior to the Effective Time by Belden or any of its Subsidiaries in
compliance with the terms of this Agreement.
(i) Belden shall use its reasonable best efforts to enter into and
obtain written waivers reasonably acceptable to CDT to the Change of Control
Employment Agreements by and between Belden and certain officers of Belden set
forth in Schedule 6.11(i) upon the terms set forth in Schedule 6.11(i) as soon
as reasonably practicable, but in no event later than the date upon which the
Form S-4 is first filed with the SEC. Belden shall promptly notify CDT of the
execution of any such waiver contemplated by Schedule 6.11(i) and shall provide
an executed copy thereof to CDT as soon as reasonably practicable thereafter. If
Belden shall be unable to obtain any of the written waivers contemplated by
Schedule 6.11(i) by the date upon which the Form S-4 is first filed with the
SEC, Belden shall promptly consult with CDT and the parties shall take all
reasonable actions to minimize the payments that may become payable under such
Change of Control Employment Agreements.
(j) The trust created by the Trust Agreement, dated January 1, 1998, by
and between Belden Wire & Cable Company and Bankers Trust Company, shall be
amended by the parties thereto in accordance with the terms thereof as soon as
reasonably practicable, but in no event later than the date upon which the Form
S-4 is first filed with the SEC, which amendment shall provide that neither this
Agreement nor any of the transactions contemplated hereby shall or shall be
deemed to give rise to or result in any obligations thereunder of any party
hereto or any of its respective Subsidiaries.
SECTION 6.12 Consents of Accountants. Belden and CDT will each use
commercially reasonable efforts to cause to be delivered to each other consents
from their respective independent auditors, dated the date on which the Form S-4
is filed with the SEC, is amended or supplemented, or becomes effective or a
date not more than two (2) days prior to such date, in form reasonably
satisfactory to the recipient and customary in scope and substance for consents
delivered by independent public accountants in connection with registration
statements on Form S-4 under the Securities Act.
SECTION 6.13 Directors and Officers of CDT. The Board of Directors of
CDT shall take all action within its power so that:
(a) immediately following the Effective Time, the (i) Board of
Directors of CDT shall consist of ten (10) directors, who shall be ▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (collectively the "Belden Designated Directors") and ▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ F.O. ▇▇▇▇▇▇
(collectively the "CDT Designated Directors"), and each such director shall
serve for a term expiring at CDT's first annual meeting of stockholders
following the Closing Date and (ii) the Chairman of the Board of Directors of
CDT shall be ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who shall serve in such capacity until the first
annual meeting following the Closing Date;
(b) immediately following the Effective Time, each committee of the
Board of Directors shall be comprised of an equal number of Belden Designated
Directors and CDT Designated Directors;
59
(c) immediately following the Effective Time, the persons named on
Schedule 6.13(c) hereto shall be appointed to, or continue to serve in, the
respective offices set forth thereon and shall have the duties set forth on such
schedule opposite such offices; and
(d) immediately following the Effective Time, the CDT Bylaws shall be
amended, effective at the Effective Time, to provide that, until the third (3rd)
anniversary of the Effective Time, the affirmative vote, at a duly convened
meeting of CDT's Board of Directors, of at least seventy percent (70%) of CDT's
entire Board of Directors shall be required to:
(i) remove any of the persons named on Schedule 6.13(c) from
his respective position as set forth on such schedule, or significantly
diminish his position, authority, duties or responsibilities;
(ii) remove any director from CDT's Board of Directors;
(iii) approve or recommend a merger (other than a merger of a
wholly-owned Subsidiary of CDT with and into CDT), consolidation,
reorganization or recapitalization of CDT or any sale of all or a
substantial portion of the assets of CDT and its Subsidiaries, taken as
a whole;
(iv) acquire, by purchase, merger or otherwise, in one
transaction or a series of related transactions, any equity or other
ownership interest in, or assets of, any Person in exchange for
consideration with a Fair Market Value (as defined in Section 9.3(g))
greater than $100,000,000;
(v) authorize for issuance or issue any equity securities or
any equity or debt securities (or hybrid or combination thereof)
convertible into or exercisable for, or which give the holder thereof
the right to acquire, any equity securities of CDT, in one transaction
or a series of related transactions, with a Fair Market Value at the
time of issuance in excess of $100,000,000 other than (A) any issuance
to directors, officers or employees in the ordinary course of business
pursuant to an employee stock purchase plan, employee stock option plan
or similar compensation plan approved by CDT's Board of Directors or
compensation committee thereof or (B) any refinancing of existing
indebtedness;
(vi) purchase, redeem, prepay, acquire or retire for value any
shares of CDT's capital stock or securities exercisable for or
convertible into shares of CDT's capital stock other than as required
under the terms of such capital stock or securities, except for the
deemed acceptance of shares upon cashless exercise of CDT Options or
Belden Options outstanding on the date hereof;
(vii) declare, incur any liability to declare, or pay any
dividends, or make any distributions in respect of, any shares of CDT's
capital stock other than as required under the terms of such capital
stock;
(viii) incur Indebtedness in one transaction or a series of
related transactions in excess of $100,000,000 in aggregate principal
amount (other than intercompany Indebtedness and Indebtedness
outstanding as of the Closing Date (and borrowings
60
pursuant to the terms thereof), and any amendment or refinancing of
such Indebtedness in a principal amount not exceeding the principal
amount so refinanced and on financial and other terms no less favorable
to CDT than such outstanding Indebtedness); or
(ix) amend or modify, or adopt a by-law, or approve or
recommend to the holders of CDT Common Stock any amendment to the CDT
By-Laws or the CDT Charter, that is inconsistent with, the provisions
of clauses (i) through (viii) of this Section 6.13(d) or Section
6.13(e).
(e) immediately following the Effective Time, the CDT Bylaws shall be
amended, effective at the Effective Time, to provide that, until the third (3rd)
anniversary of the Effective Time:
(i) the Board of Directors shall consist of ten (10)
directors;
(ii) if any Belden Designated Director ceases to serve as such
for any reason, or upon the expiration of the term of office of any
Belden Designated Director, the Belden Designated Directors shall
appoint or nominate for election, as the case may be, the person to
fill such directorship and such person so appointed or nominated shall
be deemed a Belden Designated Director;
(iii) if any CDT Designated Director ceases to serve as such
for any reason, or upon the expiration of the term of office of any CDT
Designated Director, the CDT Designated Directors shall appoint or
nominate for election, as the case may be, the person to fill such
directorship and such person so appointed or nominated shall be deemed
a CDT Designated Director;
(iv) if a CDT Designated Director ceases to serve as Chairman
of the Board of Directors for any reason, including expiration of a
term, the CDT Designated Directors then serving on the Board of
Directors shall nominate an individual to fill such position (the "CDT
Nominee"), which such CDT Nominee would be slated for election by the
Board of Directors in accordance with applicable provisions of the CDT
By-Laws; and each of CDT and Belden shall use its reasonable best
efforts to cause the CDT Designated Directors or the Belden Designated
Directors then serving on the Board of Directors, as applicable, to
vote in favor of such CDT Nominee to be elected as Chairman of the
Board of Directors; and any CDT Nominee so elected shall be deemed a
CDT Designated Director;
(v) if a Belden Designated Director ceases to serve as Chief
Executive Officer of CDT for any reason, including expiration of a
term, the Belden Designated Directors then serving on the Board of
Directors shall nominate an individual to fill such position (the
"Belden Nominee"), which such Belden Nominee would be slated for
election by the Board of Directors in accordance with applicable
provisions of the CDT By-Laws; and each of CDT and Belden shall use its
reasonable best efforts to cause the CDT Designated Directors or the
Belden Designated Directors then serving on the Board of Directors, as
applicable, to vote in favor of such Belden Nominee to be elected as
Chief
61
Executive Officer of CDT; and any Belden Nominee so elected shall be
deemed a Belden Designated Director; and
(vi) each committee of the Board of Directors shall be
comprised of an equal number of Belden Designated Directors and CDT
Designated Directors, and any vacancy on any such committee shall be
filled by the remaining CDT Designated Directors or Belden Designated
Directors serving on such committee, as appropriate, and if there shall
be no such CDT Designated Directors or Belden Designated Directors
serving on such committee, such vacancy shall be filled by the CDT
Designated Directors or Belden Designated Directors serving on the
Board of Directors, as appropriate.
SECTION 6.14 Affiliate Legends. Section 6.14 of the Belden Disclosure
Schedule sets forth a list of those Persons who are, in ▇▇▇▇▇▇'▇ reasonable
judgment, "affiliates" of Belden within the meaning of Rule 145 promulgated
under the Securities Act ("Rule 145 Affiliates"). Belden shall notify CDT in
writing regarding any change in the identity of its Rule 145 Affiliates prior to
the Closing Date. CDT shall be entitled to place appropriate legends on the
certificates evidencing any shares of CDT Common Stock to be received by Rule
145 Affiliates in the Merger reflecting the restrictions set forth in Rule 145
promulgated under the Securities Act and to issue appropriate stop transfer
instructions to the transfer agent for CDT Common Stock (provided that such
legends or stop transfer instructions shall be removed one year after the
Effective Time upon the request of any holder of shares of CDT Common Stock
issued in the Merger if such holder is not then a Rule 145 Affiliate).
SECTION 6.15 Notification of Certain Matters. Belden shall give prompt
notice to CDT, and CDT shall give prompt notice to Belden, of (a) the
occurrence, or failure to occur, of any event, which occurrence or failure to
occur would reasonably be likely to cause (i) any representation or warranty of
such party contained in this Agreement that is qualified as to "materiality" or
"Material Adverse Effect" to be untrue or inaccurate in any respect or (ii) any
other representation or warranty of such party contained in this Agreement to be
untrue or inaccurate in any material respect, in each case at any time from and
after the date of this Agreement until the Effective Time, (b) any material
failure of Belden and the Merger Sub or CDT, as the case may be, or of any
officer, director, employee or agent thereof, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it under
this Agreement, (c) any event occurring on or after the date hereof that would
have been required to be disclosed pursuant to Article III or IV had such event
occurred prior to the execution hereof, or (d) any change in circumstances
regarding CDT or Belden, as the case may be, that comes to the attention of any
person included in the definition of the term "Knowledge," that would require
disclosure regarding controls and procedures in such party's periodic reports
filed under the Exchange Act that is materially more negative than that included
in such party's most recently filed periodic report. In addition, Belden shall
give prompt notice to CDT and CDT shall give prompt notice to Belden of any
change or event having, or which would reasonably be likely to have, a Material
Adverse Effect on such party or which would be reasonably likely to result in
the failure of any of the conditions set forth in Article VII to be satisfied.
Each of the parties shall give prompt written notice to the other party of any
material correction to any of the CDT SEC Documents or the Belden SEC Documents,
as the case may be, from and after the date hereof. Notwithstanding the above,
the delivery of any notice pursuant to this Section 6.15 will
62
not limit or otherwise affect the remedies available hereunder to the party
receiving such notice or the conditions to such party's obligation to consummate
the Merger.
SECTION 6.16 Section 16 Matters. Prior to the Effective Time, CDT and
Belden shall use all reasonable efforts to approve in advance in accordance with
the procedures set forth in Rule 16b-3 promulgated under the Exchange Act and
the Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP SEC No-Action Letter (January 12,
1999) any dispositions of Belden securities (including derivative securities
with respect to Belden securities) to or acquisitions of CDT securities
(including derivative securities with respect to CDT securities) resulting from
the transactions contemplated by this Agreement by each officer or director of
CDT or Belden who is subject to Section 16 of the Exchange Act (or who will
become subject to Section 16 of the Exchange Act as a result of the transactions
contemplated hereby) with respect to equity securities of Belden or CDT.
SECTION 6.17 Rights Plans; State Takeover Laws.
(a) Prior to the Effective Time, neither CDT nor Belden shall redeem
the CDT Rights or the Belden Rights or amend, modify (other than to delay any
"distribution date" therein or to render the CDT Rights or the Belden Rights
inapplicable to the Merger or any action permitted under this Agreement) or
terminate the CDT Rights Agreement or the Belden Rights Agreements unless (i)
required to do so by order of a court of competent jurisdiction or (ii) ▇▇▇▇▇▇'▇
or CDT's Board of Directors, as the case may be, has concluded in good faith,
after receipt of advice of its outside legal counsel, that, in light of a
Superior Proposal with respect to it, the failure to effect such amendment,
modification or termination could reasonably result in a breach of its Board of
Directors' fiduciary obligations to its stockholders under Applicable Law.
(b) Prior to the Effective Time, neither CDT nor Belden shall take any
action to render inapplicable, or to exempt any third party from, any state
takeover law or state law that purports to limit or restrict business
combinations or the ability to acquire or vote shares of capital stock unless
(i) required to do so by order of a court of competent jurisdiction or (ii)
▇▇▇▇▇▇'▇ or CDT's Board of Directors, as the case may be, has concluded in good
faith, after receipt of advice of its outside legal counsel, that, in light of a
Superior Proposal with respect to it, the failure to take such action could
reasonably result in a breach of its Board of Directors' fiduciary obligations
to its stockholders under Applicable Law.
SECTION 6.18 Reservation of CDT Common Stock. Effective at or prior to
the Effective Time, CDT shall reserve (free from preemptive rights) out of its
reserved but unissued shares of CDT Common Stock sufficient shares of CDT Common
Stock to provide for (i) the conversion of the issued and outstanding shares of
▇▇▇▇▇▇ Common Stock pursuant to this Agreement and (ii) the issuance of CDT
Common Stock upon the exercise of ▇▇▇▇▇▇ Options assumed by CDT under Section
6.11.
SECTION 6.19 Registration on Form S-3. CDT shall use its reasonable
efforts to cause to become effective as soon as practicable its previously filed
registration statement Form S-3 relating to the offer and resale of the CDT
Debentures and the shares of CDT Common Stock issuable upon conversion of the
CDT Debentures by the holders thereof, and following such effectiveness, shall
use its reasonable efforts to keep its registration statement Form S-3 effective
63
until the Effective Time. Each party shall also take any action (other than
qualifying to do business in any jurisdiction in which it is not now so
qualified or to file a general consent to service of process) required to be
taken under any applicable state securities laws in connection with the issuance
of such securities and the resale by the holders thereof, and shall furnish to
the other party all information concerning such other party and, to the extent
that CDT possesses such information, the holders of the CDT Debentures, as may
be reasonably requested in connection with any such action. No filing of, or
amendment or supplement to, its Form S-3 will be made by CDT without ▇▇▇▇▇▇'▇
prior consent (which shall not be unreasonably withheld) and without providing
▇▇▇▇▇▇ reasonable opportunity to review and comment thereon. CDT will advise
▇▇▇▇▇▇ promptly after it receives notice of (i) the time when the Form S-3 has
become effective or any supplement or amendment has been filed, (ii) the
issuance of any stop order, (iii) the suspension of the qualification of the
applicable securities for offering or sale in any jurisdiction, or (iv) any
request by the SEC for amendment of the Form S-3 or comments thereon and
responses thereto or requests by the SEC for additional information. If at any
time prior to the Effective Time any information relating to ▇▇▇▇▇▇ or CDT, or
any of their respective Affiliates, officers or directors, shall be discovered
by Belden or CDT which should be set forth in an amendment or supplement to the
Form S-3 so that such document would not include any misstatement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, the party which discovers such information shall promptly notify the
other parties hereto and an appropriate amendment or supplement describing such
information shall promptly be filed with the SEC and, to the extent required by
law, disseminated to the holders of the CDT Debentures.
SECTION 6.20 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of Belden, any deeds, bills of
sale, assignments or assurances and to take any other actions and do any other
things, in the name and on behalf of ▇▇▇▇▇▇, reasonably necessary to vest,
perfect or confirm of record or otherwise in the Surviving Corporation any and
all right, title and interest in, to and under any of the rights, properties or
assets of Belden acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with, the Merger.
SECTION 6.21 Stockholder Litigation. Each of ▇▇▇▇▇▇ and CDT shall give
the other the reasonable opportunity to consult in the defense of any
stockholder litigation against Belden or CDT, as applicable, and its directors
relating to the transactions contemplated by this Agreement.
SECTION 6.22 Reverse Stock Split. CDT shall use its commercially
reasonable efforts to take all actions necessary so that all outstanding
options, warrants and other securities of CDT, including, without limitation,
the CDT Debentures, that are convertible into, or exchangeable or exercisable
for, CDT Common Stock shall, from and after the effective time of the Reverse
Stock Split, be convertible into, or exchangeable or exercisable for, a number
of shares of CDT Common Stock that gives effect to the Reverse Stock Split.
64
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1 Conditions to Each Party's Obligation to Effect The Merger.
The obligation of each party to effect the Merger is subject to the satisfaction
or waiver at or prior to the Closing of the following conditions:
(a) Stockholder Approvals. Each of the CDT Share Issuance Approval, the
CDT Charter Approval and the Belden Stockholder Approval shall have been
obtained.
(b) Antitrust Waiting Periods. The waiting periods (and any extensions
thereof) applicable to the Merger under the HSR Act and under the foreign
antirust laws, rules or regulations described on Schedule 7.1(b) hereto shall
have been terminated or shall have expired.
(c) Governmental Consents and Approvals. Other than as required by
Section 7.1(b), all filings with, and all consents, approvals and authorizations
of, any Governmental Entity required to be made or obtained by Belden, CDT or
any of their Subsidiaries to consummate the Merger, the failure of which to be
obtained would, individually or in the aggregate, have a Material Adverse Effect
on CDT (determined, for purposes of this clause, after giving effect to the
Merger), shall have been made or obtained.
(d) No Injunctions or Restraints. No judgment, order, decree, statute,
law, ordinance, rule or regulation, or other legal restraint or prohibition,
entered, enacted, promulgated, enforced or issued by any court or other
Governmental Entity of competent jurisdiction (collectively, "Restraints"),
shall be in effect which prohibits, materially restricts, makes illegal or
enjoins the consummation of the transactions contemplated by this Agreement.
(e) Form S-4. The Form S-4 shall have become effective under the
Securities Act, and no stop order or proceedings seeking a stop order shall have
been initiated or, to the Knowledge of Belden or CDT, threatened by the SEC.
(f) Listing. The shares of CDT Common Stock issuable to the
stockholders of ▇▇▇▇▇▇ as provided for in Article II shall have been authorized
for listing on the NYSE upon official notice of issuance.
(g) Tax Opinions. ▇▇▇▇▇▇ and CDT shall have received an opinion of each
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
respectively, dated as of the Effective Time, to the effect that the Merger will
qualify as a reorganization within the meaning of Section 368(a) of the Code.
The issuance of each such opinion shall be conditioned upon the receipt by such
counsel of customary representation letters from each of CDT, Merger Sub, and
▇▇▇▇▇▇, in each case, in form and substance reasonably satisfactory to such
counsel, and substantially to the effect of the letters attached hereto in
Exhibit D. Each such representation letter shall be dated on the date of such
opinion and shall not have been withdrawn or modified in any material respect.
The opinion condition referred to in this Section 7.1(g) shall not be waivable
after receipt of the Belden Stockholder Approval or after receipt of the CDT
Share Issuance Approval unless further stockholder approval of Belden
stockholders or the CDT Stockholders, respectively, is obtained with appropriate
disclosure.
65
SECTION 7.2 Conditions to Obligations of CDT and Merger Sub. The
obligation of CDT and Merger Sub to effect the Merger is further subject to
satisfaction or waiver at or prior to the Closing of the following conditions:
(a) Representations and Warranties. Except as a result of action
expressly permitted or expressly consented to in writing by CDT pursuant to
Section 5.1, the representations and warranties of ▇▇▇▇▇▇ contained in this
Agreement (A) that are not qualified as to "materiality" or "Material Adverse
Effect" shall be true and correct in all material respects when made and as of
the Closing Date, as if made as of such time, and (B) that are qualified as to
"materiality" or "Material Adverse Effect" shall be true and correct when made
and as of the Closing Date, as if made as of such time, (except in each case to
the extent such representations and warranties are expressly made as of a
certain date, in which case such representations and warranties shall be true
and correct in all material respects or true and correct, as the case may be, as
of such earlier date).
(b) Performance of Obligations of ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall have performed,
or complied with, in all material respects, all obligations required to be
performed or complied with by it under this Agreement at or prior to the Closing
Date.
(c) No Material Adverse Change. No Material Adverse Change of Belden
shall have occurred since the date of this Agreement and be continuing.
(d) ▇▇▇▇▇▇ Rights Agreement. The ▇▇▇▇▇▇ Rights issued pursuant to the
▇▇▇▇▇▇ Rights Agreement shall not have become non-redeemable, exercisable,
distributed (separately from shares of ▇▇▇▇▇▇ Common Stock) or triggered
pursuant to the terms of such agreement and shall terminate upon the Effective
Time.
(e) ▇▇▇▇▇▇ Options. The ▇▇▇▇▇▇ Stock Plans shall have been amended or
supplemented or waivers shall have been obtained from each holder of outstanding
▇▇▇▇▇▇ Options, if necessary, such that the treatment of each ▇▇▇▇▇▇ Option
outstanding immediately prior to the Effective Time shall be as set forth in
Section 6.11(a).
(f) Officer's Certificate. CDT shall have received an officer's
certificate duly executed by each of the Chief Executive Officer and Chief
Financial Officer of Belden to the effect that the conditions set forth in
Sections 7.2(a), (b), (c), (d), and (e) have been satisfied.
SECTION 7.3 Conditions to Obligations of ▇▇▇▇▇▇. The obligations of
Belden to effect the Merger are further subject to satisfaction or waiver at or
prior to the Closing of the following conditions:
(a) Representations and Warranties. Except as a result of action
expressly permitted or expressly consented to in writing by Belden pursuant to
Section 5.1, the representations and warranties of CDT and Merger Sub contained
in this Agreement (A) that are not qualified as to "materiality" or "Material
Adverse Effect" shall be true and correct in all material respects when made and
as of the Closing Date, as if made as of such time, and (B) that are qualified
as to "materiality" or "Material Adverse Effect" shall be true and correct when
made and as of the Closing Date, as if made as of such time, (except in each
case to the extent such representations and warranties are expressly made as of
a certain date, in which case such representations and
66
warranties shall be true and correct in all material respects or true and
correct, as the case may be, as of such earlier date); provided, however, that
the representations and warranties of CDT shall be deemed to be amended to give
effect to the Reverse Stock Split if it has been effected prior to the Effective
Time.
(b) Performance of Obligations of CDT and Merger Sub. Each of CDT and
Merger Sub shall have performed, or complied with, in all material respects all
obligations required to be performed or complied with by it under this Agreement
at or prior to the Closing Date.
(c) No Material Adverse Change. No Material Adverse Change of CDT shall
have occurred since the date of this Agreement and be continuing.
(d) CDT Rights Agreement. The CDT Rights issued pursuant to the CDT
Rights Agreement shall not have become non-redeemable, exercisable, distributed
(separately from CDT Common Stock) or triggered pursuant to the terms of such
agreement.
(e) Officer's Certificate. Belden shall have received an officer's
certificate duly executed by each of the Chief Executive Officer and Chief
Operating Officer of CDT to the effect that the conditions set forth in Sections
7.3(a), (b), (c) and (d) have been satisfied.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time by action taken or authorized by the Board of
Directors of the terminating party or parties, and (except in the case of
Sections 8.1(e) or 8.1(f)) whether before or after the CDT Share Issuance
Approval, the CDT Charter Approval or the Belden Stockholder Approval:
(a) by mutual written consent of CDT and ▇▇▇▇▇▇, if the Board of
Directors of each so determines;
(b) by written notice of either CDT or ▇▇▇▇▇▇ (as authorized by the
Board of Directors of CDT or ▇▇▇▇▇▇, as applicable):
(i) if the Merger shall not have been consummated by August
31, 2004 (the "Outside Date"), provided, however, that if (x) the
Effective Time has not occurred by such date by reason of
nonsatisfaction of any of the conditions set forth in Section 7.1(b) or
Section 7.1(c) and (y) all other conditions set forth in Article VII
have been satisfied or waived or are then capable of being satisfied,
then such date shall automatically be extended to November 30, 2004
(which shall then be the "Outside Date"); provided, further that the
right to terminate this Agreement under this Section 8.1(b)(i) shall
not be available to any party whose failure to fulfill in any material
respect any obligation of such party, or satisfy any condition to be
satisfied by such party, under this Agreement has caused or resulted in
the failure of the Effective Time to occur on or before the Outside
Date;
67
(ii) if a Governmental Entity of competent jurisdiction shall
have issued an order, decree or ruling or taken any other action
(including the failure to have taken an action), in any case having the
effect of permanently restraining, enjoining or otherwise prohibiting
the Merger, which order, decree, ruling or other action is final and
nonappealable; provided however, that the right to terminate this
Agreement under this Section 8.1(b)(ii) shall not be available to a
party which has not used commercially reasonable efforts to resist,
resolve or lift, as applicable (as contemplated by Section 6.4) any
such order, decree, ruling or other action;
(iii) if the CDT Share Issuance Approval and the CDT Charter
Approval shall not have been obtained at the CDT Stockholders' Meeting,
or at any adjournment or postponement thereof, at which the vote was
taken; provided, however, that the right to terminate this Agreement
under this Section 8.1(b)(iii) shall not be available to CDT if the
failure to obtain the CDT Share Issuance Approval or the CDT Charter
Approval shall have been caused by the action or failure to act of CDT
and such action or failure to act constitutes a material breach by CDT
of this Agreement;
(iv) if the Belden Stockholder Approval shall not have been
obtained at the ▇▇▇▇▇▇ Stockholders' Meeting, or at any adjournment or
postponement thereof, at which the vote was taken; provided, however,
that the right to terminate this Agreement under this Section
8.1(b)(iv) shall not be available to Belden if the failure to obtain
the Belden Stockholder Approval shall have been caused by the action or
failure to act of Belden and such action or failure to act constitutes
a material breach by Belden of this Agreement;
(c) by CDT (as authorized by its Board of Directors) upon a breach of
any representation, warranty, covenant or agreement on the part of Belden set
forth in this Agreement, or if any representation or warranty of ▇▇▇▇▇▇ shall
have become untrue, in either case such that the conditions set forth in Section
7.2(a) or Section 7.2(b) would not be satisfied as of the time of such breach or
as of the time such representation or warranty shall have become untrue and (ii)
such inaccuracy in ▇▇▇▇▇▇'▇ representations and warranties or breach by Belden
has not been or is incapable of being cured by Belden within 30 calendar days
after its receipt of written notice thereof from CDT;
(d) by Belden (or authorized by its Board of Directors) upon a breach
of any representation, warranty, covenant or agreement on the part of CDT set
forth in this Agreement, or if any representation or warranty of CDT shall have
become untrue, in either case such that the conditions set forth in Section
7.3(a) or Section 7.3(b) would not be satisfied as of the time of such breach or
as of the time such representation or warranty shall have become untrue and (ii)
such inaccuracy in CDT's representations and warranties or breach by CDT has not
been or is incapable of being cured by CDT within 30 calendar days after its
receipt of written notice thereof from ▇▇▇▇▇▇;
(e) by Belden (as authorized by its Board of Directors), at any time
prior to the CDT Share Issuance Approval or the CDT Charter Approval, if CDT,
CDT's Board of Directors or any committee thereof, for any reason, shall have
(i) failed to hold the CDT Stockholders' Meeting in accordance with Section
6.1(b) on or before July 30, 2004, (ii) failed to include in the Joint Proxy
Statement distributed to the stockholders of CDT its recommendation without
68
modification or qualification in favor of the CDT Charter Amendment and the CDT
Share Issuance, (iii) withdrawn its recommendation in favor of the CDT Charter
Amendment or the CDT Share Issuance, (iv) amended, modified or qualified such
recommendation in a manner adverse to the interests of Belden, (v) failed to
reconfirm such recommendation within five (5) business days of receipt of a
written request from Belden to do so, (vi) approved or recommended any
Alternative Transaction, or (vii) failed, within ten (10) business days after
any tender or exchange offer relating to CDT Common Stock commenced by any third
party shall have been first published, sent or given, to have sent to its
security holders a statement disclosing that the Board of Directors of CDT
recommends rejection of such tender offer or exchange offer; or
(f) by CDT (as authorized by its Board of Directors), at any time prior
to the Belden Stockholder Approval, if ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ Board of Directors or
any committee thereof, for any reason, shall have (i) failed to hold the ▇▇▇▇▇▇
Stockholders' Meeting in accordance with Section 6.1(b) on or before July 30,
2004, (ii) failed to include in the Joint Proxy Statement distributed to the
stockholders of ▇▇▇▇▇▇ its recommendation without modification or qualification
that such stockholders adopt and approve this Agreement and approve the Merger,
(iii) withdrawn its recommendation in favor of the adoption and approval of this
Agreement or the Merger, (iv) amended, modified or qualified such recommendation
in a manner adverse to the interests of CDT, (v) failed to reconfirm such
recommendation within five (5) business days of receipt of a written request
from CDT to do so, (vi) approved or recommended any Alternative Transaction, or
(vii) failed, within ten (10) business days after any tender or exchange offer
relating to ▇▇▇▇▇▇ Common Stock commenced by any third party shall have been
first published, sent or given, to have sent to its security holders a statement
disclosing that the Board of Directors of Belden recommends rejection of such
tender offer or exchange offer.
SECTION 8.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 8.1, this Agreement shall forthwith become void
and there shall be no liability on the part of any of the parties, except that
(i) Sections 6.3(b), 6.6, this Section 8.2 and Section 8.3, as well as Article
IX (other than Section 9.1) shall survive termination of this Agreement and
continue in full force and effect, and (ii) that nothing herein shall relieve
any party from liability for any willful breach of any representation or
warranty of such party contained herein or any breach of any covenant or
agreement of such party contained herein. No termination of this Agreement shall
affect the obligations of the parties contained in the CDA, all of which
obligations shall survive termination of this Agreement in accordance with their
terms.
SECTION 8.3 Payments.
(a) Payment by CDT. Subject to subsections (i)-(iii) below, in the
event that this Agreement is terminated by CDT pursuant to any of Sections
8.1(b)(i) or 8.1(b)(iii), or by Belden pursuant to any of Sections 8.1(b)(i),
8.1(b)(iii), 8.1(d) or 8.1(e), CDT shall promptly, but in no event later than
two (2) business days after the date of such termination, pay ▇▇▇▇▇▇ a fee equal
to $15,000,000 in immediately available funds (the "CDT Termination Fee");
provided, that notwithstanding the foregoing:
(i) no CDT Termination Fee shall be payable in the case of a
termination by Belden pursuant to Section 8.1(e) if ▇▇▇▇▇▇'▇ right to
terminate this Agreement pursuant
69
to such Section 8.1(e) arises solely out of the Board of Directors of
CDT having effected a Change of Recommendation as permitted by and in
compliance with clause (1) of Section 5.2(d)(ii);
(ii) in the case of a termination pursuant to Section
8.1(b)(i) or Section 8.1(b)(iii) (by either ▇▇▇▇▇▇ or CDT), the CDT
Termination Fee shall be payable only if following the date hereof and
prior to such termination, any Person shall have made to CDT or its
stockholders, or publicly announced, a proposal, offer or indication of
interest relating to any Acquisition (as defined in Section 8.3(d))
with respect to CDT and within twelve (12) months following termination
of this Agreement, (x) an Acquisition of CDT is consummated or (y) CDT
enters into an agreement providing for an Acquisition of CDT which is
consummated at any time thereafter, such fee payment to be made
concurrently with the consummation of such Acquisition; and
(iii) in the case of a termination under Section 8.1(d), the
CDT Termination Fee shall be payable only if (A) following the date
hereof and prior to such termination, any Person shall have made to CDT
or its stockholders, or publicly announced, a proposal, offer or
indication of interest relating to an Alternative Transaction with
respect to CDT and (B) CDT's breach is willful or intentional and
intended to facilitate, assist or otherwise benefit, or such breach has
the effect of facilitating or assisting or otherwise benefiting, an
Alternative Transaction or the Person making such Alternative
Transaction.
(b) Payment by Belden. Subject to subsections (i)-(iii) below, in the
event that this Agreement is terminated by Belden pursuant to any of Sections
8.1(b)(i) or 8.1(b)(iv), or by CDT pursuant to any of Sections 8.1(b)(i),
8.1(b)(iv), 8.1(c) or 8.1(f), Belden shall promptly, but in no event later than
two (2) business days after the date of such termination, pay CDT a fee equal to
$15,000,000 in immediately available funds (the "▇▇▇▇▇▇ Termination Fee");
provided, that notwithstanding the foregoing:
(i) no ▇▇▇▇▇▇ Termination Fee shall be payable in the case of
a termination by CDT pursuant to Section 8.1(f) if CDT's right to
terminate this Agreement pursuant to such Section 8.1(f) arises solely
out of the Board of Directors of ▇▇▇▇▇▇ having effected a Change of
Recommendation as permitted by and in compliance with clause (2) of
Section 5.2(d)(ii);
(ii) in the case of a termination pursuant to Section
8.1(b)(i) or Section 8.1(b)(iv), the ▇▇▇▇▇▇ Termination Fee shall be
payable only if following the date hereof and prior to such
termination, any Person shall have made to ▇▇▇▇▇▇ or its stockholders,
or publicly announced, a proposal, offer or indication of interest
relating to any Acquisition with respect to Belden and within twelve
(12) months following termination of this Agreement, (x) an Acquisition
of ▇▇▇▇▇▇ is consummated or (y) ▇▇▇▇▇▇ enters into an agreement
providing for an Acquisition of ▇▇▇▇▇▇ which is consummated at any time
thereafter, such fee payment to be made concurrently with the
consummation of such Acquisition; and
70
(iii) in the case of a termination under Section 8.1(c), the
▇▇▇▇▇▇ Termination Fee shall be payable only if (A) following the date
hereof and prior to such termination, any Person shall have made to
▇▇▇▇▇▇ or its stockholders, or publicly announced, a proposal, offer or
indication of interest relating to an Alternative Transaction with
respect to Belden and (B) ▇▇▇▇▇▇'▇ breach is willful or intentional and
intended to facilitate, assist or otherwise benefit, or such breach has
the effect of facilitating, assisting or otherwise benefiting, an
Alternative Transaction or the Person making an Alternative
Transaction.
(c) Interest and Costs; Other Remedies. All payments under this Section
8.3 shall be made by wire transfer of immediately available funds to an account
designated by the party to receive payment. Each of ▇▇▇▇▇▇ and CDT acknowledges
that the agreements contained in this Section 8.3 are an integral part of the
transactions contemplated by this Agreement and that, without these agreements,
the other party hereto would not enter into this Agreement; accordingly, if
▇▇▇▇▇▇ or CDT, as the case may be, fails to pay in a timely manner the amounts
due pursuant to this Section 8.3 and, in order to obtain such payment, the other
party hereto makes a claim that results in a judgment against the party failing
to pay for the amounts set forth in this Section 8.3, the party so failing to
pay shall pay to the other party its reasonable costs and expenses (including
reasonable attorneys' fees and expenses) in connection with such suit, together
with interest on the amounts set forth in this Section 8.3 at the rate of
interest per annum publicly announced by ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank as its prime rate
at its principal office in New York City, as in effect on the date such payment
was required to be made. Payment of the fees described in this Section 8.3 shall
not be in lieu of damages incurred in the event of breach of this Agreement,
subject to Section 8.2. This entire Section 8.3 shall survive any termination of
this Agreement.
(d) Certain Definitions. For the purposes of this Section 8.3 only,
"Acquisition," with respect to a party hereto, shall mean any of the following
transactions (other than the Merger): (i) a merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving the party pursuant to which the stockholders of the party immediately
preceding such transaction hold less than fifty percent (50%) of the aggregate
equity interests in the surviving or resulting entity of such transaction or any
direct or indirect parent thereof, (ii) a sale or other disposition by the party
or its Subsidiaries of assets representing in excess of fifty percent (50%) of
the aggregate fair market value of the consolidated assets of the party and its
Subsidiaries immediately prior to such sale, or (iii) the acquisition by any
Person or group (including by way of a tender offer or an exchange offer or
issuance by the party or such Person or group), directly or indirectly, of
beneficial ownership or a right to acquire beneficial ownership of shares
representing in excess of fifty percent (50%) of the voting power of then
outstanding shares of capital stock of the party.
SECTION 8.4 Amendment. Subject to compliance with Applicable Law, this
Agreement may be amended by the parties in writing at any time before or after
the CDT Share Issuance Approval, the CDT Charter Approval or the Belden
Stockholder Approval; provided, however, that after the Belden Stockholder
Approval, the CDT Share Issuance Approval or the CDT Charter Approval, there may
not be, without further approval of the stockholders of Belden or CDT,
respectively, any amendment of this Agreement that changes the amount or the
form of the consideration to be delivered to the holders of ▇▇▇▇▇▇ Common Stock
hereunder, or which by
71
law or NYSE rule otherwise expressly requires the further approval of such
stockholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto and duly approved by the
parties' respective Boards of Directors or a duly designated committee thereof.
SECTION 8.5 Extension; Waiver. At any time prior to the Effective Time,
a party may, subject to the proviso of Section 8.4 (and for this purpose
treating any waiver referred to below as an amendment), (a) extend the time for
the performance of any of the obligations or other acts of the other parties,
(b) waive any inaccuracies in the representations and warranties of the other
parties contained in this Agreement or in any document delivered pursuant to
this Agreement or (c) waive compliance by the other party with any of the
agreements or conditions contained in this Agreement. 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. Any extension or waiver
given in compliance with this Section 8.5 or failure to insist on strict
compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 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 9.1
shall not limit the survival of any covenant or agreement of the parties in the
Agreement which by its terms contemplates performance after the Effective Time.
SECTION 9.2 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, sent via facsimile (receipt confirmed) or sent by
a nationally recognized 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):
(a) if to Belden to:
▇▇▇▇▇▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
72
(b) if to CDT or Merger Sub, to:
Cable Design Technologies Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
Citigroup Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
SECTION 9.3 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, where "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a Person, whether through the ownership
of voting securities, by contract, as trustee or executor, or otherwise;
(b) An "Alternative Transaction" with respect to a party hereto, shall
mean any of the following transactions: (i) any transaction or series of related
transactions with one or more third Persons involving: (A) any purchase from
such party or acquisition by any Person or "group" (as defined under Section
13(d) of the Exchange Act and the rules and regulations thereunder) of more than
a thirty-five percent (35%) interest in the total outstanding voting securities
of such party or any of its Subsidiaries or any tender offer or exchange offer
that if consummated would result in any Person or group beneficially owning
thirty-five percent (35%) or more of the total outstanding voting securities of
such party or any of its Subsidiaries or any merger, consolidation, business
combination or similar transaction involving such party or any of its
Subsidiaries, or (B) any sale, lease (other than in the ordinary course of
business consistent with past practice), exchange, transfer, license (other than
in the ordinary course of business consistent with past practice), acquisition
or disposition of more than thirty-five percent (35%) of the assets of such
party or any of its Subsidiaries, taken as a whole, or (ii) any liquidation or
dissolution of such party;
(c) An "Alternative Transaction Proposal" shall mean any offer or
proposal relating to an Alternative Transaction;
(d) "Contract" shall mean any written, oral or other agreement,
contract, subcontract, settlement agreement, lease, binding understanding,
instrument, note, option, bond, mortgage, indenture, trust document, loan or
credit agreement, warranty, purchase order, license,
73
sublicense, insurance policy, benefit plan or legally binding commitment or
undertaking of any nature, as in effect as of the date hereof or as may
hereinafter be in effect;
(e) "Environmental Laws" means any and all federal, state, foreign,
interstate, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decisions, injunctions, orders, decrees, requirements of any
Governmental Entity, any and all common law requirements, rules and bases of
liability regulating, relating to or imposing liability or standards of conduct
concerning pollution or protection of human health, safety or the environment,
as currently in effect and includes the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the Clean Water
Act, 33 U.S.C. Section 1251 et seq., the Clean Air Act, 42 U.S.C. Section 7401
et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C., Section 136 et
seq., Occupational Safety and Health Act 29 U.S.C. Section 651 et seq. and the
Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq., as such laws have
been amended or supplemented, and the regulations promulgated pursuant thereto,
and all analogous state or local statutes;
(f) "Environmental Liabilities" with respect to any Person means any
and all liabilities of or relating to such Person or any of its Subsidiaries
(including any entity which is, in whole or in part, a predecessor of such
Person or any of such Subsidiaries), which (i) arise under or relate to matters
covered by Environmental Laws and (ii) relate to actions occurring or conditions
existing on or prior to the Closing Date;
(g) "Fair Market Value" means (i) in the case of cash, the amount
thereof, (ii) in the case of capital stock that has been publicly traded for a
period of at least 12 months, with respect to any shares of any class of capital
stock traded (x) on a national securities exchange or the Nasdaq Stock Market,
the average of the reported closing bid and asked prices regular way of a share
of such class or series for the 20 trading days preceding the date of
determination and (y) on the over-the-counter market, the average bid and asked
prices of a share of such class or series in the over-the-counter market for the
20 trading days preceding the date of determination as furnished by any NYSE
member firm selected by the Belden, and (iii) in the case of other assets or
securities, the fair market value thereof as determined in good faith by the
Board of Directors of Belden;
(h) "Guaranty" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing (whether by reason of being a general partner of a partnership or
otherwise) any indebtedness, dividend or other obligation of any other Person in
any manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person: (a) to purchase such indebtedness or obligation or any property
constituting security therefore; (b) to advance or supply funds (i) for the
purchase or payment of such indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make available funds
for the purchase or payment of such indebtedness or obligation; (c) to lease
properties or to purchase properties or services primarily for the purpose of
assuring the owner of such indebtedness or obligation of the
74
ability of any other Person to make payment of the indebtedness or obligation;
or (d) otherwise to assure the owner of such indebtedness or obligation against
loss in respect thereof. In any computation of the indebtedness or other
liabilities of the obligor under any Guaranty, the indebtedness or other
obligations that are the subject of such Guaranty shall be assumed to be direct
obligations of such obligor;
(i) "Hazardous Materials" means any materials or wastes, defined,
listed, classified or regulated as hazardous, toxic, a pollutant, a contaminant
or dangerous in or under any Environmental Laws, including without limitation,
petroleum, petroleum products, friable asbestos, molds, urea formaldehyde,
radioactive materials and polychlorinated biphenyls;
(j) "Indebtedness" means, with respect to any Person, at any time,
without duplication, (a) its liabilities for borrowed money; (b) its liabilities
for the deferred purchase price of property acquired by such Person (excluding
accounts payable arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or other title
retention agreement with respect to any such property); (c) all liabilities
appearing on its balance sheet in accordance with GAAP in respect of capital
leases; (d) all liabilities for borrowed money secured by any Lien with respect
to any property owned by such Person (whether or not it has assumed or otherwise
become liable for such liabilities); (e) all its liabilities in respect of
letters of credit or instruments serving a similar function issued or accepted
for its account by banks and other financial institutions (whether or not
representing obligations for borrowed money); (f) interest rate swaps, currency
swaps and similar obligations of such Person; and (g) any Guaranty of such
Person with respect to liabilities of a type described in any of clauses (a)
through (f) hereof;
(k) "Intellectual Property" shall mean trademarks, service marks, brand
names, certification marks, logos and slogans, commercial symbols, business name
registrations, domain names, trade dress and other indications of origin, the
goodwill associated with the foregoing and registrations in any domestic or
foreign jurisdiction of, and applications in any such jurisdiction to register,
the foregoing, including any extension, modification or renewal of any such
registration or application; inventions, discoveries, whether patentable or
reduced to practice or not, in any domestic or foreign jurisdiction; patents,
applications for patents (including, without limitation, divisions,
continuations in part and renewal applications), and any renewals, extensions,
supplementary protection certificates or reissues thereof, in any such
jurisdiction; research and development data, formulae, know-how, technical
information, designs, procedures, customer and supplier lists, trade secrets and
confidential information and rights in any domestic or foreign jurisdiction to
limit the use or disclosure thereof by any Person; copyrights, writings and
other works, whether copyrightable or not, in any such jurisdiction; computer
software; and registrations or applications for registration of copyrights in
any domestic or foreign jurisdiction, and any renewals or extensions thereof;
and any similar intellectual property or proprietary rights;
(l) "Knowledge" means (i) in the case of Belden, the actual knowledge
of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, D. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ after
due inquiry, and (ii) in the case of CDT and Merger Sub, the actual knowledge of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
75
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ after due inquiry;
(m) "Material Adverse Change" or "Material Adverse Effect" means, when
used with respect to Belden or CDT, any change, event, violation, inaccuracy,
circumstance or effect (any such item, an "Effect") that, individually or when
taken together with all other Effects that have occurred prior to the date of
determination of the occurrence of the Material Adverse Change or Material
Adverse Effect, is or is reasonably likely (i) to be materially adverse to the
business, assets (including intangible assets), capitalization, financial
condition or results of operations of such party and its Subsidiaries taken as a
whole or (ii) to impair in any material respect the ability of such party to
perform its obligations under this Agreement or prevent or materially delay the
consummation by such party of any of the transactions contemplated hereby;
provided, however, that, in no event shall any of the following, alone or in
combination, be deemed to constitute, nor shall any of the following be taken
into account in determining whether there has been or will be, a Material
Adverse Change with respect to, or a Material Adverse Effect on, any party: (A)
any change in such party's stock price or trading volume, in and of itself, (B)
any failure by such party to meet published revenue or earnings projections, in
and of itself, (C) any Effect that results from changes affecting the cable and
connectivity product industries generally (to the extent such Effect is not
disproportionate with respect to such party in any material respect) or the
United States economy generally (to the extent such Effect is not
disproportionate with respect to such party in any material respect), (D) any
Effect that results from changes affecting general worldwide economic or capital
market conditions (to the extent such Effect is not disproportionate with
respect to such party in any material respect), (E) any Effect that results from
the public announcement or pendency of the Merger, or (F) any stockholder class
action litigation arising from allegations of a breach of fiduciary duty
relating to this Agreement;
(n) "Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity;
(o) a "Subsidiary" of any Person means another Person, an amount of the
voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body is (or, if there are no such voting interests, more than
fifty percent (50%) of the equity interests of which are) owned directly or
indirectly by such first Person; and
(p) a "Superior Proposal" with respect to a party, means an
unsolicited, bona fide written Alternative Transaction Proposal made by a third
party to acquire, directly or indirectly, pursuant to a tender offer, exchange
offer, merger, consolidation or other business combination, (A) fifty percent
(50%) or more of the assets of such party or fifty percent (50%) or more of the
outstanding voting securities of such party and as a result of which the
stockholders of such party immediately preceding such transaction would hold
less than fifty percent (50%) of the aggregate equity interests in the surviving
or resulting entity of such transaction (or its ultimate parent), which the
Board of Directors of such party has in good faith determined (taking into
account, among other things, (1) the advice of its outside legal counsel and its
financial adviser, (2) all terms of such Alternative Transaction Proposal and
this Agreement (as it may be proposed to be amended by the other party hereto),
and (3) the relative impact of the transaction contemplated by such Alternative
Transaction Proposal and this Agreement (as it may be
76
proposed to be amended by the other party hereto) on the other Persons whose
interests the Board of Directors of such party may consider under Applicable
Law) to be more favorable to such party's stockholders (in their capacities as
stockholders) than the terms of this Agreement (as it may be proposed to be
amended by the other party hereto) and to be reasonably capable of being
consummated on the terms proposed, taking into account, all other legal,
financial, regulatory and other aspects of such Alternative Transaction Proposal
and the Person making such Alternative Transaction Proposal; provided, however,
that no Alternative Transaction Proposal will be deemed to be a Superior
Proposal if consummation of the transaction contemplated thereby is subject to a
financing condition and the financing required to satisfy such condition is not
fully committed pursuant to a commitment letter or similar instrument from one
or more institutions which are capable of providing such financing.
SECTION 9.4 Interpretation. When a reference is made in this Agreement
to an Article, Section or Exhibit, such reference shall be to an Article or
Section of, or an Exhibit to, this Agreement unless otherwise indicated.
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. 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. All references to dollar amounts shall be to
lawful currency of the United States.
SECTION 9.5 Counterparts. This Agreement may be executed in two or more
counterparts, 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 9.6 Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the CDA and the documents and instruments referred to
herein) (a) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement and (b) except for the
provisions of Section 5.5 (which are intended to benefit the Indemnified
Parties, including Indemnified Parties who or which are not parties hereto), is
not intended to confer upon any Person other than the parties any rights or
remedies.
SECTION 9.7 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 conflict of
laws thereof.
77
SECTION 9.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by either of the parties hereto without
the prior written consent of the other party. Any assignment in violation of the
preceding sentence shall be void. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 9.9 Consent to Jurisdiction. 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 any
Delaware state court in the event any
dispute arises out of this Agreement or any of 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
any of the transactions contemplated by this Agreement in any court other than a
federal court sitting in the State of Delaware or a Delaware state court.
SECTION 9.10 Headings, etc. The headings and table of contents
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 9.11 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, insofar as the foregoing can be
accomplished without materially affecting the economic benefits anticipated by
the parties to this Agreement. 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 9.12 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 9.13 Waiver of Jury Trial. EACH OF CDT, MERGER SUB AND BELDEN
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HERBY OR THE ACTIONS
OF CDT, MERGER SUB OR BELDEN IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT.
SECTION 9.14 Specific Performance. 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
78
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 Delaware
state court, this being in addition to any other remedy to which they are
entitled at law or in equity.
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79
IN WITNESS WHEREOF, CDT, Merger Sub and Belden have caused this
Agreement to be executed under seal by their respective officers thereunto duly
authorized, all as of the date first written above.
CABLE DESIGN TECHNOLOGIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Director, Chief Executive Officer
--------------------------------
BC MERGER CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: President
--------------------------------
▇▇▇▇▇▇ INC.
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Chairman, President and CEO
--------------------------------