AGREEMENT AND PLAN OF MERGER Dated as of February 19, 2014 among SIGNET JEWELERS LIMITED, CARAT MERGER SUB, INC. and ZALE CORPORATION

ARTICLE I    The Merger		4
Section 1.1.	The Merger	4
Section 1.2.	Closing	4
Section 1.3.	Effective Time	5
Section 1.4.	Effects of the Merger	5
Section 1.5.	Certificate of Incorporation and Bylaws of the Surviving Corporation	5
Section 1.6.	Directors and Officers of the Surviving Corporation	5
ARTICLE II   Effect of the Merger on the Capital Stock of the Constituent Corporations; Exchange of Certificates; Company Stock Options		6
Section 2.1.	Effect on Capital Stock	6
Section 2.2.	Exchange of Certificates	7
Section 2.3.	Company Stock Options; Restricted Stock Units; Long-Term Incentive Awards; Restricted Shares; Deferred Stock Units	9
Section 2.4.	Restructure	13
ARTICLE III   Representations and Warranties of the Company		13
Section 3.1.	Organization, Standing and Corporate Power	14
Section 3.2.	Capitalization	15
Section 3.3.	Authority; Noncontravention; Voting Requirements	16
Section 3.4.	Governmental Approvals	17
Section 3.5.	Company SEC Documents; Undisclosed Liabilities	18
Section 3.6.	Absence of Certain Changes or Events	19
Section 3.7.	Legal Proceedings	20
Section 3.8.	Compliance With Laws; Permits	20
Section 3.9.	Information Supplied	21
Section 3.10.	Tax Matters	21
Section 3.11.	Employee Benefits and Labor Matters	22
Section 3.12.	Environmental Matters	26
Section 3.13.	Contracts	26

Section 3.14.	Title to Properties	28
Section 3.15.	Intellectual Property	30
Section 3.16.	Insurance and Warranties Issued	32
Section 3.17.	Supplier Relationships	33
Section 3.18.	Opinion of Financial Advisor	33
Section 3.19.	Brokers and Other Advisors	33
Section 3.20.	State Takeover Statutes	33
Section 3.21.	Foreign Corrupt Practices Act	33
Section 3.22.	No Dividend or Distribution Restrictions	34
Section 3.23.	Operations Insurance	34
Section 3.24.	Canadian Operations	34
ARTICLE IV   Representations and Warranties of Parent and Merger Sub		35
Section 4.1.	Organization, Standing and Corporate Power	35
Section 4.2.	Authority; Noncontravention	35
Section 4.3.	Governmental Approvals	36
Section 4.4.	Information Supplied	36
Section 4.5.	Ownership and Operations of Merger Sub	37
Section 4.6.	Brokers and Other Advisors	37
Section 4.7.	Legal Proceedings	37
Section 4.8.	Certain Arrangements	37
Section 4.9.	Financing	37
Section 4.10.	No Ownership of Company Common Stock	38
Section 4.11.	Canadian Operations	38
ARTICLE V   Additional Covenants and Agreements		38
Section 5.1.	Preparation of the Proxy Statement; Stockholder Meeting	38
Section 5.2.	Conduct of Business	39
Section 5.3.	No Solicitation	44
Section 5.4.	Reasonable Best Efforts	47
Section 5.5.	Financing	49
Section 5.6.	Public Announcements	51
Section 5.7.	Access to Information; Confidentiality	51
Section 5.8.	Notification of Certain Matters	52
Section 5.9.	Indemnification and Insurance	52

Section 5.10.	Securityholder Litigation	54
Section 5.11.	Fees and Expenses	54
Section 5.12.	Section 16 Matters	54
Section 5.13.	Employee Matters	54
Section 5.14.	Termination of Certain Agreements	56
Section 5.15.	Required Actions	56
ARTICLE VI   Conditions Precedent		56
Section 6.1.	Conditions to Each Party’s Obligation to Effect the Merger	56
Section 6.2.	Conditions to Obligations of Parent and Merger Sub	56
Section 6.3.	Conditions to Obligation of the Company	57
Section 6.4.	Frustration of Closing Conditions	57
ARTICLE VII     Termination		58
Section 7.1.	Termination	58
Section 7.2.	Effect of Termination	59
Section 7.3.	Termination Fees	60
ARTICLE VIII        Miscellaneous		62
Section 8.1.	No Survival, Etc.	62
Section 8.2.	Amendment or Supplement	63
Section 8.3.	Extension of Time, Waiver, Etc.	63
Section 8.4.	Assignment	63
Section 8.5.	Counterparts	64
Section 8.6.	Entire Agreement; No Third-Party Beneficiaries	64
Section 8.7.	Governing Law; Jurisdiction; Waiver of Jury Trial	64
Section 8.8.	Specific Enforcement	65
Section 8.9.	Notices	66
Section 8.10.	Severability	67
Section 8.11.	Definitions	67
Section 8.12.	Interpretation	76

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Parent and Merger Sub of the Transactions, have been duly authorized and approved by their respective Boards of Directors (and prior to the Effective Time will be adopted by Parent as the sole stockholder of Merger Sub) and no other corporate action on the part of Parent and Merger Sub is necessary to authorize the execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by them of the Transactions. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of each of Parent and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

 

 

 

 

hereunder, or prevent or materially impede, interfere with, hinder or delay the consummation of the Transactions.

 

 

 

 

 

 

 

Agreement) or (b) pursuant to which any stockholder of the Company would be entitled to receive consideration of a different amount or nature than the Merger Consideration.

 

 

 

 

ARTICLE V

 

 

 

 

 

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 be promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of the Company. The Company shall notify Parent promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement or the Merger.

 

 

 

 

 

permitted by this Agreement or as required by applicable Law, during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any of its Subsidiaries to, unless Parent otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed):

 

 

 

 

issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its Subsidiaries, other than (A) revolving credit borrowings by the Company and the other borrowers under the existing credit agreement listed as Item 1 on Section 3.13(a)(i) of the Company Disclosure Schedule (the “Existing Revolver Facility”) and issuances of letters of credit thereunder in the ordinary course of business in amounts not in excess of $500,000,000 in the aggregate outstanding at any time under the Existing Revolver Facility and guarantees of such borrowings to the extent required under the terms of such Existing Revolver Facility, and (B) borrowings from or guarantees among the Company and the direct and indirect wholly owned Subsidiaries of the Company in the ordinary course of business consistent with past practice;

 

 

 

 

 

 

consent of any third party in order to continue in full force following, consummation of the Transactions or (C) release any Person from, or modify or waive any provision of, any standstill or similar agreement, or any material standalone confidentiality agreement in favor of the Company;

 

 

 

 

(x)          (A) make, change or revoke any material election concerning Taxes or Tax Returns, file any material amended Tax Return, enter into any material closing agreement pursuant to Section 7121 of the Code (or any similar provision of Law), file any Tax Return unless such Tax Return shall have been prepared consistent with past practice, settle any Tax claims or assessments that require payment in excess of $1,000,000 in any single instance or $5,000,000 in

 

the aggregate, surrender any right to claim a refund of Taxes or obtain any Tax ruling or (B) become a party to any Tax sharing, allocation, indemnity or similar agreement or arrangement (whether written or oral) involving the Company or any of its Subsidiaries;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

indicate the identity of the Person making such Takeover Proposal and the terms and conditions of such Takeover Proposal (and include a copy of any written Takeover Proposal where applicable), and thereafter shall promptly keep Parent reasonably informed of all material developments affecting the status and terms of any such Takeover Proposal (and the Company shall provide Parent with copies of any additional material written materials received that relate to such Takeover Proposal).

 

 

 

 

 

clause (1), make such Company Adverse Recommendation Change (a “Company Adverse Recommendation Notice”), or in the case of clause (2), terminate this Agreement in accordance with Section 5.3(d) (a “Notice of Superior Proposal”), which notice shall specify (I) in the case of such an action taken in connection with a Superior Proposal, the terms and conditions of such Superior Proposal (including the identity of the Person making such Superior Proposal and a copy of the then-current forms of all of the relevant proposed transaction documents related thereto, including definitive agreements with respect to such Superior Proposal and the documents with respect to any financing of such Superior Proposal provided to the Company in respect thereof), or (II) if the basis of the proposed action by the Board of Directors of the Company is an Intervening Event, a description of the Intervening Event, and (y) unless the Company shall have (A) during the four (4) Business Day period specified above (and any additional period related to a revision to the Superior Proposal, as provided below), negotiated, and caused its financial and legal advisors to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) with respect to proposed adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal (or, in the case of a Company Adverse Recommendation Notice that is not related to a Superior Proposal, so that the failure to make such Company Adverse Recommendation Change is no longer a breach by the Board of Directors of the Company of its fiduciary duties to the stockholders under Delaware Law); and (B) prior to or concurrently with a termination of this Agreement pursuant to Section 5.3(d), paid the Company Termination Fee required under Section 7.3(a)(iii).

 

 

 

 

constitute a breach of another provision of this Section 5.3 (unless at the time of the taking of any such action under this Section 5.3(f), the Board of Directors of the Company publicly reaffirms its Company Board Recommendation to its stockholders in favor of the Merger).

 

 

 

 

 

 

parties informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions. Subject to applicable Laws relating to the exchange of information, each of the parties hereto shall have the right to review in advance, and to the extent practicable each will consult the other parties on, all the information relating to the other parties and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Authority in connection with the Transactions. Each of Merger Sub, Parent and the Company agree not to participate in substantive meetings or discussions, either in person or by telephone, with any Governmental Authority in connection with the proposed transactions unless, to the extent reasonably practicable, it consults with the other parties in advance and, to the extent not prohibited by such Governmental Authority, gives the other parties the opportunity to attend and participate.

 

 

 

 

excess of $135.0 million, as measured by the Company’s fiscal year 2013 revenue and as reported in the Company’s audited financial statements for such year, or (ii) the loss of sales of Parent in excess of $135.0 million, as measured by Parent’s fiscal year 2013 sales and as reported in Parent’s audited financial statements for such year, or (iii) the combination of losses of revenues contemplated in clause (i) and sales contemplated in clause (ii) in excess of $135.0 million in the aggregate.

 

 

 

 

the Company’s trademarks, service marks and corporate logo for use in marketing materials for the purpose of facilitating the Financing (the “License”); provided, however, that the License shall be used solely for the purpose described above and may not be assigned or transferred by such Financing Sources. Notwithstanding anything in this Agreement to the contrary, none of the Company or any of its Subsidiaries shall be required to (A) pay any commitment or other similar fee or incur any other liability or obligation of any kind, including under any guarantee or pledge or any other document relating to the Financing, in connection with the Financing prior to the Closing Date or (B) enter into any binding agreement or commitment, or adopt any resolution or otherwise take any corporate or similar action, in connection with the Financing that is not conditioned on the occurrence of the Closing Date. The cooperation requested of the Company and its Subsidiaries shall not unreasonably interfere with ongoing operations of the Company and its Subsidiaries or otherwise materially impair the ability of any officer or executive of the Company to carry out its duties to the Company. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 5.5 and shall indemnify and hold harmless the Company, the Subsidiaries of the Company and their respective directors and other Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Financing and any information used in connection therewith (except with respect to information provided by the Company or any of its Subsidiaries), and any action taken by any of them at the request of Parent or Merger Sub pursuant to this Section 5.5(a), except, in each case, to the extent such losses, damages, claims, costs or expenses arose from the gross negligence, willful misconduct or bad faith of the Company or any of its Subsidiaries.

 

 

 

 

substance reasonably satisfactory to Parent from all financial institutions and other Persons to which such indebtedness is owed, or the applicable agent, trustee or other representative on behalf of such Persons, which Payoff Letters shall (x) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or other outstanding and unpaid obligations related to such indebtedness as of the Closing Date (the “Payoff Amount”) and (y) state that all obligations (including guarantees) in respect thereof and Liens in connection therewith on the assets of the Company or any of its Subsidiaries or otherwise on the business of the Company shall be, substantially concurrently with the receipt of the Payoff Amount on the Closing Date by the Persons holding such indebtedness, released or arrangements reasonably satisfactory to Parent for such release shall have been made by such time, subject, as applicable, to the replacement (or cash collateralization or backstopping) of any then outstanding letters of credit or similar indebtedness.

 

 

 

 

for the Surviving Corporation and its Subsidiaries after the Merger. Notwithstanding the foregoing, neither the Company or any of its Subsidiaries shall be required to provide access to or disclose information if the Company reasonably determines that such access or disclosure would (i) jeopardize the attorney-client privilege of the Company or any of its Subsidiaries or the protections of the work-product doctrine, (ii) contravene any Law or violate a Contract to which the Company or any of its Subsidiaries is a party, or (iii) expose the Company to risk of liability for disclosure of sensitive or personal information; provided that, in any such case, the Company or its Subsidiary, as applicable, shall provide such information in redacted form as necessary to preserve such privilege or comply with such Law or otherwise make appropriate substitute disclosure arrangements, to the extent possible. Except for disclosures expressly permitted by the terms of the confidentiality letter agreement dated as of December 20, 2013, between Parent and the Company (as such agreement may be amended from time to time, the “Confidentiality Agreement”), each of the Company and Parent shall hold, and shall cause their respective officers, employees, accountants, counsel, financial advisors and other Representatives to hold, all information received from the other party or its Representatives, directly or indirectly, in confidence in accordance with the Confidentiality Agreement. No information or knowledge obtained by any Person in any investigation pursuant to this Section 5.7 shall affect or be deemed to modify any representation or warranty made by any party hereto.

 

 

 

 

 

 

occurring prior to the Effective Time that were committed by such officers and directors in their capacity as such for six (6) years from the Effective Time, covering each such person on terms with respect to coverage and amounts and containing terms and conditions that are not less advantageous than the policies currently in effect on the date of this Agreement; provided, however, that, without the prior written consent of Parent, the Company may not expend per year of coverage more than 250% of the amount currently expended by the Company per year of coverage as of the date of this Agreement (the “Maximum D&O Amount”) to maintain or procure such “tail” insurance policies. In the event the Company does not obtain such “tail” insurance policies, then, Parent shall cause the individuals serving as officers and directors of the Company immediately prior to the Effective Time who are then covered by the directors’ and officers’ liability insurance policy currently maintained by the Company (a correct and complete copy of which has heretofore been delivered to Parent) to be covered for a period of six (6) years from the Effective Time by such policy (provided that Parent may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are not less advantageous than such policy) with respect to acts or omissions occurring prior to the Effective Time that were committed by such officers and directors in their capacity as such; provided, that in no event shall Parent be required to expend per year of coverage more than the Maximum D&O Amount. If notwithstanding the use of reasonable best efforts to do so, Parent or the Company, as applicable, is unable to maintain or obtain the insurance called for by this paragraph, Parent or the Company, as applicable, shall obtain as much comparable insurance as available for the Maximum D&O Amount. The Indemnitees may be required to make reasonable application and provide reasonable and customary representations and warranties to applicable insurance carriers for the purpose of obtaining such insurance.

 

 

 

 

 

maintain or obtain the insurance called for by this paragraph, the Company shall obtain as much comparable insurance as available for the Maximum EPL Amount.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE VI

 

 

 

 

 

 

 

 

 

such time, (iii) the representations and warranties of the Company contained in the first three sentences of Section 3.2(b) (Capitalization), Section 3.2(c) (Capitalization), Section 3.3(a) (Authority; Noncontravention; Voting Requirements), Section 3.19 (Brokers and Other Advisors) and Section 3.20 (State Takeover Statutes) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) in all material respects at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), and (iv) all other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) has not had a Company Material Adverse Effect, and Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect; and

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

provisions of the first sentence of Section 3.19, the penultimate sentence of Section 5.7, Sections 5.11, 7.2 and 7.3, and Article VIII, all of which shall survive termination of this Agreement), and there shall be no liability on the part of Parent, Merger Sub or the Company or their respective directors, officers and Affiliates, except (i) as liability may exist pursuant to the Sections specified in the immediately preceding parenthetical that survive such termination, and (ii) nothing shall relieve any party from liability for fraud or any willful breach of this Agreement.

 

 

 

 

 

 

 

 

 

related to the authorization, preparation, negotiation, execution and performance of this Agreement, the filing of any required notices under applicable Antitrust Laws or other regulations in connection with the Transactions and all other matters related to the Merger and the other Transactions. For purposes of this Section 7.3(a), the term “Takeover Proposal” shall have the meaning assigned to such term, except that the references to “20% or more” shall be deemed to be references to “50% or more”.

 

 

 

 

 

to be satisfied at the Closing, and were capable of being satisfied or would have been satisfied if the Closing would have occurred on the date of such termination), then Parent shall pay to the Company a termination fee of $53.4 million in cash (the “Parent Termination Fee”).

 

 

 

ARTICLE VIII

 

 

 

 

may be, except that the agreements set forth in Article II and Sections 5.9 and 5.11 and any other agreement in this Agreement which contemplates performance after the Effective Time shall survive the Effective Time indefinitely. The Confidentiality Agreement shall (i) survive termination of this Agreement in accordance with its terms and (ii) terminate as of the Effective Time.

 

 

 

 

 

assigns. Any purported assignment not permitted under this Section 8.4 shall be null and void.

 

 

 

 

 

 

 

the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware or, in the event each federal court within the State of Delaware declines to accept jurisdiction over a particular matter, any state court within the State of Delaware). In addition, each of the parties hereto (i) consents to submit itself, and hereby submits itself, to the exclusive jurisdiction and venue of such courts in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (ii) 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 agrees not to plead or claim any objection to the laying of venue in any such court or that any judicial proceeding in any such court has been brought in an inconvenient forum, (iii) 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 the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware or, in the event each federal court within the State of Delaware declines to accept jurisdiction over a particular matter, any state court within the State of Delaware) and (iv) consents to service of process being made through the notice procedures set forth in Section 8.9. The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

 

 

 

 

 

 

transactions contemplated by this Agreement and without that right, neither the Company nor Parent would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. If, prior to the End Date, any party hereto brings any Action, in accordance with Section 8.7, to enforce specifically the performance of the terms and provisions hereof by any other party, the End Date shall automatically be extended (x) for the period during which such Action is pending, plus 10 Business Days or (y) by such other time period established by the court presiding over such Action, as the case may be.

 

 

If to Parent, to:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

negotiate with the Company and may not restrict the Company from complying with Section 5.3 of this Agreement.

 

 

 

 

 

 

 

 

 

disasters or other force majeure events; (e) changes in any Laws or regulations applicable to the Company or applicable accounting regulations or principles or the interpretation thereof; (f) any failure by the Company to meet any internal or analyst projections or forecasts or estimates of revenues, earnings or other financial metrics for any period (it being understood that the facts and circumstances giving rise to such failure may be deemed to constitute, and may be taken into account in determining whether there has been or would reasonably be expected to be, a Company Material Adverse Effect if such facts and circumstances are not otherwise described in clauses (a) through (e) and (g) of this definition); or (g) any action taken by the Company or its Subsidiaries that is required by this Agreement or taken at Parent’s written request, or the failure to take any action by the Company or its Subsidiaries if that action is prohibited by this Agreement; provided, however, that changes, effects, events or occurrences referred to in clauses (a), (d) and (e) above shall be considered for purposes of determining whether there has been or would reasonably be expected to be a Company Material Adverse Effect if and to the extent such changes, effects, events or occurrences have had or would reasonably be expected to have a materially disproportionate adverse effect on the Company and its Subsidiaries, as compared to (i) with respect to clause (a), other companies with similar capital structures operating in the industries in which the Company and its Subsidiaries operate and (ii) with respect to clauses (d) and (e), other companies operating in the industries in which the Company and its Subsidiaries operate, in which case, with respect to each of clauses (a), (d) and (e), only the incremental disproportionate impact may be taken into consideration in determining whether or not there has been, or may be, a Company Material Adverse Effect).

 

 

 

 

violation of Environmental Law, whether known or unknown, accrued or contingent, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, in each case to the extent based upon, related to, or arising under or pursuant to any Environmental Law, any environmental permit, or any order or legally binding agreement with any Governmental Authority, which relates to any environmental, health or safety condition, violation of Environmental Law or a Release or threatened Release of Hazardous Materials.

 

 

 

 

 

 

 

 

 

 

United States or any foreign jurisdiction: (A) patents, patent applications, any reissues, reexaminations, divisionals, continuations, continuations-in-part and extensions thereof (collectively, “Patents”); (B) trademarks, service marks, trade names (whether registered or unregistered), service names, industrial designs, brand names, brand marks, trade dress rights, Internet domain names, identifying symbols, logos, emblems, signs or insignia, and including all goodwill associated with the foregoing (collectively, “Marks”); (C) copyrights, whether registered or unregistered (including copyrights in computer software programs), mask work rights and registrations and applications therefor (collectively, “Copyrights”); (D) confidential and proprietary information, or non-public processes, designs, specifications, technology, know-how, techniques, formulas, inventions, concepts, trade secrets, discoveries, ideas and technical data and information, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Copyrights or Patents (collectively, “Trade Secrets”); and (E) all applications, registrations and permits related to any of the foregoing clauses (A) through (D).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

circumstances deemed to be relevant in good faith by the Board of Directors, is reasonably likely to be consummated in accordance with its terms, taking into account all material financial, regulatory, legal and other aspects of such proposal and the Person making the proposal, if accepted; provided that for purposes of the definition of “Superior Proposal”, the references to “20%” in the definition of Takeover Proposal shall be deemed to be references to “50%”.

 

 

 

 

 

SECTION 8.12.  Interpretation.

 

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.