AGREEMENT AND PLAN OF MERGER by and among WINDY CITY INVESTMENTS, INC. WINDY CITY ACQUISITION CORP. and NUVEEN INVESTMENTS, INC. Dated as of June 19, 2007
Exhibit
2.1
EXECUTION
VERSION
AGREEMENT
AND PLAN OF MERGER
by
and
among
WINDY
CITY INVESTMENTS, INC.
WINDY
CITY ACQUISITION CORP.
and
NUVEEN
INVESTMENTS, INC.
Dated
as
of June 19, 2007
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is entered into as of
June 19, 2007 by and among Windy City Investments, Inc., a
Delaware corporation (“Parent”), Windy City
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of
Parent
(“Merger Sub”), and Nuveen Investments, Inc., a Delaware corporation
(the “Company”). Capitalized terms used herein shall have
their respective meanings set forth in Section 1.1 hereof.
RECITALS
WHEREAS,
the parties intend that Merger Sub be merged with and into the Company (the
“Merger”), with the Company surviving the Merger as a wholly owned
subsidiary of Parent (the “Surviving Corporation”). The name
of the Surviving Corporation shall be Nuveen Investments, Inc.;
WHEREAS,
the board of directors of the Company (the “Company Board”), acting upon
the recommendation of the Special Committee, has (i) determined that it is
in
the best interests of the Company and its stockholders, and declared it
advisable, to enter into this Agreement, (ii) approved the execution, delivery
and performance by the Company of this Agreement and the consummation of
the
transactions contemplated hereby, including the Merger, and (iii) resolved
to
recommend that the stockholders of the Company adopt this
Agreement;
WHEREAS,
the board of directors and stockholders of each of Parent and Merger Sub
have
approved and adopted this Agreement and declared it advisable for Parent
and
Merger Sub, respectively, to enter into this Agreement;
WHEREAS,
concurrently with the execution of this Agreement, and as a condition and
inducement to the Company’s willingness to enter into this Agreement, each of
the Guarantors is entering into a limited guarantee (each, a “Guarantee”)
in favor of the Company with respect to certain of Parent’s obligations under
this Agreement; and
WHEREAS,
the parties desire to make certain representations, warranties, covenants
and
agreements in connection with the Merger and also to prescribe certain
conditions to the Merger, as set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and of the representations,
warranties, covenants and agreements contained in this Agreement, the parties,
intending to be legally bound, agree as follows:
DEFINITIONS
Section
1.1 Certain
Definitions. For purposes of this Agreement, the following terms
have the following meanings when used herein with initial capital
letters:
(1) “12b-1
Plan” means any distribution plan adopted by a Public Fund in accordance
with Rule 12b-1 under the Investment Company Act.
(2) “Acceptable
Confidentiality Agreement” means a confidentiality agreement with any Person
that contains confidentiality provisions that are not materially less
restrictive in the aggregate to such Person than those provisions contained
in
the Confidentiality Agreement are to Madison Dearborn Partners,
LLC.
(3) “Acquiror
Disclosure Letter” has the meaning set forth in
Article IV.
(4) “Adjusted
Assets Under Management” means, for any Client as of any date, the amount of
assets under management, expressed in U.S. dollars, by the Company or any
Subsidiary for such Client as of the Base Date, as adjusted, for purposes
of
determining whether the Revenue Run-Rate Requirement is satisfied, (a) to
reflect net cash flows (additions and withdrawals and, with respect to Public
Funds, exclusive of dividends or distributions or reinvestment of dividends
or
distributions), new accounts and terminated accounts or accounts for which
the
Company or any Subsidiary has received notification of termination (which
notification has not been withdrawn prior to the date of determination) from
and
after the Base Date through the last Business Day of the most recently completed
month (or, in the case of any Specified Symphony Fund, the date determined
by
reference to the entry under the caption “Adjusted Assets Under Management
Calculation Date” set forth opposite such Specified Symphony Fund’s name in
Section 1.1(c) of the Company Disclosure Letter) prior to such day, (b) to
exclude any increase or decrease in assets under management due to market
appreciation or depreciation or currency fluctuations from and after the
Base
Date and (c) to exclude any Client accounts that require a Public Fund Consent
or a Non-Public Fund Client Consent and with respect to which the Company
or the
applicable Subsidiary shall not have obtained (or shall not be deemed to
have
obtained as contemplated by Section 5.14) a Public Fund Consent or
Non-Public Fund Client Consent, as the case may be, as of such date;
provided that (i) any assets under management for any account for which
any Person or any of its Affiliates acts as investment adviser and sub-adviser
shall be counted only once, (ii) any assets under management for any set
of
accounts one of which invests in the other shall be counted only once if
any
Person or any of its Affiliates acts as investment adviser to both and (iii)
any
assets under an Investment Advisory Arrangement entered into under Rule 15a-4
of
the Investment Company Act shall not be counted.
(5) “Advisers
Act” means the Investment Advisers Act of 1940, as amended, and the rules
and regulations promulgated thereunder by the SEC.
(6) “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly
controls, is controlled by or is under common control with, such first Person;
provided, that no Private Fund or Public Fund shall be deemed to be an
Affiliate of the Company or any of its Subsidiaries. For the purposes
of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as applied to
any Person, means the possession, directly or indirectly, of the power to
direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities, by Contract or
otherwise.
(7) “Affiliate
Transaction” has the meaning set forth in Section 3.21.
(8) “Agreement”
has the meaning set forth in the Preamble.
(9) “Aggregate
Base Revenue Run-Rate” means the Revenue Run-Rate of the Company and its
Subsidiaries as of the Base Date.
(10) “Alternative
Acquisition Agreement” has the meaning set forth in
Section 5.3(e).
(11) “Antitrust
Division” has the meaning set forth in Section 5.8(a).
(12) “Base
Date” means May 31, 2007 (or, in the case of any Specified Symphony Fund,
the date set forth opposite such Specified Symphony Fund’s name under the
caption “Base Date” in Section 1.1(c) of the Company Disclosure
Letter).
(13) “Book-Entry
Shares” has the meaning set forth in Section 2.2(c).
(14) “Broker-Dealer
Subsidiary” has the meaning set forth in Section 3.7(e).
(15) “Business
Day” means any day, other than Saturday, Sunday or a day on which banking
institutions in Chicago, Illinois are generally closed.
(16) “Certificate”
has the meaning set forth in Section 2.2(c).
(17) “Certificate
of Merger” has the meaning set forth in Section 2.1(b).
(18) “Client”
of a Person means any other Person to which such Person or any of its Affiliates
provides investment management or investment advisory services, including
any
sub-advisory services, relating to securities or other financial instruments,
commodities, real estate or any other type of asset, pursuant to an Investment
Advisory Arrangement.
(19) “Closing”
has the meaning set forth in Section 2.1(d).
(20) “Closing
Date” has the meaning set forth in Section 2.1(d).
(21) “COBRA”
has the meaning set forth in Section 3.13(f).
(22) “Code”
means the Internal Revenue Code of 1986, as amended.
(23) “Committee
Financial Advisor” has the meaning set forth in Section
3.19.
(24) “Common
Stock” has the meaning set forth in the Section 3.3(a).
(25) “Company”
has the meaning set forth in the Preamble.
(26) “Company
401(k) Plan” means the Nuveen Investments, LLC Employees’
401(k)/Profit-Sharing Plan as in effect from time to time.
(27) “Company
Benefit Plan” means each employment or consulting agreement with respect to
which the Company or any of its Subsidiaries is a party and each “employee
benefit plan” within the meaning of Section 3(3) of ERISA, including each
multiemployer plan within the meaning of Section 3(37) of ERISA, and each
other
stock purchase, stock option, restricted stock, severance, retention,
employment, consulting, change-of-control, bonus, incentive (equity-based
or
otherwise), deferred compensation, employee loan, welfare benefit, fringe
benefit and other benefit plan, agreement, program, policy, commitment or
other
arrangement, whether or not subject to ERISA, in each case sponsored, maintained
or contributed to, or required to be sponsored, maintained or contributed
to, by
the Company or any of its Subsidiaries or with respect to which the Company
or
any of its Subsidiaries has any liability, other than any plan, agreement,
program, policy, commitment or other arrangement mandated by applicable Law;
provided that the term “Company Benefit Plan” shall not include
any employee benefit plan that would otherwise be considered to be a Company
Benefit Plan solely because the Company or its Subsidiaries has liability
with
respect to it because of its status as a past, present or future Client of
the
Company or any of its Subsidiaries.
(28) “Company
Board” has the meaning set forth in the Recitals.
(29) “Company
Board Recommendation” has the meaning set forth in
Section 3.2(a).
(30) “Company
Certificate” means the Company’s Restated Certificate of Incorporation, as
amended.
(31) “Company
Disclosure Letter” has the meaning set forth in
Article III.
(32) “Company
Material Adverse Effect” means any fact, event, circumstance, development,
change, occurrence or effect that, individually or in the aggregate with
all
other facts, events, circumstances, developments, changes, occurrences or
effects, (i) is materially adverse to the business, financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole,
other than any fact, event, circumstance, development, change, occurrence
or
effect to the extent relating to: (A) (1) the economic, business, financial
or
regulatory environment generally affecting the investment management industry
to
the extent such fact, event, circumstance, development, change, occurrence
or
effect does not have a materially disproportionate effect on the Company,
(2) an
act of terrorism or an outbreak or escalation of hostilities or war (whether
declared or not declared) or any natural disasters or any national or
international calamity or crisis affecting the United States to the extent
such
fact, event, circumstance, development, change, occurrence or effect does
not
have a materially disproportionate effect on the Company, (3) changes in
applicable Law or GAAP or the enforcement thereof after the date hereof to
the
extent such change or enforcement thereof does not have a materially
disproportionate effect on the Company, (4) any reduction in the level of
assets
under management or revenue run rate of the Company in and of itself (for
the
avoidance of doubt, any underlying cause for any such reduction shall not
be
excluded by this clause (4)), (5) the failure of the Company to meet analysts’
expectations, projections or forecasts or changes in the market price or
trading
volume of the Company’s securities, in each case, in and of itself (for the
avoidance of doubt, any underlying cause for any such failure or changes
shall
not be excluded by this clause (5)), (6) any failure of the Company to take
any
action referred to in Section 5.1 due to Parent’s withholding of consent
following written notice from the Company that the withholding of such consent
would reasonably be expected to have a Company Material Adverse Effect
(determined in accordance in accordance with the balance of this definition),
or
(7) any litigation arising from or relating to allegations of a breach of
any
fiduciary duty relating to this Agreement or the transactions contemplated
hereby, or (B) the public announcement or pendency of this Agreement or the
performance of and compliance with the terms of this Agreement, including
losses
or threatened losses of the relationships of the Company or any of its
Subsidiaries with any Clients or the loss or departure of any officers or
employees of the Company or any of its Subsidiaries; or (ii) that prevents
or
materially delays or materially impairs the ability of the Company to consummate
the Merger by the Outside Date.
(33) “Company
Organizational Documents” means the certificates of incorporation and
bylaws (or the equivalent organizational documents) of the Company and each
of
its Subsidiaries, in each case as in effect on the date of this
Agreement.
(34) “Company
Proxy Statement” has the meaning set forth in Section
3.5.
(35) “Company
RSU” means a restricted stock unit award with respect to shares of Common
Stock granted by the Company under the Company Stock Plans or
otherwise.
(36) “Company
Restricted Shares” means, as of a particular date, shares of Common Stock
granted by the Company under the Company Stock Plans or otherwise that are
then
outstanding but at such time are subject to forfeiture conditions or other
lapse
restrictions.
(37) “Company
SEC Documents” has the meaning set forth in Section
3.8(a).
(38) “Company
Stock Option” means an option to acquire shares of Common Stock from the
Company granted by the Company under a Company Stock Plan or
otherwise.
(39) “Company
Stock Plans” means the Company’s 1996 Equity Incentive Award Plan and the
Company’s 2005 Equity Incentive Plan, in each case as in effect from time to
time.
(40) “Company
Stockholders Meeting” has the meaning set forth in
Section 3.5.
(41) “Company
Termination Fee” means $200,000,000 except in the event the Company
Termination Fee becomes payable in connection with a transaction, or Alternative
Acquisition Agreement entered into, with an Excluded Party prior to the Excluded
Party Period End-Time, in which case Company Termination Fee shall mean
$100,000,000.
(42) “Confidentiality
Agreement” means that certain confidentiality letter agreement by and
between the Company and Madison Dearborn Partners, LLC, dated as of May 24,
2007, and any joinders thereto approved by the Company and executed by financing
sources, or potential financing sources, prior to the date of this
Agreement.
(43) “Continuation
Period” means the period from the Effective Date through the first
anniversary of the Effective Time.
(44) “Contract”
means any contract, agreement, license, note, bond, mortgages, indenture,
commitment, lease or other instrument or obligation, whether written or
oral.
(45) “Debt
Financing” has the meaning set forth in Section 4.6.
(46) “Debt
Financing Commitments” has the meaning set forth in Section
4.6.
(47) “DGCL”
has the meaning set forth in Section 2.1(a).
(48) “Dissenting
Shares” has the meaning set forth in Section 2.4.
(49) “Dissenting
Stockholder” has the meaning set forth in Section 2.4.
(50) “Effective
Time” has the meaning set forth in Section 2.1(b).
(51) “Employee
Benefits” has the meaning set forth in Section 5.6(c).
(52) “Employees”
has the meaning set forth in Section 5.6(c).
(53) “Equity
Award Amounts” has the meaning set forth in Section
2.5(d).
(54) “Equity
Financing” has the meaning set forth in Section 4.6.
(55) “Equity
Financing Commitments” has the meaning set forth in
Section 4.6.
(56) “ERISA”
means the Employment Retirement Income Security Act of 1974, as
amended.
(57) “Exchange
Act” has the meaning set forth in Section 3.5.
(58) “Excluded
Party Period End-Time” means 5:00 p.m., New York City time, on the date
which is 30 days after the date on which the Solicitation Period End-Time
occurred; provided that if at the Solicitation Period End-Time no Person
is an Excluded Party, the Excluded Party Period End-Time shall be the
Solicitation Period End-Time.
(59) “Excluded
Party” has the meaning set forth in Section 5.3(b)(ii).
(60) “Excluded
Share(s)” has the meaning set forth in Section 2.2(b).
(61) “Filed
Company SEC Documents” has the meaning set forth in Article
III.
(62) “Financing”
has the meaning set forth in Section 4.6.
(63) “Financing
Commitments” has the meaning set forth in Section 4.6.
(64) “Foreign
Merger Control Laws” has the meaning set forth in Section
3.5.
(65) “FTC”
has the meaning set forth in Section 5.8(a).
(66) “Fund”
means any Public Fund or Private Fund.
(67) “GAAP”
has the meaning set forth in Section 3.8(b).
(68) “Guarantee”
has the meaning set forth in the Recitals.
(69) “Guarantors”
means each of Madison Dearborn Capital Partners V-A, L.P. and its
affiliated funds party to its Guarantee, MLGPE U.S. Strategies LLC, Wachovia
Capital Partners 2007, LLC and Deutsche Bank Investment Partners,
Inc.
(70) “Governmental
Entity” has the meaning set forth in Section 3.5.
(71) “HSR
Act” has the meaning set forth in Section 3.5.
(72) “Indemnified
Parties” has the meaning set forth in Section 5.7(a).
(73) “Indemnifying
Party” has the meaning set forth in Section 5.7(a).
(74) “Intellectual
Property” means all United States and foreign (i) inventions or discoveries
(whether patentable or unpatentable and whether or not reduced to practice),
all
improvements thereto, and patents, patent applications, and patent disclosures,
including all reissuances, continuations, continuations-in-part, revisions,
extensions, and reexaminations thereof; (ii) trade names, trade dress, logos,
slogans, brand names, corporate names, domain names, trademarks, service
marks
and other source indicators, including all registrations, registration
applications, and renewals thereof and all goodwill associated therewith;
(iii)
copyrightable works (including files, computer programs, software, firmware,
Internet site content, databases and compilations, advertising and promotional
materials), copyrights and copyright registrations and registration applications
and renewals thereof; and (iv) trade secrets and confidential, proprietary,
or
non-public business information (including ideas, research and development,
know-how, technology, formulas, compositions, manufacturing and production
processes and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals); (v) computer software programs and software
systems (including databases, compilations, tool sets, compilers, higher
level
or “proprietary” languages and related documentation and materials, whether in
source code, object code or human readable form); and (vi) all other
Intellectual Property, in any medium, including digital, and in any
jurisdiction.
(75) “Investment
Advisory Arrangement” means a Contract under which a Person acts as an
investment adviser or sub-adviser to, or manages any investment or trading
account of, any Client.
(76) “Investment
Advisor Subsidiaries” has the meaning set forth in
Section 3.7(d).
(77) “Investment
Company Act” means the Investment Company Act of 1940, as amended, and the
rules and regulations promulgated thereunder by the SEC.
(78) “IRS”
has the meaning set forth in Section 3.13(a).
(79) “Knowledge”
means, when used with respect to Parent, Merger Sub or the Company, the actual
knowledge of the Persons set forth in Section 1.1(a) of the Acquiror
Disclosure Letter or the Company Disclosure Letter, respectively.
(80) “Laws”
means any domestic or foreign laws, statutes, ordinances, rules (including
rules
of common law), regulations, codes, executive orders or legally enforceable
requirements enacted, issued, adopted, promulgated or applied by any
Governmental Entity that are applicable to the Persons or Persons
referenced.
(81) “Legal
Action” has the meaning set forth in Section 3.11.
(82) “Liens”
means any mortgages, deeds of trust, liens (statutory or other), pledges,
security interests, collateral security arrangements, conditional and
installment agreements, claims, covenants, conditions, restrictions,
reservations, options, rights of first offer or refusal, charges, easements,
rights-of-way, encroachments, third party rights or other encumbrances or title
imperfections or defects of any kind or nature.
(83) “Marketing
Period” means the first period of 25 consecutive calendar days after the
date of this Agreement (A) throughout and at the end of which (1) Parent
and its
Financing sources shall have the Required Financial Information and (2) nothing
has occurred and no condition exists that would cause any of the conditions
set
forth in Section 6.2(a) and 6.2(b) (other than the receipt of
the certificates referred to therein) to fail to be satisfied assuming the
Closing were to be scheduled for any time during such 25 calendar day period
and
(B) throughout and at the end of which the conditions set forth in Section
6.1 and Section 6.2(c) shall be satisfied; provided that
(1) the Marketing Period shall end on any earlier date that is the date on
which
the Debt Financing is consummated; (2) for purposes of calculating such 25
calendar day period, August 17, 2007 through September 3, 2007, November
21,
2007 through November 25, 2007 and December 20, 2007 through January 1, 2008
shall not be counted or taken into account; (3) the “Marketing Period” shall not
be deemed to have commenced if, prior to the completion of the Marketing
Period,
(i) the Company’s independent registered public accounting firm shall have
withdrawn its audit opinion with respect to any audited financial statements
contained in the Required Financial Information, in which case the Marketing
Period will not be deemed to commence unless and until a new unqualified
audit
opinion is issued with respect to the audited consolidated financial statements
for the applicable periods by the Company’s independent registered public
accounting firm or another nationally recognized independent registered
accounting firm or (ii) in connection with the Debt Financing, the Company’s
independent registered public accounting firm does not consent to the use
of
their audit opinions with respect to any Required Financial Information audited
by such firm, in which case the Marketing Period will not be deemed to commence
unless and until the Company’s independent registered public accounting firm
consents to the use of their audit opinions with respect to such Required
Financial Information; and (4) if the financial statements included in the
Required Financial Information that is available to Parent on the first day
of
any such 25 calendar day period would not be sufficiently current on any
day
during such 25 calendar day period to permit (i) a registration statement
using
such financial statements to be declared effective by the SEC on the last
day of
such 25 calendar day period or (ii) the Company’s independent registered public
accounting firm to issue a customary comfort letter to purchasers (in accordance
with its normal practices and procedures) on the last day of the 25 calendar
day
period, then a new 25 calendar day period shall commence upon Parent receiving
updated Required Financial Information that would be sufficiently current
to
permit the actions described above in this clause (4) on the last day of
such 25
calendar day period.
(84) “Material
Contract” has the meaning set forth in Section 3.12(a).
(85) “Measurement
Date” has the meaning set forth in Section 3.3(a).
(86) “Merger”
has the meaning set forth in Section 2.1(a).
(87) “Merger
Consideration” has the meaning set forth in Section
2.2(b).
(88) “Merger
Sub” has the meaning set forth in the Preamble.
(89) “Merger
Sub Material Adverse Effect” means any event, circumstance, development,
change or effect that, individually or in the aggregate with all other events,
circumstances, developments, changes and effects, would materially adversely
affect Parent’s or Merger Sub’s ability to consummate the Merger by the Outside
Date.
(90) “Multiemployer
Plan” means a Company Benefit Plan that is a “multiemployer plan” within the
meaning of Section 3(37) of ERISA.
(91) “NASD”
has the meaning set forth in Section 3.5.
(92) “Negative
Consent Notice” has the meaning set forth in Section
5.14(a).
(93) “New
Financing Commitments” has the meaning set forth in
Section 5.13(e).
(94) “New
Plans” has the meaning set forth in Section 5.6(b).
(95) “NFA”
has the meaning set forth in Section 3.5.
(96) “Non-Breach
Financing Failure” has the meaning set forth in
Section 7.6(c).
(97) “Non-Public
Fund Client Consent” has the meaning set forth in
Section 5.14(a).
(98) “Notice”
has the meaning set forth in Section 5.14(a).
(99) “Notice
Period” has the meaning set forth in Section 5.3(e)(i).
(100) “NYSE”
has the meaning set forth in Section 3.5.
(101) “Old
Plans” has the meaning set forth in Section 5.6(b).
(102) “Order”
means any order, judgment, injunction, award, decree or writ handed down,
adopted or imposed by, including any consent decree, settlement agreement
or
similar written agreement with, any Governmental Entity.
(103) “Other
Filings” has the meaning set forth in Section 5.5(d).
(104) “Outside
Date” has the meaning set forth in Section 7.2(a).
(105) “Parent”
has the meaning set forth in the Preamble.
(106) “Parent
Expenses” has the meaning set forth in Section 7.6(b).
(107) “Parent
Termination Fee” means $200,000,000.
(108) “Paying
Agent” has the meaning set forth in Section 2.3(a).
(109) “Payment
Fund” has the meaning set forth in Section 2.3(a).
(110) “PBGC”
has the meaning set forth in Section 3.13(d).
(111) “Permit”
means any permit, license, accreditation, consent, certificate, approval,
exemption, order, franchise, permission, agreement, qualification, authorization
or registration.
(112) “Permitted
Liens” means (i) Liens for Taxes, assessments and governmental charges
or levies not yet due and payable or that are being contested in good faith
and
by appropriate proceedings for which the Company has established a reasonable
reserve; (ii) mechanics, carriers’, workmen’s, repairmen’s, materialmen’s
or other Liens or security interests that secure a liquidated amount that
are being contested in good faith and by appropriate proceedings; (iii) leases,
subleases and licenses (other than capital leases and leases underlying sale
and
leaseback transactions); (iv) pledges or deposits to secure obligations under
workers’ compensation Laws or similar legislation or to secure public or
statutory obligations; (v) pledges and deposits to secure the performance
of
bids, trade contracts, leases, surety and appeal bonds, performance bonds
and
other obligations of a similar nature, in each case in the ordinary course
of
business; (vi) easements, covenants and rights of way (unrecorded and of
record)
and other similar restrictions of record, and zoning, building and other
similar
restrictions, in each case that do not adversely affect in any material respect
the current use of the applicable property leased, used or held for use by
the
Company or any of its Subsidiaries; (vii) any other Liens that do not secure
a
liquidated amount, that have been incurred or suffered in the ordinary course
of
business and that would not, individually or in the aggregate, have a material
effect on, or materially affect the use or benefit to the owner of, the assets
or properties to which they specifically relate; (viii) licenses of or other
agreements related to Intellectual Property which are not intended to secure
an
obligation; and (ix) such other Liens that in the aggregate are not
material.
(113) “Person”
means any individual, corporation, limited or general partnership, limited
liability company, limited liability partnership, trust, association, joint
venture, Governmental Entity or other entity or group (which term will include
a
“group” as such term is defined in Section 13(d)(3) of the Exchange
Act).
(114) “Pre-Closing
Service” has the meaning set forth in Section 5.6(b).
(115) “Preferred
Stock” has the meaning set forth in Section 3.3(a).
(116) “Private
Fund” means each vehicle for collective investment (in whatever form of
organization, including the form of a corporation, company, limited liability
company, partnership, association, trust or other entity, and including each
separate portfolio or series of any of the foregoing) that is not registered
or
required to be registered with the SEC as an investment company under the
Investment Company Act, but only during the period with respect to which
the
Company or one or more of its Subsidiaries acted or acts as the sponsor,
general
partner, managing member, trustee, investment manager, investment adviser
or in
a similar capacity.
(117) “Public
Fund” means each vehicle for collective investment (in whatever form of
organization, including the form of a corporation, company, limited liability
company, partnership, association, trust or other entity, and including each
separate portfolio or series of any of the foregoing) the interests in which
are
publicly offered and that is registered or required to be registered with
the
SEC as an investment company under the Investment Company Act, but only during
the period with respect to which the Company or one or more of its Subsidiaries
acted or acts as the sponsor, general partner, managing member, trustee,
investment manager, investment adviser or in a similar capacity.
(118) “Public
Fund Board” means the board of directors or trustees (or Persons performing
similar functions) of a Public Fund.
(119) “Public
Fund Consent” has the meaning set forth in Section
5.14(b).
(120) “Public
Fund SEC Documents” means the forms, statements, reports and documents filed
by any Public Fund with, or furnished by any Public Fund to, the SEC pursuant
to
the Investment Company Act (including any exhibits and amendments
thereto).
(121) “Recommendation
Change” has the meaning set forth in Section 5.3(e).
(122) “Representatives”
means, when used with respect to Parent, Merger Sub or the Company, the
directors, officers, members, managers, employees, consultants, accountants,
legal counsel, investment bankers, agents and other representatives of Parent,
Merger Sub or the Company, as applicable, and their respective
Subsidiaries.
(123) “Required
Financial Information” has the meaning set forth in
Section 5.13(a).
(124) “Requisite
Stockholder Vote” means the adoption of this Agreement by the affirmative
vote of the holders of a majority of the voting power of the shares of Common
Stock outstanding and entitled to vote thereon.
(125) “Revenue
Run-Rate”, of any Person as of any date, means the aggregate annualized
investment advisory and sub-advisory fees computed primarily by reference
to
assets under management that are payable to such Person or an Affiliate in
respect of all Client accounts as to which such Person provides any of the
foregoing services, determined by multiplying the Adjusted Assets Under
Management for each such account as of such date by the applicable annual
fee
rate for such account as of such date. For purposes of this
definition, the “applicable annual fee rate” for each account shall not include
the effect of any performance-based fees or adjustments thereto or any
extraordinary revenue items, and shall be reduced to take account of any
then
applicable fee waiver, expense reimbursement, rebate or similar reduction
to any
Person in connection with such account.
(126) “Revenue
Run-Rate Requirement” means a Revenue Run-Rate for the Company and its
Subsidiaries of at least 80% of the Aggregate Base Revenue
Run-Rate.
(127) “SEC”
has the meaning set forth in Section 3.5.
(128) “Securities
Act” has the meaning set forth in Section 3.8(a).
(129) “Seed
Capital Investment” means each separate account or vehicle for collective
investment (in whatever form of organization, including the form of a
corporation, limited liability company, partnership, association, trust or
other
entity, and including each separate portfolio or series of any of the foregoing)
in which the Company or one or more of its Subsidiaries has invested “seed” or
“early stages” capital; provided that the aggregate investment (measured
at the time of the investment) in all such accounts and vehicles shall not
exceed $140,000,000 prior to November 30, 2007, $145,000,000 prior to December
31, 2007, $150,000,000 prior to January 31, 2008 or $155,000,000 prior to
February 28, 2008 or at anytime thereafter.
(130) “Share(s)”
has the meaning set forth in Section 2.2(b).
(131) “Solicitation
Period End-Time” has the meaning set forth in
Section 5.3(a).
(132) “Solvent”
has the meaning set forth in Section 4.8.
(133) “SOX”
has the meaning set forth in Section 3.8(a).
(134) “Special
Committee” means a committee of the Company Board, the members of which are
not affiliated with Parent or Merger Sub and are not members of the Company’s
management, formed for the purpose of, among other things, evaluating, and
making a recommendation to the full Company Board with respect to, this
Agreement and the transactions contemplated hereby, including the Merger,
and
shall include any successor committee to the Special Committee existing as
of
the date of this Agreement or any reconstitution thereof.
(135) “Specified
Employee” means each employee of the Company or its Subsidiaries who is
listed in Section 1.1(b) of the Company Disclosure Letter.
(136) “Specified
Person” has the meaning set forth in Section 7.6(c).
(137) “Specified
Symphony Funds” means the Funds listed in Section 1.1(c) of the
Company Disclosure Letter.
(138) “SRO”
has the meaning set forth in Section 3.5.
(139) “Sub-Advised
Fund” means any Private Fund or Public Fund which is not sponsored by the
Company or any of its Subsidiaries and for which the Company or its Subsidiaries
acts as investment subadviser under the general supervision of a third party
investment adviser.
(140) “Subsidiary”
means, when used with respect to Parent, Merger Sub or the Company, any other
Person (whether or not incorporated) that Parent, Merger Sub or the Company,
as
applicable, directly or indirectly owns or has the power to vote or control
more
than 50% of any class or series of capital stock or other equity interests
of
such Person; provided that the term “Subsidiary” shall not include
any Seed Capital Investments. Unless otherwise specified, any
reference to a Subsidiary shall be a reference to a Subsidiary of the
Company.
(141) “Superior
Proposal” means any bona fide written Takeover Proposal (A) that the Company
Board (acting through the Special Committee, if then in existence) determines
in
its good faith judgment (following consultation with financial advisors and
outside legal counsel) to be more favorable from a financial perspective
(taking
into account (i) any legal, financial, regulatory and other aspects of such
Takeover Proposal and the Merger and other transactions contemplated by this
Agreement deemed relevant by the Company Board (or the Special Committee,
as applicable), and (ii) the anticipated timing, conditions and prospects
for completion of such Takeover Proposal) to the Company’s stockholders than the
Merger and the other transactions contemplated by this Agreement (taking
into
account all of the terms of any proposal by Parent to amend or modify the
terms
of the Merger and the other transactions contemplated by this Agreement),
except
that the reference to “15%” in the definition of “Takeover Proposal” shall be
deemed to be a reference to “50%” and (B) for which financing, if a cash
transaction (whether in whole or in part), is then fully committed.
(142) “Surviving
Corporation” has the meaning set forth in Section
2.1(a).
(143) “Takeover
Proposal” means any proposal or offer from any Person or group of Persons
other than Parent or the Guarantors relating to, in a single transaction
or a
series of related transactions, any direct or indirect acquisition or purchase
of (i) a business or division (or more than one of them) that in the aggregate
constitutes 15% or more of the net revenues, net income or assets of the
Company
and its Subsidiaries, taken as a whole, (ii) 15% or more of the equity interests
in the Company (by vote or value), (iii) any tender offer, self tender offer
or
exchange offer that if consummated would result in any Person or group of
Persons beneficially owning 15% or more of the equity interests (by vote
or
value) in the Company, or (iv) any merger, reorganization, consolidation,
share
exchange, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company (or any Subsidiary or Subsidiaries
of the Company whose business constitutes 15% or more of the net revenues,
net
income or assets of the Company and its Subsidiaries, taken as a
whole).
(144) “Tax”
means (i) any and all federal, state, provincial, local, foreign and other
taxes, levies, fees, imposts, duties, and similar governmental charges
(including any interest, fines, assessments, penalties or additions to tax
imposed in connection therewith or with respect thereto) including (x) taxes
imposed on, or measured by, income, franchise, profits or gross receipts,
and
(y) ad valorem, value added, capital gains, sales, goods and
services, use, real or personal property, capital stock, license, branch,
payroll, estimated, withholding, employment, social security (or similar),
unemployment, compensation, utility, severance, production, excise, stamp,
occupation, premium, windfall profits, transfer and gains taxes, and customs
duties, (ii) any liability for payment of amounts described in clause (i)
whether as a result of transferee liability, joint and several liability
for
being a member of an affiliated, consolidated, combined, unitary or other
group
for any period, or otherwise by operation of law, and (iii) any liability
for
the payment of amounts described in clause (i) or (ii) as a result of any
tax sharing, tax indemnity or tax allocation agreement or similar agreements
to
pay or indemnify any other Person on account of Taxes.
(145) “Tax
Returns” means any and all reports, returns, declarations, claims for
refund, elections, disclosures, estimates, information reports or returns
or
statements required to be supplied to a taxing authority in connection with
Taxes, including any schedule or attachment thereto or amendment
thereof.
(146) “Third
Party Beneficiary” has the meaning set forth in Section
8.7.
(147) “Treasury
Regulations” means the Treasury regulations promulgated under the
Code.
Section
1.2 Interpretation.
The headings in this Agreement are for reference only and do
not affect the
meaning or interpretation of this Agreement. Definitions will apply
equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun will include
the corresponding masculine, feminine and neuter forms. All
references in this Agreement, the Company Disclosure Letter and the Acquiror
Disclosure Letter to Articles, Sections and Exhibits refer to Articles and
Sections of, and Exhibits to, this Agreement unless the context requires
otherwise. The words “include,” “includes” and “including” are not
limiting and will be deemed to be followed by the phrase “without limitation.”
The phrases “herein,” “hereof,” “hereunder” and words of similar import will be
deemed to refer to this Agreement as a whole, including the Exhibits and
Schedules hereto, and not to any particular provision of this
Agreement. The word “or” will be inclusive and not exclusive unless
the context requires otherwise. Unless the context requires
otherwise, any agreements, documents, instruments or Laws defined or referred
to
in this Agreement will be deemed to mean or refer to such agreements, documents,
instruments or Laws as from time to time amended, modified or supplemented
(subject to any restrictions on such amendments, modifications or supplements
set forth herein), including (a) in the case of agreements, documents or
instruments, by waiver or consent, and (b) in the case of Laws, by succession
of
comparable successor statutes. References herein to federal, state,
local or other applicable Laws refer to the laws of the United States, Canada
and all other applicable jurisdictions. All references in this
Agreement to any particular Law will be deemed to refer also to (i) any rules
and regulations promulgated under that Law and (ii) any comparable Law of
any
other jurisdiction addressing the same subject matter and any rules and
regulations promulgated under such comparable Law. References to a
Person also refer to its predecessors and successors and permitted
assigns. The “extent” in the phrase “to the extent” shall mean the
degree to which a subject or other thing extends, and such phrase shall not
mean
simply “if”.
THE
MERGER
Section
2.1 The
Merger. (a) On the terms and subject to the
conditions set forth in this Agreement, and in accordance with the General
Corporation Law of the State of Delaware
(the “DGCL”), at the Effective Time, (i) Merger Sub will merge with
and into the Company (the “Merger”), (ii) the separate corporate existence
of Merger Sub will cease and (iii) the Company will continue its corporate
existence under Delaware law as the surviving corporation in the Merger (the
“Surviving Corporation”) and a subsidiary of Parent.
(b) Subject
to the provisions of this Agreement, at the Closing, the Company will cause
a
certificate of merger (the “Certificate of Merger”) to be executed,
acknowledged and filed with the Secretary of State of the State of Delaware
in
accordance with Section 251 of the DGCL. The
Merger will become effective at such time as the Certificate of Merger has
been
duly filed with the Secretary of State of the State of Delaware or at such
later
date or time as may be agreed by Parent and the Company in writing and specified
in the Certificate of Merger in accordance with the DGCL (the effective time
of
the Merger being hereinafter referred to as the “Effective
Time”).
(c) The
Merger will have the effects set forth in this Agreement and the applicable
provisions of the DGCL.
(d) Unless
otherwise mutually agreed in writing by the Company and Parent, the closing
of
the Merger (the “Closing”) will take place at the offices of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at
9:00 a.m., local time, on the third Business Day following the day on which
all
of the conditions set forth in Article VI (other than those
conditions that by their nature are to be satisfied at the Closing, but subject
to the satisfaction or waiver of those conditions) are satisfied or, if
permissible, waived in accordance with this Agreement or another date mutually
agreed to by the parties; provided, however, that if all the
conditions set forth in Article VI shall not continue to be satisfied or
waived on such third Business Day, then the Closing shall take place on the
first Business Day on which all such conditions shall have again been satisfied
or waived; and provided, further that, notwithstanding the
satisfaction or waiver of the conditions set forth in Article VI, the
parties shall not be required to effect the Closing until the earlier of
(i) a
date during the Marketing Period specified by Parent on no less than three
Business Days’ notice to the Company and (ii) the final day of the Marketing
Period. The date on which the Closing actually occurs is hereinafter
referred to as the “Closing Date.”
Section
2.2 Effect
of the Merger on Capital Stock. At the Effective Time, as a
result of the Merger and without any action on the part of Merger Sub, Parent
or
the Company or any holder of any equity interests of Merger Sub, Parent or
the
Company:
(a) Cancellation
of Certain Common Stock. Each share of Common Stock that is owned
by Merger Sub, Parent or the Company (as treasury stock or
otherwise) will automatically be cancelled and will cease to exist, and no
consideration will be delivered in exchange therefor.
(b) Conversion
of Common Stock. Except as otherwise agreed by Parent and a
holder of Shares, each share of Common Stock, including each Company Restricted
Share (each, a “Share” and collectively, the “Shares”), issued and
outstanding immediately prior to the Effective Time (other than (i) Shares
to be
cancelled in accordance with Section 2.2(a) and (ii) except as provided
in Section 2.4, Dissenting Shares (each, an “Excluded Share” and
collectively, the “Excluded Shares”)), will be converted into the right
to receive $65.00 in cash from the Surviving Corporation (through the Paying
Agent as provided in Section 2.3), without interest (the “Merger
Consideration”).
(c) Cancellation
of Shares. At the Effective Time, all Shares will cease to be
outstanding, will be cancelled and will cease to exist, and, in the case
of
non-certificated shares represented by book-entry (“Book-Entry Shares”),
the names of the former registered holders shall be removed from the registry
of
holders of such shares, and, subject to Section 2.4, each holder of a
certificate formerly representing any such Shares (each, a “Certificate”)
and each holder of a Book-Entry Share, other than Dissenting Shares, will
cease
to have any rights with respect thereto, except the right to receive the
Merger
Consideration in accordance with Section 2.3 and any dividends declared
with a record date prior to the Effective Time that remain unpaid at the
Effective Time and that are due to such holder, in each case without
interest.
(d) Conversion
of Merger Sub Capital Stock. Each share of common stock, par
value $0.01 per share, of Merger Sub issued and outstanding immediately prior
to
the Effective Time will be converted into one share of common stock, par
value
$0.01 per share, of the Surviving Corporation.
Section
2.3 Surrender
of Certificates and Book-Entry Shares.
(a) Paying
Agent. Prior to the Effective Time, for the benefit of the
holders of Shares (other than Excluded Shares), Parent will (i) designate,
or
cause to be designated, a bank or trust company that is reasonably acceptable
to
the Company (the “Paying Agent”), and (ii) enter into a paying
agent agreement, in form and substance reasonably acceptable to the Company,
with such Paying Agent to act as agent for the payment of the Merger
Consideration in respect of Certificates upon surrender of such Certificates
(or
effective affidavits of loss in lieu thereof and a bond, if required, pursuant
to Section 2.3(f)) and the Book-Entry Shares in accordance with this
Article II from time to time after the Effective Time. At
the Effective Time, Parent or Merger Sub will deposit, or cause to be deposited,
with the Paying Agent cash in the amount necessary for the payment of the
Merger
Consideration pursuant to Section 2.2(b) upon surrender of such
Certificates and Book-Entry Shares (such cash being herein referred to as
the
“Payment Fund”). The Payment Fund shall not be used for any
other purpose. The Payment Fund shall be invested by the Paying Agent
as directed by the Surviving Corporation; provided, however, that
such investments shall be (i) in obligations of, or guaranteed by, the United
States of America or any agency or instrumentality thereof and backed by
the
full faith and credit of the United States of America, (ii) in commercial
paper
obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or
Standard & Poor’s Corporation, respectively, or (iii) in certificates of
deposit, bank repurchase agreements or banker’s acceptances of commercial banks
with capital exceeding $1 billion (based on the most recent financial statements
of such bank which are then publicly available). Any net profit
resulting from, or interest or income produced by, such investments shall
be the
property of and payable to the Surviving Corporation.
(b) Payment
Procedures. Promptly after the Effective Time, but in no event
more than five (5) Business Days after the Effective Time, the Surviving
Corporation will instruct the Paying Agent to mail to each holder of record
of
Shares (other than Excluded Shares) a letter of transmittal in customary
form as
reasonably agreed by the parties hereto specifying that delivery will be
effected, and risk of loss and title to Certificates and Book-Entry Shares
will
pass, only upon proper delivery of Certificates (or effective affidavits
of loss
in lieu thereof and a bond, if required, pursuant to Section 2.3(f)) or
Book-Entry Shares, as the case may be, to the Paying Agent and instructions
for
use in effecting the surrender of the Certificates (or effective affidavits
of
loss in lieu thereof and a bond, if required, pursuant to Section 2.3(f))
and Book-Entry Shares in exchange for the Merger Consideration. Upon
the proper surrender of a Certificate (or effective affidavit of loss in
lieu
thereof and a bond, if required, pursuant to Section 2.3(f)) or
Book-Entry Share to the Paying Agent, together with a properly completed
letter
of transmittal, duly executed, and such other documents as may reasonably
be
requested by the Paying Agent, the holder of such Certificate or Book-Entry
Share will be entitled to receive in exchange therefor cash in an amount
equal
to the Merger Consideration (after giving effect to any required tax
withholdings) for each Share (other than Dissenting Shares) formerly represented
by such Certificate or Book-Entry Share that such holder has the right to
receive pursuant to this Article II, and the Certificate or
Book-Entry Share so surrendered will forthwith be cancelled. No
interest will be paid or accrued on any amount payable upon due surrender
of the
Certificates or Book-Entry Shares. In the event of a transfer of
ownership of Shares that is not registered in the transfer records of the
Company, the Merger Consideration to be paid upon due surrender of the
Certificate or Book-Entry Share may be paid to such a transferee if the
Certificate or Book-Entry Share formerly representing such Shares is presented
to the Paying Agent, accompanied by all documents required to evidence and
effect such transfer and to evidence that any applicable stock transfer Taxes
have been paid or are not applicable.
(c) Withholding
Taxes; Transfer Taxes. The Surviving Corporation and the Paying
Agent will be entitled to deduct and withhold from amounts otherwise payable
pursuant to this Agreement to any holder of Shares, Company Stock Options
or
Company RSUs, as the case may be, any amounts required to be deducted and
withheld with respect to such payments under the Code and the rules and Treasury
Regulations promulgated thereunder, or any provision of state, local or foreign
Tax law. Any amounts so deducted and withheld will be timely paid to
the applicable Tax authority and will be treated for all purposes of this
Agreement as having been paid to the holder of the Shares, Company Stock
Options
or Company RSUs, as the case may be, in respect of which such deduction and
withholding was made. All stock transfer, real estate transfer,
documentary, stamp, recording and other similar Taxes (including interest,
penalties and additions to any such Taxes) incurred in connection with the
Merger shall be paid by Parent, and the Company shall cooperate with Parent
in
preparing, executing and filing any Tax Returns in respect of such
Taxes.
(d) No
Further Transfers. At the close of business on the day on which
the Effective Time occurs, there will be no transfers on the stock transfer
books of the Company of Shares that were outstanding immediately prior to
the
Effective Time other than to settle transfers of Shares that occurred prior
to
such close of business. If, after such close of business,
Certificates or Book-Entry Shares are presented to the Paying Agent, they
will
be cancelled and exchanged for the Merger Consideration as provided in this
Article II.
(e) Termination
of Payment Fund. Any portion of the Payment Fund that remains
undistributed to the holders of the Certificates or Book-Entry Shares twelve
(12) months after the Effective Time will be delivered to the Surviving
Corporation, on demand, and any holder of a Certificate or Book-Entry Share
who
has not theretofore complied with this Article II will thereafter
look only to the Surviving Corporation for payment of his or her claims for
Merger Consideration. Notwithstanding the foregoing, to the fullest
extent permitted by applicable Law, none of Parent, Merger Sub, the Company,
the
Surviving Corporation, the Paying Agent or any other Person will be liable
to
any former holder of Shares for any amount delivered to a public official
pursuant to applicable abandoned property, escheat or similar Laws.
(f) Lost,
Stolen or Destroyed Certificates. In the event any Certificate
has been lost, stolen or destroyed, upon the making of an affidavit of that
fact
by the Person claiming such Certificate to be lost, stolen or destroyed and,
if
required by the Surviving Corporation, the posting by such Person of a bond
in
customary amount and upon such terms as the Surviving Corporation may determine
are necessary as indemnity against any claim that may be made against it with
respect to such Certificate, the Paying Agent will issue, in exchange for
such
lost, stolen or destroyed Certificate, the Merger Consideration pursuant
to this
Agreement.
Section
2.4 Dissenting
Shares. Notwithstanding any provision of this Agreement to the
contrary and to the extent provided under the DGCL, any Shares outstanding
immediately prior to the Effective Time that are held by stockholders (each,
a
“Dissenting Stockholder”) that have neither voted in favor of the
adoption of this Agreement nor consented thereto in writing and that have
demanded properly in writing appraisal for such Shares and otherwise properly
perfected and not withdrawn or lost his or her rights in accordance with
Section
262 of the DGCL (the “Dissenting Shares”) will not
be converted into, or represent the right to receive, the Merger
Consideration. Such Dissenting Stockholders will be entitled to
receive payment of the appraised value of Dissenting Shares held by them
in
accordance with the provisions of such Section 262, except that all Dissenting
Shares held by stockholders who have failed to perfect or who effectively
have
withdrawn or lost their rights to appraisal of such Dissenting Shares pursuant
to Section 262 of the DGCL will thereupon be deemed to have been converted
into,
and represent the right to receive, the Merger Consideration in the manner
provided in Article II and will no longer be Excluded
Shares. The Company will give Parent prompt notice of any written
demands for appraisal, attempted withdrawals of such demands, and any other
instruments served pursuant to applicable Law received by the Company relating
to stockholders’ rights of appraisal. The Company will give Parent
the opportunity to participate in and direct all negotiations and proceedings
with respect to demands for appraisal. The Company will not, except
with the prior written consent of Parent, make any payment with respect to
any
demands for appraisals of Dissenting Shares, offer to settle or settle any
such
demands or approve any withdrawal or other treatment of any such
demands.
Section
2.5 Treatment
of Company Equity Awards.
(a) As
of the Effective Time, except as otherwise specifically agreed by Parent
and the
holder of outstanding Company Stock Options with respect to such holder’s
outstanding Company Stock Options, each Company Stock Option, whether vested
or
unvested, that is outstanding immediately prior to the Effective Time will
become vested with respect to the maximum number of shares of Common Stock
covered thereby and be cancelled and the holder of such Company Stock Option
will receive from the Surviving Corporation an amount in cash equal to the
product of (i) the excess, if any, of the Merger Consideration over the exercise
price per Share of such Company Stock Option multiplied by (ii) the maximum
number of Shares subject to such Company Stock Option with respect to which
such
Company Stock Option shall not theretofore have been exercised.
(b) As
of the Effective Time, except as otherwise specifically agreed by Parent
and a
holder of unvested Company Restricted Shares with respect to such holder’s
unvested Company Restricted Shares, each unvested Company Restricted Share
that
is outstanding immediately prior to the Effective Time shall vest and become
free of restrictions as of the Effective Time and shall, as of the Effective
Time, be cancelled and converted into the right to receive the Merger
Consideration in accordance with Section 2.2.
(c) As
of the Effective Time, except as otherwise specifically agreed by Parent
and the
holder of outstanding Company RSUs with respect to such holder’s outstanding
Company RSUs, each Company RSU that is outstanding immediately prior to the
Effective Time shall be cancelled, with the holder of such Company RSU becoming
entitled to receive an amount in cash equal to (i) the Merger Consideration
multiplied by the maximum number of shares of Common Stock subject to such
Company RSU as of the Effective Time plus (ii) any dividend equivalents accrued
with respect to such Company RSU prior to the Effective Time but not yet
distributed as of the Effective Time (other than any such dividend equivalents
that are held in the form of Company RSUs as of the Effective
Time).
(d) The
amounts payable under Sections 2.5(a) and 2.5(c) shall be referred
to herein as the “Equity Award Amounts”. All Equity Award
Amounts shall, subject to Section 2.3(c), be paid by the Surviving
Corporation as promptly as practicable following the Effective Time, without
interest.
(e) Prior
to the Effective Time, the Company Board (or a committee thereof) will adopt
such resolutions and will take such other actions as shall be required to
effectuate the actions contemplated by this Section 2.5, without
paying any consideration or incurring any debts or obligations on behalf
of the
Company or the Surviving Corporation (other than the payment of the Merger
Consideration in accordance with this Article II).
Section
2.6 Organizational
Documents.
(a) At
the Effective Time, the Company Certificate, as in effect immediately prior
to
the Effective Time, shall be further amended to read in its entirety as the
certificate of incorporation of Merger Sub (except that Article I thereof
shall
be amended to read “The Name of the Corporation is Nuveen Investments, Inc.”)
and, as so amended, shall be the certificate of incorporation of the Surviving
Corporation until thereafter amended as provided therein or by applicable
Law;
and
(b) The
by-laws of the Company, as in effect immediately prior to the Effective Time,
shall be amended to read in its entirety as the by-laws of Merger Sub (except
that the name shall change to the name of the Surviving Corporation) and,
as so
amended, shall be the by-laws of the Surviving Corporation until thereafter
amended as provided therein or by applicable Law.
Section
2.7 Directors
and Officers of Surviving Corporation. The directors of Merger
Sub and the officers of the Company, in each case, as of the Effective Time
shall, from and after the Effective Time, be the directors and officers,
respectively, of the Surviving Corporation until their successors have been
duly
elected or appointed and qualified or until their earlier death, resignation
or
removal in accordance with the certificate of incorporation or by-laws of
the
Surviving Corporation.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except
(i) as set forth in the corresponding sections or subsections of the letter
delivered to Parent and Merger Sub by the Company concurrently with entering
into this Agreement (the “Company Disclosure Letter”) (it being
understood that any information set forth in a particular section or subsection
of the Company Disclosure Letter shall be deemed to be disclosed in each
other
section or subsection thereof to which the relevance of such information
is
reasonably apparent on its face) or (ii) as may be disclosed in, and reasonably
apparent from, any of the Company SEC Documents filed by the Company with,
or
furnished on Form 8-K by the Company to, the SEC since December 31, 2006
and
publicly available prior to the date of this Agreement (the “Filed
Company SEC Documents”) and only as and to the extent so disclosed or
incorporated by reference therein (other than (1) any items included therein
that are incorporated by reference to Company SEC Documents filed prior to
December 31, 2006 which are not available electronically at the SEC website
located at ▇▇▇.▇▇▇.▇▇▇, (2) any forward looking disclosures set forth in
any
risk factor section, (3) any disclosures in any section relating to forward
looking statements and (4) any other disclosures included therein to the
extent
they are primarily predictive, cautionary or forward-looking in nature) and,
for
the avoidance of doubt, without giving effect to any event occurring subsequent
to the date any such Filed Company SEC Document was filed, the Company
represents and warrants to Parent and Merger Sub:
Section
3.1 Organization;
Power; Qualification. The Company and each of its Subsidiaries is
a corporation, limited liability company or other legal entity duly organized,
validly existing and in good standing (to the extent such concept is legally
recognized) under the Laws of its jurisdiction of organization, except, in
the
case of an immaterial Subsidiary, where the failure to be in good standing
would
not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect. Each of the Company and its Subsidiaries has
the requisite corporate or similar power and authority to own, lease and
operate
its assets and to carry on its business as now conducted. Each of the
Company and its Subsidiaries is duly qualified or licensed to do business
as a
foreign corporation, limited liability company or other legal entity and
is in
good standing (to the extent such concept is legally recognized) in each
jurisdiction where the character of the assets and properties owned, leased
or
operated by it or the nature of its business makes such qualification or
license
necessary, except where the failure to be so qualified or licensed or in
good
standing would not, individually or in the aggregate, reasonably be expected
to
have a Company Material Adverse Effect. The Company Organizational Documents
of
the Company and each material Subsidiary of the Company are in full force
and
effect. Neither the Company nor any material Subsidiary of the
Company is in violation of its Company Organizational Documents in any material
respects.
Section
3.2 Corporate
Authorization; Enforceability.
(a) The
Company has the requisite corporate power and authority to enter into and
to
perform its obligations under this Agreement and to consummate the Merger
and
the other transactions contemplated by this Agreement, subject, in the case
of
the Merger, to receipt of the Requisite Stockholder Vote. The
execution, delivery and performance by the Company of this Agreement and
the
consummation by the Company of the Merger and the other transactions
contemplated hereby have been duly and validly authorized by the Company
Board,
subject, in the case of the Merger, to receipt of the Requisite Stockholder
Vote. Except for the Requisite Stockholder Vote, no other corporate proceedings
on the part of the Company are necessary to approve this Agreement or to
consummate the Merger or the other transactions contemplated hereby. Subject
to
Section 5.3(e), the Company Board, acting upon the recommendation of the
Special Committee, has unanimously, by resolutions adopted at a meeting duly
called and held, (i) approved and declared advisable this Agreement and the
transactions contemplated hereby, (ii) determined that the terms of this
Agreement are fair to, and in the best interests of, the Company and its
stockholders, and (iii) resolved to recommend that the Company’s stockholders
vote in favor of adoption of this Agreement (the “Company Board
Recommendation”) and directed that the Agreement be submitted to the holders
of the Shares for their adoption of the plan of merger contained in this
Agreement at a stockholders meeting duly called and held for such
purpose. The Requisite Stockholder Vote is the only vote of the
holders of any class or series of capital stock of the Company necessary
for the
Company to adopt this Agreement and for the Company to consummate the Merger
and
the other transactions contemplated hereby.
(b) This
Agreement has been duly executed and delivered by the Company and, assuming
the
due authorization, execution and delivery of this Agreement by Parent and
Merger
Sub, constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
the
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar Laws,
now or
hereafter in effect, relating to creditor’s rights generally, (ii) general
principles of equity (regardless of whether such enforcement is considered
in a
proceeding at law or in equity) and (iii) the remedy of specific performance
and
injunctive and other forms of equitable relief being subject to the discretion
of the Governmental Entity before which any enforcement proceeding therefor
may
be brought.
Section
3.3 Capitalization;
Equity Awards.
(a) The
Company’s authorized capital stock consists solely of 160,000,000 shares of
Class A common stock (the “Common Stock”), 80,000,000 shares of Class B
common stock and 5,000,000 shares of preferred stock (the “Preferred
Stock”). As of the close of business on June 15, 2007 (the
“Measurement Date”), 79,848,512 shares of Common Stock were issued and
outstanding (including 1,236,120 Company Restricted Shares), no shares of
Class
B common stock were issued or outstanding and no shares of Preferred Stock
were
issued or outstanding. As of the Measurement Date, 41,062,968 shares
of Common Stock and no shares of Preferred Stock were held in the treasury
of
the Company. No Shares are held by any Subsidiary of the
Company. Since the Measurement Date until the date of this Agreement,
other than in connection with the issuance of Shares pursuant to the exercise
of
Company Stock Options or settlement of Company RSUs, in each case, outstanding
as of the Measurement Date, there has been no change in the number of
outstanding shares of capital stock of the Company or the number of shares
issuable upon the exercise of outstanding Company Stock Options or settlement
of
Company RSUs. As of the Measurement Date, Company Stock Options to
purchase 15,060,667 shares of Common Stock were outstanding and 470,082.47
shares of Common Stock were subject to outstanding Company RSUs, in each
case,
assuming maximum achievement of any applicable performance goals. No
Company Stock Option (i) has a per share exercise price lower than the fair
market value of a Share on the date of grant of such Company Stock Option,
(ii)
has had its grant date backdated or (iii) has had its grant date delayed
in
order to take advantage of the release or other public announcement of material
non-public information regarding the Company or its Subsidiaries. As
of the date of this Agreement, except as set forth in this
Section 3.3, there are no shares of capital stock or securities or
other rights convertible or exchangeable into or exercisable for shares of
capital stock of the Company or such securities or other rights which in
each
case have been issued by the Company (which term, for purposes of this
Agreement, will be deemed to include stock appreciation rights, “phantom stock”
or other commitments that provide any right to receive value or benefits
similar
to such capital stock, securities or other rights). Since the
Measurement Date through the date of this Agreement, other than in connection
with the issuance of Shares pursuant to the exercise of Company Stock Options
or
settlement of Company RSUs, in each case, outstanding as of the Measurement
Date, there have been no issuances of any securities of the
Company. Section 3.3 of the Company Disclosure Letter sets
forth a correct and complete list, as of the date of this Agreement, of
outstanding Company Restricted Shares, Company Stock Options and Company
RSUs,
including the holder thereof, the date of grant, the term (in the case of
Company Stock Options), the number of Shares subject to such Company Stock
Option or Company RSU, the Company Stock Plan under which such award was
granted
and, where applicable, the exercise price.
(b) All
outstanding Shares, and all shares of Common Stock reserved for issuance
upon
the exercise of Company Stock Options and settlement of Company RSUs as noted
in
clause (a) above, when issued in accordance with the respective terms thereof,
are or will be duly authorized, validly issued, fully paid and non-assessable
and are not and will not be subject to any pre-emptive rights.
(c) Except
as set forth in this Section 3.3 and except pursuant to the Company
Stock Plans and the Company 401(k) Plan, there are no preemptive or other
outstanding rights, options, warrants, conversion rights, stock appreciation
rights, redemption rights, repurchase rights, agreements, arrangements, calls
or
commitments or rights of any kind that obligate the Company or any of its
Subsidiaries to issue, sell, or otherwise transfer to any Person, or to
repurchase, redeem or otherwise acquire from any Person, any Shares, Preferred
Stock, capital stock of any Subsidiary of the Company, or securities or other
rights convertible or exchangeable into or exercisable for shares of capital
stock of the Company or any Subsidiary of the Company or such securities
or
other rights.
Section
3.4 Subsidiaries. Section
3.4 of the Company Disclosure Letter sets forth each Subsidiary of the
Company as of the date of this Agreement and the jurisdiction of organization
of
each such Subsidiary, and a summary of the aggregate Seed Capital Investments
as
of the date of this Agreement. All of the issued and outstanding
shares of capital stock, voting securities, profits interests or other equity
or
equity-like interests of the Company’s Subsidiaries are directly or indirectly
owned beneficially and of record by the Company, free and clear of all Liens,
other than Liens created as a result of federal or state securities laws,
and
all such shares or interests have been duly authorized, validly issued and
fully
paid and, in the case of shares of capital stock issued by a corporate entity
formed under the laws of the United States, nonassessable, free of any
preemptive rights. Except for its interests in its Subsidiaries and
in Seed Capital Investments, as of the date of this Agreement, the Company
does
not own, directly or indirectly, any capital stock of, or other equity interests
in, any corporation, partnership, joint venture, association or other entity
with a fair market value, as of the date of this Agreement, in excess of
$1,000,000.
Section
3.5 Required
Filings and Consents. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated by this Agreement, including the Merger, do not
and
will not require any consent, approval, authorization or permit of, or filing
with or notification to, any international, foreign, supranational, national,
federal, state, provincial or local governmental, regulatory or administrative
authority, including the SEC and any self-regulatory authority (“SRO”)
(including the New York Stock Exchange, or any successor entity or entities
thereto (collectively, the “NYSE”), the National Association of
Securities Dealers, Inc. (“NASD”), and the National Futures Association
(the “NFA”)), agency, commission, court, tribunal or arbitral body,
whether domestic or foreign, and in each case whether legislative, executive,
judicial or otherwise (each, a “Governmental Entity”), other than: (i)
the filing and recordation of the Certificate of Merger with the Secretary
of
State of the State of Delaware; (ii) applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the “Exchange Act”); (iii) any filings with, and approvals
from, relevant state securities administrators or related to the blue sky
laws
of various states; (iv) the filing with the Securities and Exchange Commission
(the “SEC”) of a proxy statement (the “Company Proxy
Statement”) relating to a special meeting of the stockholders of the Company
to consider the adoption of this Agreement (the “Company Stockholders
Meeting”); (v) the filings or notices required or contemplated under the
Advisers Act; (vi) the filings or notices required by, and any approvals
required under the rules and regulations of, the NASD or other SROs (including
the NYSE and the NFA)); (vii) compliance with and filings under (A) the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended
(the “HSR Act”), and (B) other applicable competition or merger
control Laws of any jurisdiction (the “Foreign Merger Control Laws”) and
(viii) in such other circumstances where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not, individually or in the aggregate, reasonably be expected to have
a
Company Material Adverse Effect.
Section
3.6 Non
Contravention. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated by this Agreement, including the Merger, do not and will
not:
(a) conflict
with or result in any breach of any provision of the Company Organizational
Documents;
(b) result
in any violation, or the breach of, or constitute a default (with or without
notice or lapse of time or both) under (or give rise to any right of
modification, termination, cancellation or acceleration or guaranteed payments
or other obligations under or to, a loss of a material benefit or result
in the
creation or imposition of a Lien under) any of the terms, conditions or
provisions of any Contract to which the Company or any of its Subsidiaries
is a
party or by which any of them is otherwise bound, except for such violations,
breaches, defaults, or rights of termination, cancellation or acceleration,
losses or the imposition of Liens as to which requisite waivers or consents
have
been obtained or will be obtained prior to the Effective Time or which would
not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect; or
(c) contravene
or conflict with, or result in any violation or breach of, any Permit of
the
Company or any of its Subsidiaries, except as would not, individually or
in the
aggregate, reasonably be expected to have a Company Material Adverse Effect;
or
(d) violate
the provisions of any Law or Order applicable to the Company or any of its
Subsidiaries, except for any such violations which would not, individually
or in
the aggregate, reasonably be expected to have a Company Material Adverse
Effect.
Section
3.7 Compliance
with Laws and Permits.
(a) The
Company and each of its Subsidiaries is and has been since January 1, 2005
in
compliance with applicable Laws, except for such events of non-compliance
that
would not, individually or in the aggregate, reasonably be expected to have
a
Company Material Adverse Effect.
(b) As
of the date hereof, the Company and each of its Subsidiaries holds all Permits
necessary for the ownership, operation and use of the respective properties
and
assets of the Company and its Subsidiaries and the conduct of their respective
businesses as currently conducted under and pursuant to applicable Law, except
for such failures to hold such Permits that would not, individually or in
the
aggregate, reasonably be expected to have a Company Material Adverse Effect.
All
such Permits are in full force and effect and no suspension or cancellation
of
any of the Permits is pending or, to the Knowledge of the Company, threatened,
except for any failure to be in full force and effect or any suspension or
cancellation that would not, individually or in the aggregate, reasonably
be
expected to have a Company Material Adverse Effect.
(c) Except
for normal examinations conducted by any Governmental Entity in the regular
course of the business of the Company and its Subsidiaries, since January
1,
2005 through the date of this Agreement, no Governmental Entity has, to the
Knowledge of the Company, initiated, and no Governmental Entity has provided
written notice to the Company or its Subsidiaries of any threatened proceeding
or investigation into the business or operations of the Company or any of
its
Subsidiaries. Except for normal examinations conducted by any Governmental
Entity in the regular course of the business of the Company and its
Subsidiaries, since the date of this Agreement, no Governmental Entity has,
to
the Knowledge of the Company, initiated, and no Governmental Entity has provided
written notice to the Company or its Subsidiaries of any threatened proceeding
or investigation into the business or operations of the Company or any of
its
Subsidiaries, except as would not, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect. There is no
deficiency, violation or exception claimed or asserted in writing since January
1, 2005 through the date of this Agreement by any Governmental Entity with
respect to any examination of the Company or any of its Subsidiaries that,
to
the Knowledge of the Company, has not been resolved in all material
respects. Except for deficiencies, violations or exceptions that
would not, individually or in the aggregate, reasonably be expected to have
a
Company Material Adverse Effect, there is no deficiency, violation or exception
claimed or asserted in writing since the date of this Agreement by any
Governmental Entity with respect to any examination of the Company or any
of its
Subsidiaries.
(d) Each
Subsidiary required to be registered as an investment adviser under the Advisers
Act is, and has been at all times since January 1, 2005, duly registered
as an
investment adviser under the Advisers Act (such registered Subsidiaries,
the
“Investment Adviser Subsidiaries”), and no Subsidiary that is not an
Investment Adviser Subsidiary provides investment advisory services to any
Person. None of the Investment Adviser Subsidiaries is prohibited by
any provision of the Advisers Act or the Investment Company Act, or the
respective rules and regulations thereunder, from acting as an investment
adviser. The Investment Adviser Subsidiaries are the only Subsidiaries of
the
Company required to be registered as investment advisers under the Advisers
Act. Each of the Investment Adviser Subsidiaries is duly registered,
licensed or qualified as an investment adviser in each jurisdiction where
the
conduct of its business requires such registration and is in compliance with
all
federal, state and foreign laws requiring any such registration, licensing
or
qualification, except for any failure to be so registered, licensed or qualified
in any such jurisdiction or to be in such compliance that would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect. Since January 1, 2005, each Form ADV of the
respective Investment Adviser Subsidiaries, as of the date of filing with
the
SEC (and with respect to Form ADV Part II or its equivalent, its date) did
not,
as of such respective date, contain any untrue statement of a material fact
or
omit to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under
which
they were made, not misleading. Each of the Investment Adviser
Subsidiaries has implemented written policies and procedures as required
by
applicable Law (including Rule 206(4)-7 under the Advisers Act), complete
and
correct copies of which (including any reports or filings under such policies
and procedures since January 1, 2005 relating to compliance by such Investment
Adviser Subsidiaries and their employees subject thereto) have been delivered
to
Parent and, except as otherwise noted in any such reports or filings, each
such
Investment Adviser Subsidiary has been in compliance, in all material respects,
with such policies and procedures.
(e) Section
3.7(e) of the Company Disclosure Letter lists the name of the only
Subsidiary of the Company required to be registered as a broker-dealer under
the
Exchange Act (the “Broker-Dealer Subsidiary”), and the Broker-Dealer
Subsidiary is, and has been at all times since January 1, 2005, duly registered,
licensed or qualified as a broker-dealer under the Exchange Act, and under
the
securities laws of each jurisdiction where the conduct of its business requires
such registration, licensing or qualification, except for any failure to
be so
registered, licensed or qualified in any such jurisdiction or to be in such
compliance that would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the Broker-Dealer
Subsidiary. The Broker-Dealer Subsidiary is a member in good standing
of the NASD, and each other self-regulatory organization where the conduct
of
its business requires such membership. Since January 1, 2005, each Form BD
of
the Broker-Dealer Subsidiary, as of the date of filing with the SEC did not,
as
of such respective date, contain any untrue statement of a material fact
or omit
to state a material fact required to be stated therein or necessary in order
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading. The Broker-Dealer Subsidiary has implemented written
policies and procedures as required by applicable Law (including NASD Member
Rules 3010-3013), complete and correct copies of which (including any reports
or
filings under such policies and procedures since January 1, 2005 relating
to
compliance by the Broker-Dealer Subsidiary and their employees subject thereto)
have been delivered to Parent and, except as otherwise noted in any such
reports
or filings, the Broker-Dealer Subsidiary has been in compliance in all material
respects with such policies and procedures.
(f) Each
employee of the Company or any Investment Adviser Subsidiary or Broker-Dealer
Subsidiary (if any) who is required to be registered or licensed as a registered
representative, investment adviser representative, salesperson or equivalent
with any Governmental Entity is duly registered as such and such registration
is
in full force and effect, except where the failure to be so registered,
individually or in the aggregate, would not reasonably be expected to
have a Company Material Adverse Effect.
(g) None
of the Company or any of its Subsidiaries, or any “affiliated person” (as
defined in the Investment Company Act) of any thereof is ineligible pursuant
to
Section 9(a) or 9(b) of the Investment Company Act to serve in any capacity
referred to in Section 9(a) thereof to a registered investment
company. None of the Company or any of its Subsidiaries, or any
“associated person” (as defined in the Advisers Act or the Exchange Act) of any
thereof is ineligible pursuant to Section 203 of the Advisers Act or Section
15(b) of the Exchange Act to serve as a registered investment adviser or
broker
dealer or as an associated person of a registered investment adviser or broker
dealer.
(h) The
Company has made available to Parent a true and correct copy of each material
no-action letter and exemptive order issued by the SEC to any of the Company
or
its Subsidiaries or any Fund that remains applicable to its respective business
as conducted on the date of this Agreement. The Company, its
Subsidiaries, and the Funds are in compliance in all material respects with
any
such material no-action letters and exemptive orders.
(i) None
of the Company or its Subsidiaries is or since January 1, 2005 has been (i)
a
bank, trust company, commodity broker-dealer, real estate broker, insurance
company or insurance broker within the meaning of any applicable Law, (ii)
required to be registered, licensed or qualified as a bank, trust company,
commodity broker-dealer, real estate broker, insurance company or insurance
broker under any applicable Law or (iii) subject to any liability or disability
by reason of any failure to be so registered, licensed or
qualified. None of the Company or its Subsidiaries has received
notice of, and is not aware of any basis for, any pending proceeding concerning
any failure to obtain any bank, trust company, commodity broker-dealer, real
estate broker, insurance company or insurance broker registration, license
or
qualification.
Section
3.8 Financial
Reports and SEC Documents. The Company has filed or
furnished all forms, statements, certifications, reports and documents required
to be filed with, or furnished to, the SEC pursuant to the Exchange Act or
other
applicable securities statutes, regulations, policies and rules since December
31, 2005 (the forms, statements, reports and documents filed or furnished
with the SEC since December 31, 2005, including any exhibits and amendments
thereto, the “Company SEC Documents”). Each of the Company SEC
Documents, at the time of its filing or furnishing (except as and to the
extent
such Company SEC Document has been modified or superseded in any subsequent
Company SEC Document filed with, or furnished to, the SEC and publicly available
prior to the date of this Agreement), complied in all material respects with
the
applicable requirements of each of the Exchange Act and the Securities Act
of
1933, as amended, and the rules and regulations promulgated thereunder (the
“Securities Act”). As of their respective dates, except as and
to the extent modified or superseded in any subsequent Company SEC Document
filed or furnished with the SEC and publicly available prior to the date
of this
Agreement, the Company SEC Documents did not contain any untrue statement
of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements made therein, in light of the circumstances
in
which they were made, not misleading. The Company SEC Documents
included all certificates required to be included therein pursuant to Sections
302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and the rules
and
regulations promulgated thereunder (“SOX”), and the internal control
report and attestation of the Company’s outside auditors required by Section 404
of SOX. To the Company’s Knowledge, as of the date of this Agreement,
none of the Company SEC Documents is the subject of ongoing SEC review,
outstanding SEC investigation or outstanding material SEC comment.
(a) Each
of the consolidated balance sheets, statements of income, changes in
stockholders’ equity and cash flows of the Company and its Subsidiaries included
in or incorporated by reference into the Company SEC Documents (including
any
related notes and schedules) (i) fairly presents in all material respects
the
consolidated financial position of the Company and its Subsidiaries as of
the
date of each such balance sheet, and the results of operations and cash flows
of
the Company and its Subsidiaries, as the case may be, for the periods set
forth
in each such consolidated statement of income, changes in stockholders’ equity
and cash flows (subject, in the case of unaudited statements, to the absence
of
notes and normal year-end audit adjustments), and (ii) has in each case been
prepared in accordance with U.S. generally accepted accounting principles
(“GAAP”) consistently applied during the periods involved, except as may
be noted therein or in the notes thereto.
Section
3.9 Undisclosed
Liabilities. Except as and to the extent disclosed in the Company
SEC Documents or the Company Disclosure Letter, neither the Company nor any
of
its Subsidiaries has any liabilities or obligations of any nature (whether
or
not accrued, absolute, contingent, unliquidated or otherwise, whether due
or to
become due) other than (i) liabilities or obligations in the amounts reflected
on, or reserved against, in the Company’s consolidated balance sheet as of March
31, 2007 (or the notes thereto) included in the Company’s financial statements,
(ii) liabilities or obligations incurred in the ordinary course of business
consistent with past practice since ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) liabilities or
obligations that would not reasonably be expected to have, individually or
in
the aggregate, a Company Material Adverse Effect, and (iv) fees and expenses
actually incurred by the Company in connection with the transactions
contemplated by this Agreement.
Section
3.10 Absence
of Certain Changes.
(a) Since
December 31, 2006 through the date of this Agreement, the Company and its
Subsidiaries have conducted their respective businesses in all material respects
in the ordinary course of business consistent with past practice.
(b) Since
December 31, 2006, there has not been a Company Material Adverse Effect and
there has not been any change, event or development that, individually or
in the
aggregate, would reasonably be expected to have a Company Material Adverse
Effect.
(c) Since
December 31, 2006 through the date of this Agreement, there has not
been:
(i) any
declaration, setting
aside or payment of any dividend or other distribution with respect to any
shares of capital stock of the Company or any of its Subsidiaries other than
in
the ordinary course of business consistent with past practice;
(ii)
any split, combination or
reclassification of any of the capital stock or other equity interest of
the
Company or any of its Subsidiaries or any issuance or the authorization of
any
issuance of any other securities in respect of, in lieu of or in substitution
for shares of the capital stock or other equity interest of the Company or
any
of its Subsidiaries;
(iii)
any material change in accounting
methods, principles or practices used by the Company affecting its assets,
liabilities or business, except insofar as may have been required by a change
in
GAAP; or
(iv) any
amendments or
changes in the Company Organizational Documents.
(d) Except
(A) as required pursuant to the terms of any Company Benefit Plan (or related
trust agreement) as in effect on December 31, 2006, (B) as required to comply
with applicable Law (including Section 409A of the Code), (C) during the
period
ended March 31, 2007, in the ordinary course of business consistent
with past practice with respect to any non-executive officer or employee
of the
Company or any of its Subsidiaries or (D) for the period commencing April
1,
2007, in the ordinary course of business consistent with past practice with
respect to any person who is not a director of the Company or a Specified
Employee, since December 31, 2006 through the date of this Agreement, there
has
not been any (1) grant or payment of any severance or termination benefits
to
any director, officer or employee of the Company or any of its Subsidiaries,
(2)
increase in the compensation, perquisites or benefits payable to any director,
officer or employee of the Company or any of its Subsidiaries, (3) grant
of
equity or equity-based awards that may be settled in Shares, preferred stock
or
any other securities of the Company or any of its Subsidiaries or the value
of
which is linked directly or indirectly, in whole or in part, to the price
or
value of any Shares, preferred stock or other Company securities or Subsidiary
securities, (4) acceleration in the vesting or payment of compensation payable
or benefits provided or to become payable or to be provided to any current
or
former director, officer or employee of the Company or any of its Subsidiaries
or (5) establishment or adoption of any new arrangement that would be a Company
Benefit Plan or termination or amendment of any existing Company Benefit
Plan.
Section
3.11 Litigation. Except
as would not be material to the Company and its Subsidiaries, taken as a
whole,
there are no claims, actions, suits, demand letters, judicial, administrative
or
regulatory proceedings, or hearings, notices of violation, or, to the Company’s
Knowledge, investigations before any Governmental Entity (each, a “Legal
Action”) pending or, to the Knowledge of the Company, threatened, against
the Company or any of its Subsidiaries, other than any Legal Actions relating
to
the Merger and the other transactions contemplated by this
Agreement. There is no outstanding Order against the Company or any
of its Subsidiaries or by which any property, asset or operation of the Company
or any of its Subsidiaries is bound or affected, except as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section
3.12 Contracts.
(a) As
of the date of this Agreement, neither the Company nor any of its Subsidiaries
is a party to or bound by any Contract: (i) which is a “material contract”
(as such term is defined in Item 601(b)(10) of Regulation S-K promulgated
under the Securities Act) to be performed in full or in part after the date
of
this Agreement that has not been filed in the Company SEC Documents or in
the
Public Fund SEC Documents; (ii) which constitutes a contract or commitment
relating to material indebtedness of the Company or its Subsidiaries for
borrowed money (whether incurred, assumed, guaranteed or secured by any asset);
or (iii) which contains any provision that would prohibit or materially restrict
the ability of the Company or any of its Subsidiaries to operate in any
geographical area or compete or operate in any line of business in which
the
Company or such Subsidiary, as applicable, presently is engaged. Each
(A) contract, arrangement, commitment or understanding set forth in Section
3.12(a) of the Company Disclosure Letter, (B) contract, arrangement,
commitment or understanding described in clause (i) of this Section
3.12(a) whether or not set forth in the Company Disclosure Letter or in the
Company SEC Documents or the Public Fund SEC Documents and (C) agreement
to
which the Company or any of its Subsidiaries is a party and that is filed
as an
exhibit to a registration statement of a Public Fund as part of its Public
Fund
SEC Documents, whether or not described in clause (i) of this Section 3.12(a),
is referred to herein as a “Material Contract”.
(b) (i)
Each Material Contract is valid and binding on the Company and any of its
Subsidiaries that is a party thereto, as applicable, and in full force and
effect, other than any such Material Contract that expires or is terminated
after the date hereof in accordance with its terms or amended by agreement
with
the counterparty thereto (provided that, if any such Material Contract is
so amended or terminated in accordance with its terms after the date hereof
(provided such amendment or termination is not prohibited by the terms of
this Agreement), then to the extent the representation and warranty contained
in
this sentence is made or deemed made as of any date that is after the date
of
such amendment or termination, the reference to “Material Contract” in
the first clause of this sentence shall be deemed to be a reference to such
contract as so amended and shall be deemed to exclude any such terminated
contract), (ii) the Company and each of its Subsidiaries has in all material
respects performed all obligations required to be performed by it to date
under
each Material Contract, except where such noncompliance would not be material
to
the Company and its Subsidiaries, taken as a whole, and (iii) neither the
Company nor any of its Subsidiaries knows of, or has received notice of,
the
existence of any event or condition which constitutes, or, after notice or
lapse
of time or both, will constitute, a default on the part of the Company or
any of
its Subsidiaries under any such Material Contract, except where such default
would not, individually or in the aggregate, reasonably be expected to have
a
Company Material Adverse Effect.
Section
3.13 Benefit
Plans.
(a) Section
3.13(a) of the Company Disclosure Letter contains a list, as of the date of
this Agreement, of each material Company Benefit Plan. No entity
other than the Company and its Subsidiaries is a member of the Company’s
“controlled group” (within the meaning of Section 414 of the
Code). With respect to each material Company Benefit Plan, and with
respect to any Multiemployer Plan, to the extent in the Company’s possession or
control, the Company has provided or made available to Parent true, complete
and
correct copies of (i) each such Company Benefit Plan; (ii) the most recent
summary plan descriptions for each such Company Benefit Plan for which a
summary
plan description is required by applicable Law; (iii) the two most recent
annual
reports on Form 5500 filed with the Internal Revenue Service (“IRS”);
(iv) if the plan is intended to qualify under Section 401(a) of the Code,
the
most recent determination letter received from the IRS; (v) the most recent
actuarial report and/or financial statements, to the extent that any such
reports or financial statements are required under applicable Law to be prepared
with respect to such Company Benefit Plan; and (vi) any related trust agreement
or funding instrument now in effect or required in the future as a result
of the
transactions contemplated by this Agreement.
(b) Section
3.13(b) of the Company Disclosure Letter contains a list of each Company
Benefit Plan subject to Title IV of ERISA or Section 412 of the
Code. With respect to each such Company Benefit Plan (i) there does
not exist any accumulated funding deficiency within the meaning of Section
412
of the Code or Section 302 of ERISA, whether or not waived; (ii) no reportable
event within the meaning of Section 4043(c) of ERISA for which the thirty
(30)-day notice requirement has not been waived has occurred with respect
to
such Company Benefit Plan; (iii) neither the Company and its Subsidiaries
nor
the PBGC have instituted proceedings to terminate any such plan or made any
inquiry that would reasonably be expected to lead to termination of any such
plan, and, to the Company’s Knowledge, as of the date of this Agreement, no
condition exists that presents a risk that the PBGC will institute such
proceedings or which would constitute grounds under Section 4042 of ERISA
for
the termination of, or the appointment of a trustee to administer, any such
plan; and (iv) the Company has not taken any steps to terminate any such
plan
and has no plans to take any such steps prior to the Closing. No Company
Benefit
Plan is a Multiemployer Plan or a plan that has two or more contributing
sponsors, at least two of whom are not under common control, within the meaning
of Section 4063 of ERISA.
(c) Each
Company Benefit Plan, other than a Multiemployer Plan, that is intended to
qualify under Section 401(a) of the Code has been issued a favorable
determination letter by the IRS with respect to such qualification, its related
trust has been determined to be exempt from taxation under Section 501(a)
of the
Code and no such determination letter has been revoked nor, to the Knowledge
of
the Company has revocation been threatened. Each Company Benefit
Plan, other than a Multiemployer Plan, has been established, funded and
administered in compliance with its terms and with the applicable provisions
of
ERISA, the Code and other applicable Laws, other than instances of noncompliance
that would not, individually or in the aggregate, reasonably be expected
to have
a Company Material Adverse Effect. All contributions required by
applicable Law to have been made by the Company or its Subsidiaries as of
the
Effective Time with respect to each Company Benefit Plan in respect of current
or prior plan years have been made in all material respects or, except as
would
not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, such contributions have been accrued in all material
respects in accordance with GAAP.
(d) There
are no material Company Benefit Plans under which welfare benefits are provided
to past employees or made available to present employees of the Company and
its
Subsidiaries beyond their retirement or other termination of service, other
than
coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of
1985
(“COBRA”), Section 4980B of the Code, Title I of ERISA or any similar
state group health plan continuation Laws or other applicable Laws or the
full
cost of which is paid by such employees or their dependents. Except
as would not, individually or in the aggregate, reasonably be expected to
have a
Company Material Adverse Effect, the Company, its Subsidiaries and each other
entity that is a member of the Company’s “controlled group” (within the meaning
of Section 414 of the Code) have complied with the requirements of
COBRA.
(e) Neither
the execution and delivery by the Company of this Agreement nor the consummation
by the Company of the transactions contemplated hereby (alone or in combination
with any other event) would: (i) result in any payment becoming due, or increase
the amount of any compensation or benefits due, to any current or former
employee of the Company or its Subsidiaries or with respect to any Company
Benefit Plan; (ii) increase any benefits otherwise payable under any Company
Benefit Plan; (iii) result in the acceleration of the time of payment or
vesting
of any such compensation or benefits, other than vesting to comply with Section
401(a) of the Code; (iv) trigger the funding of any compensation or benefits
due
to any current or former employee of the Company or its Subsidiaries; or
(v)
result in any “excess parachute payment” within the meaning of Section 280G
of the Code pursuant to any Company Benefit Plan or other plan or agreement
as
in effect on the date of this Agreement, other than pursuant to any Company
Benefit Plan listed in Section 3.13(e) of the Company Disclosure
Letter.
(f) Except
as would not, individually or in the aggregate, reasonably be expected to
result
in a material liability, none of the Company, any of its Subsidiaries, or
any
Company Benefit Plan, nor to the Knowledge of the Company, any “disqualified
person” (as defined in Section 4975 of the Code) or “party in interest” (as
defined in Section 3(14) of ERISA) with respect to any Company Benefit Plan,
has
engaged in any non-exempt prohibited transaction (within the meaning of Section
4975 of the Code or Section 406 of ERISA) with respect to any Company Benefit
Plan. With respect to any Company Benefit Plan, other than a
Multiemployer Plan, (i) no Legal Actions (including any administrative
investigation, audit or other proceeding by the Department of Labor or the
IRS
but excluding routine claims for benefits in the ordinary course) are pending
or, to the Knowledge of the Company, threatened, and (ii) to the Knowledge
of
the Company, no events or conditions have occurred or exist that would
reasonably be expected to give rise to any such Legal Actions, except in
the
case of both clauses (i) and (ii), as would not, individually or in the
aggregate, reasonably be expected to result in a material
liability.
(g) Neither
the Company nor any of its Subsidiaries is a party to any collective bargaining
agreement, and, as of the date of this Agreement, there are not, to the
Knowledge of the Company, any union organizing activities concerning any
employees of the Company or any of its Subsidiaries that, individually or
in the
aggregate, would reasonably be expected to have a Company Material Adverse
Effect. As of the date of this Agreement there are no labor strikes,
slowdowns, work stoppages or lockouts pending or, to the Knowledge of the
Company, threatened, against the Company or any of its Subsidiaries that
would,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section
3.14 Taxes.
(a) All
material Tax Returns required to be filed by or with respect to the Company
or
any of its Subsidiaries have been properly prepared and timely filed, and
all
such Tax Returns are true, correct and complete in all material
respects. There are no adjustments relating to such Tax Returns that
have been proposed in writing by any Tax authority and there are no Tax liens
on
any of the Assets for Taxes that are not Permitted Liens.
(b) The
Company and its Subsidiaries have fully paid all material Taxes (whether
or not
shown to be due on the Tax Returns) required to be paid by any of
them. The Company and its Subsidiaries have made adequate provision
for any Taxes that are not yet due and payable for all taxable periods on
the
most recent financial statements contained in the Company SEC Documents to
the
extent required by GAAP or in the case of foreign entities, in accordance
with
generally applicable accounting principles in the relevant
jurisdiction.
(c) As
of the date of this Agreement, there are no outstanding agreements extending
or
waiving the statutory period of limitations applicable to any claim for,
or the
period for the collection, assessment or reassessment of, Taxes due from
the
Company or any of its Subsidiaries for any taxable period and, to the Knowledge
of the Company, no request for any such waiver or extension is currently
pending. The Company has not received any written requests for
information by any Tax authority that are currently outstanding that could
adversely affect the Taxes of the Company or any of its Subsidiaries; and
there
are no proposed material reassessments received in writing by the Company
of any
property owned by the Company or any of its Subsidiaries or other proposals
that
could materially increase the amount of any Tax to which the Company or any
of
its Subsidiaries would be subject.
(d) As
of the date of this Agreement, no audit or other proceeding by any Governmental
Entity is pending or, to the Knowledge of the Company, threatened with respect
to any Taxes due from or with respect to the Company or any of its
Subsidiaries.
(e) Neither
the Company nor any of its Subsidiaries is a party to any Tax sharing or
similar
Tax agreement (other than an agreement exclusively between or among the Company
and its Subsidiaries) pursuant to which it will have any obligation to make
any
payments on account of Taxes after the Closing Date. Neither the
Company nor any of its Subsidiaries has any liability as a result of being
or
having been before the Closing Date a member of an affiliated, consolidated,
combined or unitary group, other than a group of which the Company and its
Subsidiaries are currently members, or as a result of a Tax sharing, Tax
indemnity or Tax allocation agreement.
(f) Neither
the Company nor any of its Subsidiaries has distributed stock of another
Person
or had its stock distributed by another Person in a transaction that was
intended to be governed in whole or in part by Section 355 or 361 of the
Code in
the two (2) years prior to the date of this Agreement.
(g) Neither
the Company nor any of its Subsidiaries has, to the Knowledge of the Company,
“participated” in a “reportable transaction” within the meaning of Treasury
Regulation Section 1.6011-4, other than a transaction exempted from the
reporting requirements of such Regulation.
Section
3.15 Intellectual
Property.
(a) Except
as would not, individually or in the aggregate, reasonably be expected to
have a
Company Material Adverse Effect, (i) the Company or one or more of its
Subsidiaries own all rights, title and interest in and to, or otherwise has
a
valid right to use, all Intellectual Property necessary to conduct their
business as it is conducted as of the date of this Agreement; (ii) there
are no
Legal Actions instituted or pending against the Company or any of its
Subsidiaries or, to the Knowledge of the Company, threatened in writing since
December 31, 2005 by any Person, contesting or challenging the right of the
Company or any of its Subsidiaries to use any of the Intellectual Property
owned
or used by the Company or any of its Subsidiaries in the conduct of their
business or alleging that such Intellectual Property infringes or otherwise
violates the Intellectual Property of any third party; and to the Knowledge
of
the Company, no Person is infringing or otherwise violating any of the
Intellectual Property owned or used by the Company or any of its Subsidiaries
in
any material respect; and (iii) neither the Company nor any of its Subsidiaries
has received any written notice claiming that it has infringed or otherwise
violated any Intellectual Property of any third party. To the
Knowledge of the Company, the Company and its Subsidiaries are in compliance
in
all material respects with applicable Laws relating to data protection and
privacy and their own privacy policies.
(b) Section
3.15(b) of the Company Disclosure Letter sets forth all
material registered trademarks and registered service marks, trademark and
service ▇▇▇▇ registration applications, domain name registrations, copyright
registrations, copyright registration applications, patents and patent
applications owned as of the date of this Agreement by the Company or its
Subsidiaries.
Section
3.16 Title to
Real Properties. Neither the Company nor any of its Subsidiaries
owns any real property. The Company and each of its Subsidiaries have
good and valid leasehold interests in all real property leased by them, except
as would not, individually or in the aggregate, reasonably be expected to
have a
Company Material Adverse Effect. With respect to all leases under
which the Company or any of its Subsidiaries lease any real property, such
leases are in good standing, valid and effective against the Company or any
of
its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto, in
accordance with their respective terms, and there is not, under any of such
leases any existing default by the Company or any of its Subsidiaries or,
to the
Company’s Knowledge, the counterparties thereto, or any event which, with notice
or lapse of time or both, would become a default by the Company or any of
its
Subsidiaries or, to the Company’s Knowledge, the counterparties thereto, other
than failures to be in good standing and defaults under such leases which
would
not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section
3.17 Funds;
Assets Under Management.
(a) The
Aggregate Base Revenue Run-Rate is set forth in Section 3.17(a) of the
Company Disclosure Letter.
(b) Each
Public Fund is duly registered with the SEC as an investment company under
the
Investment Company Act and has, since January 1, 2005, filed all Public Fund
SEC
Documents in compliance in all material respects with the Securities Act
and the
Investment Company Act, except where the failure by any such Public Fund
to so
file, individually or in the aggregate, would not reasonably be expected
to have
a Company Material Adverse Effect.
(c) Each
Fund that is a juridical entity is duly organized, validly existing and,
with
respect to entities in jurisdictions that recognize the concept of “good
standing,” in good standing under the laws of the jurisdiction of its
organization and has the requisite corporate, trust, company or partnership
power and authority to own its properties and to carry on its business as
currently conducted, and is qualified to do business in each jurisdiction
where
it is required to be so qualified under applicable Law (except where failure
to
do so is not material to its business).
(d) Each
Fund currently is, and has since January 1, 2005 (or, if later, its inception),
operated in compliance in all material respects (A) with applicable Law and
(B)
with its respective investment objectives, policies and
restrictions.
(e) The
shares or units of each Fund (A) have been issued and sold in compliance
with
applicable Law in all material respects and (B) are registered or qualified
for
public offering and sale in each jurisdiction where offers are made to the
extent required under applicable Law.
(f) Since
January 1, 2005, each Public Fund has filed all Public Fund SEC Documents
in
compliance in all material respects with applicable Law. Since
January 1, 2005, each Public Fund’s (A) prospectus (including supplements
thereto) forming the part of any registration statement filed with the SEC
under
the Securities Act and the Investment Company Act and (B) annual and semi-annual
shareholder reports filed with the SEC pursuant to Section 30 of the Investment
Company Act did not at the time they were filed, and did not during the period
of their authorized use, contain any untrue statement of a material fact
or omit
to state a material fact required to be stated therein or necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were or are made, not misleading.
(g) Each
such Public Fund has duly adopted written policies and procedures required
by
Rule 38a-1 under the Investment Company Act and, to the Knowledge of the
Company, all such policies and procedures comply in all material respects
with
the applicable Law.
(h) All
payments made with respect to those Public Funds that are registered under
the
Investment Company Act as an open-end management investment company and relating
to the distribution of their shares (other than payments that are not required
by applicable Law to be paid pursuant to a 12b-1 Plan) have been made in
compliance in all material respects with the related 12b-1 Plan adopted by
such
open-end Public Funds, and such payments and the operation of each such 12b-1
Plan complies in all material respects with Rule 12b-1 of the Investment
Company
Act and other applicable Law.
(i) For
all taxable years since its inception, each of the Public Funds has elected
to
be treated as, and has qualified to be classified as, a regulated investment
company taxable under Subchapter M of Chapter 1 of the Code.
(j) The
most recent annual report to shareholders of each Public Fund, comprising
part
of the Public Fund SEC Documents of such Public Fund, describes the respective
total net assets for each such Public Fund and the respective fees payable
to
the Investment Adviser Subsidiary by each Public Fund under the applicable
Investment Advisory Arrangement, each as of the date of such annual
report.
(k) Each
Investment Advisory Arrangement subject to Section 15 of the Investment Company
Act to which any Investment Adviser Subsidiary is a party has been duly approved
and, if applicable, continued and is in compliance in all material respects
with
the Investment Company Act. Since January 1, 2005, each such
Investment Advisory Arrangement has been performed by the applicable Investment
Adviser Subsidiary in accordance with its terms and with the Investment Company
Act and other applicable Law, in each case, in all material
respects.
(l) Since
January 1, 2005, each Investment Advisory Arrangement with a Client other
than a
Public Fund has been performed by the applicable Subsidiary in accordance
with
its terms and with the Advisers Act and other applicable Law, in each case,
in
all material respects.
Section
3.18 Takeover
Statutes; No Rights Agreement; Company Certificate. The
approval by the Company Board of this Agreement, the
Merger and the other transactions contemplated by this Agreement constitutes
approval of this Agreement, the Merger and the other transactions contemplated
by this Agreement for purposes of Section 203 of the DGCL
and represents the only action necessary to ensure that none of the restrictions
provided for in Section 203 of the DGCL apply or will apply to the execution,
delivery, performance and consummation of this Agreement, the Merger and
the
other transactions contemplated by this Agreement.
(b) The
Company and the Company Board have taken all necessary action, if any, in
order
to render inapplicable any control share acquisition, business combination
or
other similar anti-takeover provision under the Company Certificate (including
article eleventh thereof) or the laws of Delaware or any other jurisdiction
that
is, or is reasonably likely to become, applicable to the Company as a result
of
the transactions contemplated by this Agreement, including the
Merger.
(c) The
Company has not adopted a stockholder rights plan or similar arrangement
relating to accumulations of beneficial ownership of Common Stock upon a
change
in control of the Company.
Section
3.19 Opinion
of Financial Advisor. ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. (the “Committee
Financial Advisor”) has delivered to the Special Committee its written
opinion (or oral opinion confirmed in writing) to the effect that, as of
the
date of this Agreement, the Merger Consideration is fair to the
stockholders of the Company from a financial point of view. The Company will
provide to Parent a true, complete and correct copy of such written opinion
solely for informational purposes following receipt thereof by the Special
Committee.
Section
3.20 Brokers
and Finders. Other than the Committee Financial Advisor, no
broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the Merger or the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of
the Company or any of its Subsidiaries.
Section
3.21 Interested
Party Transactions. Except for employment Contracts entered into
in the ordinary course of business consistent with past practice or filed
as an
exhibit to a Company SEC Document, Section 3.21 of the Company Disclosure
Letter sets forth a list, as of the date hereof, of the Contracts or other
arrangements under which the Company has any existing or future liabilities
required to be reported by the Company pursuant to Item 404 of Regulation
S-K
promulgated by the SEC (each such Contract or other arrangement, an
“Affiliate Transaction”).
Section
3.22
Indebtedness. Section 3.22 of the Company Disclosure
Letter sets forth a list, as of the date of this Agreement, of the outstanding
indebtedness for borrowed money in excess of $1,000,000 of, and of the
outstanding guarantees of indebtedness for borrowed money in excess of
$1,000,000 of any Person by, the Company and each of its
Subsidiaries.
Section
3.23 No Other
Representations or Warranties. Except for the representations and
warranties contained in this Article III or in any certificates delivered
by the Company in connection with the Closing, each of Parent and Merger
Sub
acknowledges that neither the Company nor any Person on behalf of the Company
makes or has made any other express or implied representation or warranty
with
respect to the Company or any of its Subsidiaries or with respect to any
other
information provided or made available to Parent or Merger Sub in connection
with the transactions contemplated by this Agreement.
REPRESENTATIONS
AND WARRANTIES OF PARENT AND MERGER SUB
Except
as
set forth in the letter (the “Acquiror Disclosure Letter”) delivered by
Parent and Merger Sub to the Company concurrently with the execution of this
Agreement (it being understood that any information set forth in a particular
section or subsection of the Acquiror Disclosure Letter shall be deemed to
be
disclosed in each other section or subsection thereof to which the relevance
of
such information is reasonably apparent on its face), Parent and Merger Sub
hereby jointly and severally represent and warrant to the Company as
follows:
Section
4.1 Organization
and Power. Parent is a corporation, duly organized, validly
existing and in good standing under the Laws of the State of Delaware and
has
the requisite power and authority to own, lease and operate its assets and
properties and to carry on its business as now conducted and as it will be
conducted through the Effective Time. Merger Sub is a corporation,
duly organized, validly existing and in good standing under the Laws of the
State of Delaware and has the requisite power and authority to own, lease
and
operate its assets and properties and to carry on its business as now conducted
and as it will be conducted through the Effective Time.
Section
4.2
Corporate Authorization. Parent and Merger Sub each have
the requisite corporate or other power and authority to enter into and to
perform their respective obligations under this Agreement and to consummate
the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement by each of Parent and Merger Sub and the
consummation by each of Parent and Merger Sub of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate action
on the part of each of Parent and Merger Sub.
Section
4.3 Enforceability. This
Agreement has been duly executed and delivered by each of Parent and Merger
Sub
and, assuming the due authorization, execution and delivery of this Agreement
by
the Company, constitutes a legal, valid and binding agreement of each of
Parent
and Merger Sub, enforceable against each of Parent and Merger Sub in accordance
with its terms, except to the extent that the enforcement thereof may be
limited
by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other similar Laws now or hereafter in effect relating to creditor’s rights
generally, (b) general principles of equity (regardless of whether such
enforcement is considered in a proceeding at law or in equity), and (c) the
remedy of specific performance and injunctive and other forms of equitable
relief being subject to the discretion of the Governmental Entity before
which
any enforcement proceeding therefor may be brought.
Section
4.4 Required
Filings and Consents. The execution, delivery and performance of
this Agreement by each of Parent and Merger Sub and the consummation by each
of
Parent and Merger Sub of the transactions contemplated by this Agreement
do not
and will not require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Entity other than: (a) the
filing of the Certificate of Merger with the Secretary of State of the State
of
Delaware; (b) applicable requirements of the Exchange Act; (c) compliance
with
and filings under (i) the HSR Act and (ii) any applicable requirements of
any
Foreign Merger Control Law; and (d) in such other circumstances where the
failure to obtain such consents, approvals, authorizations or permits, or
to
make such filings or notifications, would not, individually or in the aggregate,
reasonably be expected to have a Merger Sub Material Adverse
Effect.
Section
4.5 Non
Contravention. The execution, delivery and performance of this
Agreement by each of Parent and Merger Sub and the consummation by each of
Parent and Merger Sub of the transactions contemplated by this Agreement,
including the Merger, do not and will not:
(a) conflict
with, or result in any breach of any provision of the organizational documents
of either Parent or Merger Sub;
(b) contravene
or conflict with, or result in any violation of breach of, any Permit of
the
Company or any of its Subsidiaries except as would not, individually or in
the
aggregate, reasonably be expected to have a Merger Sub Material Adverse Effect;
or
(c) violate
the provisions of any Law applicable to either Parent or Merger Sub or any
of
Merger Sub’s Subsidiaries except for any such violations as would not,
individually or in the aggregate, reasonably be expected to have a Merger
Sub
Material Adverse Effect.
Section
4.6 Financing. True,
complete and correct copies of the following documents have been delivered
to
the Company: (i) the fully executed commitment letters, dated as of the date
of
this Agreement (the “Debt Financing Commitments”), pursuant to which
the counterparties thereto have committed, subject to the
terms and conditions thereof, to lend to Parent and/or Merger Sub the amounts
set forth therein (the “Debt Financing”), and (ii) the fully
executed equity commitment letters, dated as of the date of this Agreement,
from
the Guarantors (the “Equity Financing Commitments” and together with
the Debt Financing Commitments, the “Financing Commitments”), pursuant to
which such parties have committed, subject to the terms and conditions thereof,
to provide or cause to be provided to Parent and/or Merger Sub the cash amounts
set forth therein (the “Equity Financing” and together with the Debt
Financing, the “Financing”). The Financing Commitments are the
only agreements that have been entered into by Parent or its Affiliates with
respect to the Financing that contain conditions of the closing to the
Financing. Except to the extent permitted by Section 5.13(c),
none of the Financing Commitments has been amended or modified, and the
respective commitments contained in the Financing Commitments have not been
withdrawn or rescinded in any respect. Except to the extent permitted by
Section 5.13(c), each of the Financing Commitments, in the form so
delivered, is in full force and effect and is a legal, valid and binding
obligation of Parent and/or Merger Sub. No event has occurred which,
with or without notice, lapse of time or both, would constitute a default
or
breach on the part of Parent and/or Merger Sub under any term or condition
of
the Financing Commitments. Parent and/or Merger Sub has fully paid
any and all commitment fees or other fees incurred in connection with the
Financing Commitments that have become due and payable. Subject to
its terms and conditions, the Financing, when funded in accordance with the
Financing Commitments, together with cash on hand from operations of the
Company
and its Subsidiaries, will provide funds at the Closing and at the Effective
Time sufficient to consummate the Merger upon the terms contemplated by this
Agreement and to pay all related fees and expenses associated therewith,
including payment of all amounts under Article II of this
Agreement. There are no conditions precedent or other contingencies
to the funding of the full amount of the Financing other than as set forth
in
the Financing Commitments. Assuming the accuracy of the
representations and warranties of the Company set forth in
Article III of this Agreement and the Company’s compliance with its
covenants herein required to be performed prior to the Effective Time, as
of the
date of this Agreement, Parent and Merger Sub have no reason to believe that
any
of the conditions precedent to the Financing will not be satisfied in connection
with the consummation of the transactions contemplated by this Agreement
or that
the Financing will not be available to Parent and/or Merger Sub on the Closing
Date.
Section
4.7 Operations
of Parent and Merger Sub. Each of Parent and Merger Sub was
formed solely for the purpose of engaging in the transactions contemplated
by
this Agreement and has not engaged in any business activities or conducted
any
operations other than in connection with the transactions contemplated by
this
Agreement.
Section
4.8 Solvency. Assuming
(1) the Company is solvent immediately prior to the Effective Time, (2)
satisfaction of the conditions to the obligation of Parent and Merger Sub
to
consummate the Merger, or waiver of such conditions, and (3) the accuracy
and
completeness of the representations and warranties of the Company contained
herein, after giving effect to all of the transactions contemplated hereby,
including the Financing, any alternative financing, the payment of the aggregate
Merger Consideration and payment in respect of the Options contemplated by
Section 2.4, and payment of all related fees and expenses, each of Parent
and the Surviving Corporation will be Solvent. For the purposes of
this Section 4.8, the term “Solvent” when used with respect to any
Person, means that, as of any date of determination, (a) the amount of the
“fair
saleable value” of the assets of such Person on a going concern basis will, as
of such date, exceed (i) the value of all “liabilities of such Person, including
contingent and other liabilities,” as of such date, as such quoted terms are
generally determined in accordance with applicable federal laws governing
determinations of the insolvency of debtors, and (ii) the amount that will
be
required to pay the probable liabilities of such Person on its existing debts
(including contingent liabilities) as such debts become absolute and matured,
(b) such Person will not have, as of such date, an unreasonably small amount
of
capital for the operation of the businesses in which it is engaged or proposed
to be engaged following such date, and (c) such Person will be able to pay
its
liabilities, including contingent and other liabilities, as they
mature. For purposes of this definition, each of the phrases “not
have an unreasonably small amount of capital for the operation of the businesses
in which it is engaged or proposed to be engaged” and “able to pay its
liabilities, including contingent and other liabilities, as they mature” means
that such Person will be able to generate enough cash from operations, asset
dispositions or refinancing, or a combination thereof, to meet its obligations
as they become due.
Section
4.9 Guarantees. Concurrently
with the execution of this Agreement, Parent has caused each of the Guarantors
to deliver to the Company a duly executed Guarantee. Each of the
Guarantees is in full force and effect and is the valid, binding and enforceable
obligation of the corresponding Guarantor, and no event has occurred, which
with
or without notice, lapse of time or both, would constitute a default on the
part
of the Guarantors under any of the Guarantees.
Section
4.10 Management
Agreements. Except as contemplated in this Agreement, there are
no Contracts, understandings or arrangements between Parent or Merger Sub
or any
of their Affiliates, on the one hand, and any member of the Company’s management
or the Company Board, on the other hand. Neither Parent nor Merger
Sub, alone or together with any other Person, has been at any time, or became,
an “interested stockholder” or has taken any action that would cause any
anti-takeover statute under the DGCL to be applicable to this Agreement,
the
Merger or any other transaction contemplated by this Agreement.
Section
4.11 No Other
Representations and Warranties. Except for the representations
and warranties contained in this Article IV or in any certificates
delivered by Parent or Merger Sub in connection with the Closing, the Company
acknowledges that neither Parent, Merger Sub nor any Person on behalf of
Parent
or Merger Sub makes or has made any other express or implied representation
or
warranty with respect to Parent or Merger Sub or with respect to any other
information provided or made available to the Company in connection with
the
transactions contemplated by this Agreement.
39
COVENANTS
Section
5.1 Conduct
of Business of the Company. Except as expressly required by this
Agreement or as set forth in Section 5.1 of the Company Disclosure Letter
or otherwise required by Law, from the date of this Agreement until the
earlier
of the Effective Time or the termination of this Agreement in accordance
with
Article VII, the Company will, and will cause each of its Subsidiaries
to, (x) conduct its operations in all material respects in the ordinary
course
of business consistent with past practice, and (y) use its commercially
reasonable efforts to maintain and preserve intact its business organization,
including the services of its key employees and the goodwill of its customers,
lenders, distributors, suppliers, regulators and other Persons with whom
it has
material business relationships. Without limiting the generality of
the foregoing, except with the prior written consent of Parent, as expressly
contemplated by this Agreement or as set forth in Section 5.1 of the
Company Disclosure Letter or otherwise required by Law, from the date of
this
Agreement until the earlier of the Effective Time or the termination of
this
Agreement in accordance with Article VII, the Company will not, and will
cause each of its Subsidiaries not to, take any of the following
actions:
(a) propose
or adopt any changes to the Company Organizational Documents;
(b) make,
declare, set aside, or pay any dividend or distribution on any shares of
its
capital stock or membership interests; provided that the Company may
continue to pay quarterly cash dividends not in excess of $0.24 per Share
and
with record dates for the quarterly periods ending September 30, 2007,
December
31, 2007 and March 31, 2008 of no earlier than September 4, 2007, December
3, 2007 and March 3, 2008, respectively; and provided further that
no quarterly dividend will be declared with respect to the quarter in which
the
Effective Time occurs unless the Effective Time is after the record date
for
such quarter. This Section 5.1(b) shall not apply to dividends
or distributions paid by a Subsidiary to the Company or any wholly owned
Subsidiary of the Company in the ordinary course of business consistent
with
past practice;
(c) (i)
adjust, split, combine or reclassify or otherwise amend the terms of its
capital
stock or membership interests, (ii) repurchase, redeem, purchase, acquire,
encumber, pledge, dispose of or otherwise transfer, directly or indirectly,
any
shares of its capital stock, membership interests or any securities or
other
rights convertible or exchangeable into or exercisable for any shares of
its
capital stock, membership interests or such securities or other rights,
or offer
to do the same, other than (A) the acquisition by the Company of shares
of
Common Stock in connection with the surrender of shares of Common Stock
by
holders of Company Stock Options in order to pay the exercise price of
the
Company Stock Options, (B) the withholding of shares of Common Stock to
satisfy
tax obligations with respect to awards granted pursuant to the Company
Stock
Plans, (C) the acquisition by the Company of Company Stock Options, Company
Restricted Shares and Company RSUs in connection with the forfeiture of
such
awards, and (D) the acquisition on the open market by the trustee of the
Company
401(k) Plan of shares of Common Stock in order to satisfy participant investment
elections under the Company 401(k) Plan, (iii) issue, grant, deliver or
sell any
shares of its capital stock or any securities or other rights convertible
or
exchangeable into or exercisable for any shares of its capital stock, membership
interests or such securities or rights other than (A) pursuant to the exercise
of Company Stock Options and settlement of Company RSUs outstanding as
of the
date of this Agreement, in all cases in accordance with the terms of the
applicable award or plan as in effect on the date of this Agreement, (B)
as
required pursuant to any Company Benefit Plan as in effect on the date
of this
Agreement and (C) the sale by the trustee of the Company 401(k) Plan of
shares
of Common Stock in order to satisfy participant investment elections under
the
Company 401(k) Plan, (iv) enter into any Contract, understanding or arrangement
with respect to the sale, voting, pledge, encumbrance, disposition, acquisition,
transfer, registration or repurchase of its capital stock or such securities
or
other rights, except in each case as permitted under Section 5.1(d), or
(v) register for sale, resale or other transfer any Shares under the Securities
Act on behalf of the Company or any other Person;
(d) except
(i) in the case of directors, officers and employees of the Company or
its
Subsidiaries (other than Specified Employees), in the ordinary course of
business, (ii) as required pursuant to the terms of any Company Benefit
Plan (or
related trust agreement) as in effect on the date of this Agreement and,
in the
case of any material Company Benefit Plan, disclosed to Parent, (iii) as
required to comply with Section 409A of the Code or (iv) as otherwise expressly
permitted by this Agreement, (A) increase the compensation or benefits
payable
or to become payable to any past or present directors, officers or employees
of
the Company or its Subsidiaries or enter into any bonus or incentive arrangement
with, or pay or promise to pay any bonus or incentive compensation to,
any past
or present directors, officers or employees of the Company or its Subsidiaries,
(B) grant or pay any severance or termination pay to any of the past or
present
directors, officers or employees of the Company or its Subsidiaries, (C)
enter
into any new employment or severance agreement with any of its past or
present
directors, officers or employees of the Company or its Subsidiaries, (D)
establish, adopt, enter into, amend or take any action to accelerate rights
or
fund benefits under any Company Benefit Plan or any plan, agreement, program,
policy, trust, fund or other arrangement that would be a Company Benefit
Plan if
it were in existence as of the date of this Agreement, or (E) contribute
any
funds to a “rabbi trust” or similar grantor trust; provided,
however, that subject to Section 5.1(q) the foregoing clauses (A),
(C) and (D) shall not restrict the Company or any of its Subsidiaries from
entering into or making available to newly hired employees or to employees
in
the context of promotions based on job performance or workplace requirements,
in
each case in the ordinary course of business, plans, agreements, benefits
and
compensation arrangements (including cash incentive grants but excluding
equity-based compensation) that have a value that is consistent with the
past
practice of making compensation and benefits available to newly hired or
promoted employees in similar positions;
(e) sell,
lease or otherwise dispose of any assets or securities with a value in
excess of
$10,000,000, including by merger, consolidation, asset sale or other business
combination or by property transfer, other than (i) sales of assets or
securities or licenses or other dispositions of Intellectual Property in
the
ordinary course of business consistent with past practice and (ii) sales
of Seed
Capital Investments;
(f) other
than in the ordinary course of business consistent with past practice or
as
required by the terms of any existing agreement to which the Company or
any of
its Subsidiaries is a party, mortgage or pledge any material assets (tangible
or
intangible and including stock or membership interest in a Subsidiary),
or
create, assume or suffer to exist any Liens thereupon, other than, in all
cases,
Permitted Liens;
(g) make
any acquisitions, by purchase or other acquisition of stock or other equity
interests, or by merger, consolidation or other business combination or
make any
purchases of any property or assets from any Person (other than a wholly
owned
Subsidiary of the Company), in all such cases other than (i) purchases
of
current assets in the ordinary course of business consistent with past
practice
and (ii) acquisitions of Seed Capital Investments;
(h) take
any action that (i) would prevent any Public Fund from qualifying as a
“regulated investment company” under Section 851, or (ii) would be materially
inconsistent with the prospectuses and other offering, advertising and
marketing
materials, as amended or supplemented, of any Public Fund then engaging
in a
public offering of its shares;
(i) incur,
assume, guarantee or prepay any indebtedness for borrowed money or offer,
place
or arrange any issue of debt securities or commercial bank or other credit
facilities, other than (i) incurrence of indebtedness under the Company’s
existing revolving credit facility that does not cause the principal amount
of
outstanding indebtedness under such credit facility to exceed $100,000,000
at
any time and (ii) prepayments of indebtedness under the Company’s existing
revolving credit facility;
(j) make
any loans, advances or capital contributions to, or investments in, any
other
Person, other than contributions or investments (i) to or in Subsidiaries,
(ii)
among Subsidiaries, (iii) between Subsidiaries and the Company, (iv) in
Seed
Capital Investments and (v) constituting advances of expenses to employees
in
the ordinary course of business consistent with past practice;
(k) authorize
or make any capital expenditure, other than capital expenditures during
the
period from the date hereof through the Closing Date in the ordinary course
of
business consistent with past practice not in excess
of $5,000,000 in any one project or $12,000,000 in the
aggregate;
(l) change
its financial accounting policies or procedures, other than as required
by Law
or GAAP, or write up, write down or write off the book value of any assets
of
the Company and its Subsidiaries, including writing down the value of inventory
in any material manner, other than in any such case (i) in the ordinary
course
of business consistent with past practice, or (ii) as may be required by
Law or
GAAP;
(m) waive,
release, assign, settle or compromise any Legal Action, other than waivers,
releases, assignments, settlements or compromises that involve only the
payment
of monetary damages not in excess of $10,000,000 in the
aggregate for all such Legal Actions, in any case without the imposition
of any
restrictions on the business and operations of the Company or any of its
Subsidiaries;
(n) (i)
settle or compromise any material Tax audit, make or change any material
Tax
election or file any material amendment to a material Tax Return, (ii)
except as
required by applicable Law, change any annual Tax accounting period or
adopt or
change any material Tax accounting method, or (iii) enter into any material
closing agreement, surrender any right to claim a material refund of Taxes
or
consent to any extension or waiver of the limitation period applicable
to any
material Tax claim or assessment relating to the Company or its
Subsidiaries;
(o) other
than as otherwise permitted hereunder, enter into, amend in any material
respect, waive any material right or obligation under or terminate (other
than
terminations in accordance with their terms) any Affiliate
Transaction;
(p) enter
into, or amend or modify in any material respect, any Material Contract
(or any
agreement that, if entered into prior to the date of this Agreement, would
have
been a Material Contract), except that the Company and the Subsidiaries
may (i)
other than in connection with and in respect of any Public Fund Consent
contemplated in
Section 5.14(b), enter into, amend or modify any Material Contract (or any agreement that, if entered into prior to the date of this Agreement, would have been a Material Contract) with a Public Fund in the ordinary course of business consistent with past practice and (ii) in connection with and in respect of any Public Fund Consent contemplated by Section 5.14(b), so long as the Company and the applicable Investment Adviser Subsidiary have complied with Section 5.14(b), enter into, amend or modify any Material Contract (or any agreement that, if entered into prior to the date of this Agreement, would have been a Material Contract) with a Public Fund;
Section 5.14(b), enter into, amend or modify any Material Contract (or any agreement that, if entered into prior to the date of this Agreement, would have been a Material Contract) with a Public Fund in the ordinary course of business consistent with past practice and (ii) in connection with and in respect of any Public Fund Consent contemplated by Section 5.14(b), so long as the Company and the applicable Investment Adviser Subsidiary have complied with Section 5.14(b), enter into, amend or modify any Material Contract (or any agreement that, if entered into prior to the date of this Agreement, would have been a Material Contract) with a Public Fund;
(q) hire
or terminate any “Executive Officer” (as such term is defined in Rule 3b-7
promulgated under the Exchange Act), promote any existing Executive Officer
to a
more senior position or otherwise appoint or promote any current director,
employee, independent contractor or consultant to an Executive Officer
position,
except that the Company may (i) make terminations for cause (as defined,
if
applicable, in the relevant employment agreement) and (ii) hire, promote
or
appoint any person to replace any Executive Officer no longer employed
by the
Company or its Subsidiaries (other than as a result of the termination
of such
Executive Officer by the Company without cause) after consultation with
Parent
(it being understood that the Company will not hire a chief investment
officer
of the Company without Parent’s prior written consent); or
(r) agree
or commit to do any of the foregoing.
Section
5.2 Access
to Information; Confidentiality.
(a) Subject
to applicable Law and the Confidentiality Agreement and, solely with respect
to
financing sources that are not a party to any Confidentiality Agreement
as of
the date of this Agreement, other confidentiality provisions reasonably
acceptable to the Company, the Company will provide and will cause its
Subsidiaries and its and their respective Representatives to provide Parent
and
its Representatives and financing sources, at Parent’s expense, during normal
business hours and upon reasonable advance notice (i) such access to the
officers, management employees, offices, properties, books and records
of the
Company and such Subsidiaries (so long as such access does not unreasonably
interfere with the operations of the Company or the performance of their
duties)
as Parent reasonably may request, and (ii) subject to applicable Law and
the
Company’s existing written policies with respect to the protection of employee
privacy and protection of attorney-client privilege and attorney work product,
all documents that Parent reasonably may request.
(b) No
investigation by any of the parties or their respective Representatives
shall
affect the representations, warranties, covenants or agreements of the
other
parties set forth herein. The Company makes no representation or
warranty as to the accuracy of any information provided pursuant to Section
5.2(a), and neither Merger Sub nor Parent may rely on the accuracy of any
such information, in each case other than as expressly set forth in the
Company’s representations and warranties contained in
Article III.
(c) All
non-public or otherwise confidential information regarding the Company
or any of
its Subsidiaries obtained by Parent or its Representatives shall be kept
confidential by Parent and its Representatives in accordance with the
Confidentiality Agreement; provided that Parent and its Representatives
shall be permitted to disclose information as necessary and consistent
with
customary practices in connection with the Debt Financing to the extent
consistent with the terms of the Confidentiality Agreement with respect
to
Representatives thereunder or otherwise upon the prior written consent
of the
Company.
Section
5.3 Limitations
on Solicitation.
(a) Notwithstanding
any other provision of this Agreement to the contrary, during the period
beginning on the date of this Agreement and continuing until 5:00 p.m.,
New York
City time, on July 19, 2007 (the “Solicitation Period End-Time”), the
Company and its Representatives shall have the right (acting under the
direction
of the Special Committee, if in existence, and otherwise under the direction
of
the Company Board) to directly or indirectly: (i) initiate, solicit and
encourage, whether publicly or otherwise, Takeover Proposals, including
by way
of providing access to non-public information (but only pursuant to one
or more
Acceptable Confidentiality Agreements); provided that the Company shall
promptly provide to Parent any non-public information concerning the Company
or
its Subsidiaries that is provided to any Person given such access which
was not
previously provided to Parent or Merger Sub; and (ii) enter into and maintain
discussions or negotiations with respect to Takeover Proposals or otherwise
cooperate with or assist or participate in, or facilitate any such discussions
or negotiations or the making of any Takeover Proposal.
(b) Subject
to Section 5.3(c) and Section 5.3(e):
(i) The
Company shall not, and shall cause its Subsidiaries and Representatives
not to,
directly or indirectly, from the Solicitation Period End-Time until the
Effective Time, approve or recommend, or publicly propose to approve or
recommend, a Takeover Proposal, or effect a Recommendation Change, or enter
into
any merger agreement, letter of intent, agreement in principle, purchase
agreement, option agreement or other similar agreement relating to a Takeover
Proposal, or enter into any agreement or agreement in principle requiring
the
Company to abandon, terminate or fail to consummate the transactions
contemplated hereby or to breach its obligations hereunder or resolve,
propose
or agree to do any of the foregoing.
(ii) Except
with respect to any written Takeover Proposal received after the date hereof
and
prior to the Solicitation Period End-Time with respect to which the requirements
of Sections 5.3(c)(i) and 5.3(c)(ii) have been satisfied as of the
Solicitation Period End-Time and thereafter (any Person so submitting such
a
Takeover Proposal and any group that includes any such Person, so long
as such
Person and the other members of such group, if any, who were members of
such
group immediately prior to the Solicitation Period End-Time include the
lead
investor in such group and constitute at least 50% of the equity financing
of
such group at all times following the Solicitation Period End-Time, an
“Excluded Party”), the Company shall not and shall cause its Subsidiaries
and Representatives not to, directly or indirectly, from the Solicitation
Period
End-Time until the Effective Date, initiate, solicit or encourage (including
by
way of providing information) the submission of any inquiries, proposals
or
offers that constitute or may reasonably be expected to lead to, any Takeover
Proposal, or engage in any discussions or negotiations with respect thereto,
or
otherwise cooperate with or assist or participate in, or facilitate any
such
inquiries, proposals, offers, discussions or negotiations. Notwithstanding
anything contained in this Section 5.3 to the contrary, any Excluded
Party shall cease to be an Excluded Party for all purposes under this Agreement
immediately at such time as the Takeover Proposal made by such Person fails
to
satisfy the requirements of Sections 5.3(c)(i) or 5.3(c)(ii), but
in any event at the Excluded Party Period End-Time.
44
(iii) Except
as permitted with respect to an Excluded Party pursuant to Section 5.3(a)
or Section 5.3(b)(ii), upon the Solicitation Period End-Time, the Company
shall immediately cease and cause to be terminated any solicitation,
encouragement, discussion or negotiation with any Person conducted theretofore
by the Company, its Subsidiaries or any of their respective Representatives
with
respect to any actual or potential Takeover Proposal and request that all
confidential information provided by or on behalf of the Company or any
of its
Subsidiaries to such Person be returned or destroyed.
(c) Notwithstanding
anything to the contrary contained in Section 5.3(b), but subject to
Section 5.3(a) and the last sentence of this paragraph, if at any time
following the Solicitation Period End-Time and prior to obtaining the Requisite
Stockholder Vote, (i) the Company has received a written Takeover Proposal
from
a third party that the Company Board (acting through the Special Committee,
if
in existence) determines in good faith to be bona fide, (ii) the
Company Board (acting through the Special Committee, if in existence) determines
in good faith, after consultation with its financial advisors and outside
legal
counsel, that such Takeover Proposal constitutes or would reasonably be
expected
to result in a Superior Proposal and (iii) such Takeover Proposal is not
a
result of the Company’s or its Representative’s intentional breach of this
Section 5.3, then the Company may (A) furnish information with respect to
the Company and its Subsidiaries to the Person making such Takeover Proposal,
and (B) engage in discussions or negotiations with the Person making such
Takeover Proposal regarding such Takeover Proposal; provided that the
Company (x) will not, and will not allow its Subsidiaries or its or their
Representatives to, disclose any non-public information to such Person
without
first entering into an Acceptable Confidentiality Agreement with such Person,
and (y) will promptly provide to Parent any non-public information concerning
the Company or its Subsidiaries provided to such other Person which was
not
previously provided to Parent. Notwithstanding anything to the
contrary contained in Section 5.3(b) or this Section 5.3(c), prior
to obtaining the Requisite Stockholder Vote, the Company shall be permitted
to
take the actions described in Section 5.3(a) and clauses (A) and (B)
above with respect to any Excluded Party so long as it remains an Excluded
Party, including with respect to any amended proposal submitted by such
Excluded
Party following the Solicitation Period End-Time that continues to satisfy
the
requirements of Sections 5.3(c)(i) and 5.3(c)(ii), and the
restrictions in this Section 5.3(c) shall not apply with respect
thereto.
(d) Within
48 hours after the Solicitation Period End-Time, the Company shall notify
Parent
of the identity of all Excluded Parties, if any, and provide Parent a copy
of
each Takeover Proposal received from any Excluded Party (or, where no such
copy
is available, a written description of such Takeover Proposal). From
and after the Solicitation Period End-Time, the Company shall promptly
(and in
any event within 48 hours) notify Parent in the event that the Company
or any of
its Subsidiaries or Representatives receives: (i) any Takeover Proposal
or
indication by any Person that it is considering making a Takeover Proposal
or
proposals or offers with respect to a Takeover Proposal, (ii) any request
for
non-public information relating to the Company or any of its Subsidiaries
other
than requests for information in the ordinary course of business and unrelated
to a Takeover Proposal, or (iii) any inquiry or request for discussions
or
negotiations regarding any Takeover Proposal. The Company shall promptly
(and in
any event within 48 hours) notify Parent of the identity of such Person
and
provide to Parent a copy of such Takeover Proposal, inquiry or request
(or,
where no such copy is available, a written description of such Takeover
Proposal, inquiry or request), including any material modification to any
Takeover Proposal. The Company shall keep Parent reasonably informed (orally
and
in writing) on a prompt basis (and in any event within 48 hours) of the
status
of any such Takeover Proposal, indication, inquiry or request (including
the
material terms and conditions thereof and of any modification thereto).
Without
limiting the foregoing, from and after the Solicitation Period End-Time,
the
Company shall promptly (and in any event within 48 hours) notify Parent
orally
and in writing if it determines to begin providing information or to engage
in
discussions or negotiations concerning a Takeover Proposal pursuant to
Section 5.3(c). The Company shall not, and shall cause its Subsidiaries
not to, enter into any confidentiality agreement with any Person subsequent
to
the date of this Agreement that would restrict the Company’s ability to provide
information to Parent as required by Section 5.3(a), Section
5.3(c) or this Section 5.3(d). Except to the extent
necessary to take any actions that the Company is otherwise permitted to
take
pursuant to this Section 5.3 (and in such case only in accordance with
the terms of this Section 5.3), the Company shall not, and shall cause
each of its Subsidiaries not to, terminate, waive, amend or modify any
provision
of, or grant permission or request under, any standstill or confidentiality
agreement to which it or any of its Subsidiaries is a party, and the Company
shall, and shall cause its Subsidiaries to, enforce the provisions of any
such
agreement.
(e) Notwithstanding
anything in Section 5.3(b)(i) to the contrary, if at any time prior to
obtaining the Requisite Stockholder Vote, (i) (x) the Company Board (acting
through the Special Committee, if in existence) determines in good faith,
after
consultation with outside legal counsel and its financial advisors, that
a bona
fide written Takeover Proposal received by the Company constitutes a Superior
Proposal, (y) the Company Board (acting through the Special Committee,
if in
existence) determines in good faith, after consultation with outside legal
counsel and its financial advisor, that failing to take such action would
be
inconsistent with the fiduciary duties of the Company Board under applicable
Law
and (z) such Takeover Proposal is not a result of the Company’s or its
Representative’s intentional breach of Section 5.3, or (ii) in the
absence of a Takeover Proposal, the Company Board (acting through the Special
Committee, if in existence) determines in good faith, after consultation
with
outside legal counsel and its financial advisor, that failing to take such
action would be inconsistent with the fiduciary duties of the Company Board
under applicable Law, the Company Board (acting through the Special Committee,
if in existence) may (I) withdraw, modify or qualify, or propose publicly
to
withdraw, modify or qualify, in a manner adverse to Parent or Merger Sub,
the
Company Board Recommendation, or recommend or endorse, or propose publicly
to
recommend or endorse, any Takeover Proposal (a “Recommendation Change”),
and/or (II) in the case of clause (i) above, cause the Company to terminate
this
Agreement in order to enter into a definitive agreement with respect to
such
Superior Proposal; provided, however, that the Company shall not
terminate this Agreement pursuant to the foregoing clause (II), and any
purported termination pursuant to the foregoing clause (II) shall be void
and of
no force or effect, unless in advance of or concurrently with such termination
the Company (1) pays the Company Termination Fee as required by Section
7.6(a)(ii) and (2) simultaneously with such termination enters into an
acquisition agreement, merger agreement or similar definitive agreement
(the
“Alternative Acquisition Agreement”) and terminates this Agreement in
compliance with Section 7.4(b); and provided, further that
the Company Board (acting through the Special Committee, if then in existence)
may not make a Recommendation Change or terminate this Agreement pursuant
to the
foregoing clause (II) unless (A) if the basis for such Recommendation Change
or
termination of this Agreement is a Superior Proposal from any Person other
than
an Excluded Party, the Company shall have complied with clauses (i) and
(ii)
below and (B) if the basis for such Recommendation Change or termination
of this
Agreement is a Superior Proposal from any Excluded Party, the Company shall
have
complied with clause (i) below:
(i) the
Company shall have provided prior written notice to Parent, at least three
days
in advance (the “Notice Period”), of its intention to take such action
with respect to such Superior Proposal, which notice shall specify the
material
terms and conditions of such Superior Proposal (including the identity
of the
Person making such Superior Proposal), and shall have contemporaneously
provided
a copy of the relevant proposed transaction agreements with the Person
making
such Superior Proposal and other material documents, including the Alternative
Acquisition Agreement. In the event of any material revisions to such Superior
Proposal (including any revision in price), the Company shall be required
to
deliver a new written notice to Parent and to again comply with the requirements
of this Section 5.3(e)(i) with respect to such new written notice (except
that the period of notice shall be 24 hours); and
(ii) prior
to effecting such Recommendation Change or terminating this Agreement to
enter
into the Alternative Acquisition Agreement, the Company shall, and shall
cause
its financial and legal advisors to, during the Notice Period, negotiate
with
Parent in good faith (to the extent Parent desires to negotiate) to make
such
adjustments in the terms and conditions of this Agreement so that such
Superior
Proposal ceases to constitute a Superior Proposal.
(f) Nothing
contained in this Section 5.3 shall prohibit the Company Board (acting
through the Special Committee, if in existence) from (1) complying with
its
disclosure obligations under U.S. federal or state Law with regard to a
Takeover
Proposal, including taking and disclosing to the shareholders of the Company
a
position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under
the
Exchange Act (or any similar communication to shareholders) or (2) making
any
“stop, look and listen” communication or similar communication of the type
contemplated by Rule 14d-9(f) under the Exchange Act.
(g) The
Company shall not take any action to exempt any Person (other than Parent,
Merger Sub and their respective Affiliates) from the restrictions on “business
combinations” contained in Section 203 of the DGCL (or any similar provisions of
any other Law) or otherwise cause such restrictions not to apply unless
such
actions are taken simultaneously with a termination of this
Agreement.
47
Section
5.4 Notices
of Certain Events.
(a) The
Company will notify Parent and Merger Sub promptly (and promptly provide
copies
if applicable) of (i) any written or, to the Knowledge of the Company,
oral
communication from (x) any Governmental Entity or (y) any counterparty
to any
Contract in each case alleging that the consent of such Person is or may
be
required in connection with the transactions contemplated by this Agreement
(and
the response thereto from the Company, its Subsidiaries or its Representatives),
(ii) any communication from any Governmental Entity in connection with
the
transactions contemplated by this Agreement (and the response thereto from
the
Company, its Subsidiaries or its Representatives), (iii) any Legal Actions
commenced against or otherwise affecting the Company or any of its Subsidiaries
that are related to the transactions contemplated by this Agreement (and
the
response thereto from the Company, its Subsidiaries or its Representatives),
and
(iv) any event, change, occurrence, circumstance or development between
the date
of this Agreement and the Effective Time of which causes, or would reasonably
be
expected to cause, any condition to the obligations of the Company to effect
the
Merger and the other transactions contemplated by this Agreement not to
be
satisfied. With respect to any of the foregoing, the Company will
consult with Parent and Merger Sub and their Representatives so as to permit
the
Company and Parent and their respective Representatives to cooperate to
take
appropriate measures to avoid or mitigate any adverse consequences that
may
result from any of the foregoing.
(b) Parent
and Merger Sub will notify the Company promptly of (i) any written or,
to the
Knowledge of Parent or Merger Sub, oral communication from (x) any Governmental
Entity or (y) any counterparty to any Contract (to the extent that Parent
or
Merger Sub is aware that such Person is a counterparty to a Contract),
alleging
that the consent of such Person (or another Person) is or may be required
in
connection with the transactions contemplated by this Agreement (and the
response thereto from Parent and Merger Sub or their Representatives),
(ii) any
communication from any Governmental Entity in connection with the transactions
contemplated by this Agreement (and the response thereto from Parent and
Merger
Sub or their Representatives), (iii) any Legal Actions commenced against
or
otherwise affecting Parent or any of its Affiliates that are related to
the
transactions contemplated by this Agreement (and the response thereto from
Parent and Merger Sub or their Representatives), (iv) any event, change,
occurrence, circumstance or development which causes, or would reasonably
expected to cause either the Debt Financing or the Equity Financing to
become
unavailable on the terms and conditions contemplated in the Financing
Commitments or to otherwise be delayed, and (v) any event, change, occurrence,
circumstance or development between the date of this Agreement and the
Effective
Time of which Parent or Merger Sub learns and which causes, or is reasonably
expected to cause, any condition to the obligations of Parent or Merger
Sub to
effect the Merger and the other transactions contemplated by this Agreement
not
to be satisfied. With respect to any of the foregoing, Parent and
Merger Sub will consult with the Company and its Representatives so as
to permit
the Company and Parent and Merger Sub and their respective Representatives
to
cooperate to take appropriate measures to avoid or mitigate any adverse
consequences that may result from any of the foregoing.
Section
5.5 Stockholders
Meeting; Proxy Material.
(a) The
Company shall take all action necessary to duly call, give notice of, convene
and hold the Company Stockholders Meeting for the purpose of obtaining
the
approval of this Agreement by the Company stockholders in accordance with
applicable Law and as provided in this Agreement (including postponing
or
adjourning the Company Stockholders Meeting if necessary to solicit additional
votes and requested to do so by Parent) as promptly as reasonably practicable
after the SEC confirms that it has no further comments on the Company Proxy
Statement. Except to the extent the Company Board (acting through the
Special Committee, if in existence) shall have withdrawn, modified or qualified
the Company Board Recommendation as specifically permitted by Section
5.3(e) hereof, the Company shall include in the Company Proxy Statement the
Company Board Recommendation and shall take all reasonable and lawful action
to
solicit the Requisite Company Vote. Unless this Agreement is validly
terminated in accordance with its terms pursuant to Article VII, the
Company shall promptly submit this Agreement to its stockholders at the
Company
Stockholders Meeting even if the Company Board shall have withdrawn, modified
or
qualified its recommendation thereof or otherwise effected a Recommendation
Change or proposed or announced any intention to do so.
(b) In
connection with the Company Stockholders Meeting, the Company will (i)
as
promptly as reasonably practicable after the date of this Agreement prepare
the
Company Proxy Statement and, as promptly as reasonably practicable after
the
Solicitation Period End-Time, file the Company Proxy Statement with the
SEC,
(ii) respond as promptly as reasonably practicable to any comments received
from
the SEC with respect to such filings and provide copies of such comments
to
Parent and Merger Sub promptly upon receipt and copies of proposed responses
to
Parent and Merger Sub a reasonable time prior to filing to allow meaningful
comment, (iii) as promptly as reasonably practicable prepare and file (after
Parent and Merger Sub have had a reasonable opportunity to review and comment
on) any amendments or supplements necessary to be filed in response to
any SEC
comments or as required by Law, (iv) mail to its stockholders as promptly
as
reasonably practicable the Company Proxy Statement and all other customary
proxy
or other materials for meetings such as the Company Stockholders Meeting,
(v) to
the extent required by applicable Law, as promptly as reasonably practicable
prepare, file and distribute to the Company stockholders any supplement
or
amendment to the Company Proxy Statement if any event shall occur which
requires
such action at any time prior to the Company Stockholders Meeting, and
(vi)
otherwise use commercially reasonable efforts to comply with all requirements
of
Law applicable to any Company Stockholders Meeting and the
Merger. Parent and Merger Sub shall cooperate with the Company in
connection with the preparation of the Company Proxy Statement and any
amendments or supplements thereto, including promptly furnishing the Company
upon request with any and all information as may be required to be set
forth in
the Company Proxy Statement or any amendments or supplements thereto under
applicable Law. The Company will provide Parent and Merger Sub a reasonable
opportunity to review and comment upon the Company Proxy Statement, or
any
amendments or supplements thereto, prior to mailing the Company Proxy Statement
to its stockholders.
(c) If,
at any time prior to the Effective Time, any information relating to the
Company, Parent or Merger Sub or any of their respective Affiliates should
be
discovered by the Company, Parent or Merger Sub which should be set forth
in an
amendment or supplement to the Company Proxy Statement so that the Company
Proxy
Statement shall not contain any untrue statement of a material fact or
omit to
state any material fact required to be stated therein or necessary in order
to
make the statements therein, in light of the circumstances under which
they are
made, not misleading, the party that discovers such information shall promptly
notify the other parties and, to the extent required by applicable Law,
the
Company shall disseminate an appropriate amendment thereof or supplement
thereto
describing such information to the Company’s stockholders.
(d) The
Company agrees that (i) none of the information included or incorporated
by
reference in the Company Proxy Statement or any other document filed with
the
SEC in connection with the Merger and the other transactions contemplated
by
this Agreement (all such other documents, the “Other Filings”) shall, in
the case of the Company Proxy Statement, at the date it is first mailed
to the
Company’s stockholders or at the time of the Company Stockholders Meeting or at
the time of any amendment or supplement thereof, or, in the case of any
Other
Filing, at the date it is first mailed to the Company’s stockholders or at the
date it is first filed with the SEC, contain any untrue statement of a
material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading, except that no covenant is made
by
the Company with respect to statements made or incorporated by reference
therein
based on information supplied by Parent or any of its Affiliates in connection
with the preparation of the Company Proxy Statement or the Other Filings
for
inclusion or incorporation by reference therein, and (ii) the Company Proxy
Statement and the Other Filings that are filed by the Company shall comply
as to
form in all material respects with the requirements of the Exchange
Act.
(e) Parent
and Merger Sub covenant that none of the information supplied by or on
behalf of
either Parent or Merger Sub for inclusion in the Company Proxy Statement
or the
Other Filings will, in the case of the Company Proxy Statement, at the
date it
is first mailed to the Company’s stockholders or at the time of the Company
Stockholders Meeting or at the time of any amendment or supplement thereof,
or,
in the case of any Other Filing, at the date it is first mailed to the
Company’s
stockholders or at the date it is first filed with the SEC, 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.
Section
5.6 Employees;
Benefit Plans.
(a) The
Surviving Corporation and its Affiliates will honor all Company Benefit
Plans
(including any severance, retention, change of control and similar plans,
agreements, offer letters, offer summaries and other written arrangements,
but
excluding any commitment, understanding or promise to grant equity compensation)
in accordance with their terms as in effect immediately prior to the Effective
Time, subject to any amendment or termination thereof that may be permitted
by
such Company Benefit Plans. Without limiting the generality of this
Section 5.6(a), Section 5.6(b) and Section 5.6(c), during
the Continuation Period, the Surviving Corporation shall maintain the severance
plans of the Company and its Subsidiaries pursuant to their material terms
as in
effect at the Effective Time and shall provide any Employee whose employment
is
terminated by the Surviving Corporation or any of its Subsidiaries during
the
Continuation Period without cause (as determined by the Surviving Corporation)
with severance and other separation benefits that are no less favorable
in the
aggregate than what would be payable to such Employee pursuant to the severance
plan or policy that was applicable to such Employee as of the Effective
Time;
provided that, in the case of any material severance plan or policy of
the Company or any Subsidiary, this covenant shall apply only with respect
to
such severance plan or policy to the extent the substantive terms and conditions
of such plan or policy were disclosed to Parent prior to the date
hereof. For purposes of determining the severance and other
separation benefits to which an Employee shall become entitled pursuant
to the
preceding sentence, such Employee’s service with the Surviving Corporation, its
Subsidiaries and all Pre-Closing Service shall be recognized.
(b) For
all purposes under the employee benefit plans of the Surviving Corporation
and
its Affiliates providing benefits to any Employees after the Effective
Time (the
“New Plans”), the Surviving Corporation shall cause each Employee to
receive credit for all service with the Company and its Affiliates before
the
Effective Time (including predecessor or acquired entities or any other
entities
with respect to which the Company and its Affiliates have given credit
for prior
service) to the extent recognized in any similar Company Benefit Plans
in which
such Employee participated immediately prior to the Closing (such service,
“Pre-Closing Service”) for all purposes, including determining
eligibility to participate, level of benefits, vesting and benefit accruals,
except (i) for purposes of benefit accrual under any defined benefit plan
(other
than a defined benefit plan that assumes the liabilities of a Company Benefit
Plan), and (ii) to the extent such credit would result in a duplication
of
accrual of benefits for the same period of service. In addition, and
without limiting the generality of the foregoing, (A) each Employee immediately
will be eligible to participate, without any waiting time, in any New Plan
to
the extent coverage under such New Plan replaces coverage under a similar
or
comparable Company Benefit Plan in which such Employee participated immediately
before the Effective Time (such plans, collectively, the
“Old Plans”), and (B) for purposes of each New Plan
providing medical, dental, pharmaceutical, vision and/or disability benefits
to
any Employee, the Surviving Corporation will cause all pre-existing condition
exclusions and actively-at-work requirements of such New Plan to be waived
for
such Employee and his or her covered dependents, to the extent any such
exclusions or requirements were waived or were inapplicable under any similar
or
comparable Company Benefit Plan, and the Surviving Corporation will cause
any
eligible expenses incurred by such Employee and his or her covered dependents
during the portion of the plan year of the Old Plan ending on the date
such
Employee’s participation in the corresponding New Plan begins to be taken into
account under such New Plan for purposes of satisfying all deductible,
coinsurance and maximum out-of-pocket requirements applicable to such Employee
and his or her covered dependents for the applicable plan year as if such
amounts had been paid in accordance with such New Plan.
(c) During
the Continuation Period, the Surviving Corporation will provide current
employees of the Company and its Subsidiaries as of the Effective Time
who
continue employment with the Surviving Corporation (“Employees”) with
benefits under employee benefit plans (within the meaning of Section 3(3)
of
ERISA) and other perquisites and fringe benefits (collectively, “Employee
Benefits”) that are no less favorable in the aggregate than the Employee
Benefits provided by the Company and its Subsidiaries as in effect at the
Effective Time; provided, however, that, subject to the
requirements of the portion of this sentence that precedes this proviso,
nothing
herein shall (i) require that the Surviving Corporation maintain or continue
any
particular Company Benefit Plan or (ii) interfere with the Surviving
Corporation’s right or obligation to make changes to any Company Benefit Plan or
New Plan. Notwithstanding anything to the contrary set forth herein,
subject to Section 5.6(a), nothing herein shall preclude the Surviving
Corporation from terminating the employment of any Employee.
(d) The
provisions of this Section 5.6 are solely for the benefit of the parties
to this Agreement, and no current or former employee, director, independent
contractor or consultant of the Company or its Subsidiaries or any other
Person
associated therewith shall be regarded as a third party beneficiary of
this
Section 5.6. No provision of this Agreement shall be construed
as amending any Company Benefit Plan and any provisions hereof regarding
Company
Benefit Plans shall not become effective unless and until the Company Board
or any other entity overseeing such Company Benefit Plans takes such action
as they deem necessary and appropriate to implement such provisions.
Neither the Company Board’s nor any other entities’ approval of this Agreement,
nor the execution of this Agreement by an officer or director of the
Company, shall constitute the required action.
Section
5.7 Directors’
and Officers’ Indemnification and Insurance.
(a) In
the event of any threatened or actual claim, action, suit, proceeding or
investigation, whether civil, criminal or administrative, including any
such
claim, action, suit, proceeding or investigation in which any present or
former
director or officer of the Company or any of its Subsidiaries (together,
the
“Indemnified Parties”) is, or is threatened to be, made a party based in
whole or in part on, or arising in whole or in part out of, or pertaining
in
whole or in part to, any action or failure to take action by any such Person
in
such capacity taken prior to the Effective Time (including with respect
to any
action or failure to take action occurring in connection with the approval
of
this Agreement and the consummation of the Merger or any of the other
transactions contemplated hereby), Parent and the Surviving Corporation
(each,
an “Indemnifying Party”) will, jointly and severally, from and after the
Effective Time, indemnify, defend and hold harmless, as and to the fullest
extent permitted or required by applicable Law and required by the Company
Organizational Documents (or any similar organizational document of the
Company
or any of its Subsidiaries), when applicable, and any indemnity agreements
applicable to any such Indemnified Party or any Contract between an Indemnified
Party and the Company or one of its Subsidiaries, in each case, in effect
on the
date of this Agreement, against any losses, claims, damages, liabilities,
costs,
legal and other expenses (including reimbursement for legal and other fees
and
expenses incurred in advance of the final disposition of any claim, action,
suit, proceeding or investigation to each Indemnified Party), judgments,
fines
and amounts paid in settlement incurred by such Indemnified Party in connection
with such claim, action, suit, proceeding or investigation. Parent
shall, or shall cause the Surviving Corporation to, promptly advance all
out-of-pocket expenses of each Indemnified Party in connection with any
such
claim, action, suit, proceeding or investigation as such expenses (including
reasonable attorneys’ fees and disbursements) are incurred upon receipt from
such Indemnified Party of a request therefor; provided (if and to
the extent required by the DGCL or other applicable Law) that such Indemnified
Party undertakes to repay such amount if it is ultimately determined that
such
Indemnified Party is not entitled to be indemnified under the DGCL or other
applicable Law with respect to such claim, action, suit, proceeding or
investigation. In the event any claim, action, suit, proceeding or
investigation is brought against any Indemnified Party, Parent and the
Surviving
Corporation shall each use all commercially reasonable efforts to assist
in the
vigorous defense of such matter, provided that neither Parent nor the
Surviving Corporation shall settle, compromise or consent to the entry
of any
judgment in any claim, action, suit, proceeding or investigation (and in
which
indemnification could be sought by such Indemnified Party hereunder) without
the
prior written consent of such Indemnified Party if and to the extent the
claimant seeks any non-monetary relief from such Indemnified Party.
(b) For
a period of six (6) years after the Effective Time, the Surviving Corporation
shall maintain in effect, if available, the Company’s current directors’ and
officers’ liability insurance and fiduciary liability insurance
(the “D&O Insurance”) (provided that the Surviving
Corporation may substitute therefor policies with reputable and financially
sound carriers) in respect of acts or omissions occurring at or prior to
the
Effective Time, covering each Person currently covered by the D&O Insurance
(a complete and accurate copy of which has been heretofore made available
to Parent), on terms with respect to the coverage, deductible and amounts
no
less favorable than those of the D&O Insurance in effect on the date of this
Agreement; provided, however, that (x) in satisfying its
obligations under this Section 5.7(b) the Surviving Corporation shall not
be obligated to pay annual premiums in excess of 300% of the amount currently
paid by the Company (which premiums are set forth in Section 5.7(b) of
the Company Disclosure Letter), it being understood and agreed that the
Surviving Corporation shall nevertheless be obligated to provide the maximum
amount of such coverage as may be obtained for such annual 300% amount,
and (y)
in the event of the application of clause (x), any Indemnified Party, upon
reasonable written notice thereof (which notice shall be provided no later
than
thirty (30) days prior to the Effective Time and shall set forth in reasonable
detail for each Person to be covered the policy coverage, premiums, deductibles,
limitations and other pertinent information), who desires to obtain additional
coverage such that, when combined with the coverage obtained by the Surviving
Corporation in accordance with clause (x), it provides insurance coverage
equivalent to the D&O Insurance in effect on the date hereof, may so elect
and, if available the Surviving Corporation shall acquire such additional
coverage on behalf of such Person; provided that in the event any
Indemnified Party makes such an election, such Indemnified Party shall
pay the
portion of the premium of such D&O Insurance in excess of the amount which
the Surviving Corporation is obligated to pay pursuant to this Section
5.7. At the Company’s option, the Company may
purchase, prior to the Effective Time, a six (6)-year pre-paid “tail policy” on
terms and conditions (in both amount and scope) providing substantially
equivalent benefits as the current D&O Insurance maintained by the Company
and its Subsidiaries with respect to matters arising on or before the Effective
Time, covering without limitation the transactions contemplated hereby.
In
addition, if the Company has not purchased any such policy, the Surviving
Corporation may acquire a six (6)-year pre-paid tail policy for Persons
currently covered by D&O Insurance that is consistent with the first
sentence of this Section 5.7(b). In either case, any such policy, when
fully paid for, shall be in lieu of satisfying the Surviving Company’s
obligations pursuant to the first sentence of this Section 5.7(b). The
obligation to maintain insurance provided in this Section 5.7(b) shall
continue in full force and effect for a period of not less than six (6)
years
from and after the Effective Time; provided that in the event any claim
or claims are asserted or made within such six (6)-year period, the Surviving
Corporation shall ensure that such insurance remains in full force and
effect
with respect to such claims until final disposition thereof.
(c) Following
the Effective Time, the Surviving Corporation and each of its Subsidiaries
shall
include and maintain in effect in their respective articles of incorporation
or
bylaws (or similar organizational documents) for a period of six (6) years
after
the Effective Time, provisions regarding the elimination of liability of
directors (or their equivalent), indemnification of officers and directors
thereof and advancement of expenses which are, with respect to each such
entity,
no less advantageous to the Indemnified Parties than the corresponding
provisions contained in such organizational documents as of the date of
this
Agreement.
(d) If
the Surviving Corporation or any of its successors or assigns shall (i)
consolidate with or merge into any other Person and shall not be the continuing
or surviving corporation or entity of such consolidation or merger, or
(ii)
transfer all or substantially all of its properties and assets to any Person,
then, and in each such case, proper provisions shall be made so that the
successors and assigns of the Surviving Corporation (or acquirer of such
assets)
shall assume all of the obligations of the Surviving Corporation set forth
in
this Section 5.7.
(e) The
provisions of this Section 5.7 will survive the Closing and are intended
to be for the benefit of, and will be enforceable by, each Indemnified
Party and
its successors and representatives after the Effective Time and their rights
under this Section 5.7 are in addition to, and will not be deemed to be
exclusive of, any other rights to which an Indemnified Party is entitled,
whether pursuant to Law, Contract, the Company Organizational Documents
(or
similar organizational documents of the Surviving Corporation or any of
its
Subsidiaries) or otherwise.
Section
5.8 Commercially
Reasonable Efforts.
(a) Upon
the terms and subject to the conditions set forth in this Agreement and
in
accordance with applicable Laws, each of the parties to this Agreement
will use
its commercially reasonable efforts to take, or cause to be taken, all
actions
and to do, or cause to be done, all things necessary, proper or advisable
to
ensure that the conditions set forth in Article VI are satisfied and
to consummate the transactions contemplated by this Agreement as promptly
as
practicable, including (i) obtaining all necessary actions or non-actions,
waivers, consents and approvals from (A) any Governmental Entity and (B)
any
Clients and making all necessary registrations and filings and taking all
steps
as may be necessary to obtain an approval or waiver from, or to avoid an
action
or proceeding by, (I) any Governmental Entity and (II) any Client, (ii)
making,
as promptly as practicable (and in any event within ten (10) Business Days),
an
appropriate filing with the U.S. Federal Trade Commission
(the “FTC”) and the Antitrust Division of the U.S. Department of
Justice (the “Antitrust Division”) of a Notification and Report Form
pursuant to the HSR Act with respect to the transactions contemplated hereby,
which filings shall specifically request early termination of the waiting
period
prescribed by the HSR Act, and submitting as promptly as practicable any
supplemental information requested in connection therewith pursuant to
the HSR
Act, (iii) making, as promptly as practicable, appropriate filings under
any
Foreign Merger Control Law, if required, (iv) obtaining all consents, approvals
or waivers from, or taking other actions with respect to, third parties
necessary or advisable to be obtained or taken in connection with the
transactions contemplated by this Agreement, (v) subject to first having
used
its commercially reasonable efforts to negotiate a reasonable resolution
of any
objections underlying such lawsuits or other legal proceedings, defending
and
contesting 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 Governmental Entity vacated
or
reversed, and (vi) executing and delivering any additional instruments
necessary
to consummate the transactions contemplated hereby, and to fully carry
out the
purposes of this Agreement.
(b) Parent
and Merger Sub and the Company will cooperate and consult with each other
in
connection with the making of all such filings, notifications and any other
material actions pursuant to this Section 5.8, subject to applicable Law,
by permitting counsel for the other party to review in advance, and consider
in
good faith the views of the other party in connection with, any proposed
material written communication to any Governmental Entity and by providing
counsel for the other party with copies of all filings and submissions
made by
such party and all correspondence between such party (and its advisors)
with any
Governmental Entity and any other information supplied by such party and
such
party’s Affiliates to or received from any Governmental Entity in connection
with the transactions contemplated by this Agreement; provided,
however, that material may be redacted (x) as necessary to comply
with
contractual arrangements, (y) as necessary to address good faith legal
privilege
or confidentiality concerns and (z) as necessary to comply with applicable
Law. Neither Parent and Merger Sub nor the Company shall consent to
any voluntary extension of any statutory deadline or waiting period or
to any
voluntary delay of the consummation of the transactions contemplated by
this
Agreement at the behest of any Governmental Entity without the consent
of the
other party (which consent shall not be unreasonably withheld, delayed
or
conditioned).
(c) Each
of Parent and Merger Sub and the Company will promptly inform the other
party
upon receipt of any material communication from (i) the FTC, (ii) the Antitrust
Division, or (iii) any Governmental Entity regarding any of the transactions
contemplated by this Agreement. If Parent and Merger Sub or the
Company (or any of their respective Affiliates) receives a request for
additional information or documentary material from any such Person that
is
related to the transactions contemplated by this Agreement, then such party
will
endeavor in good faith to make, or cause to be made, as soon as reasonably
practicable and after consultation with the other party, an appropriate
response
in compliance with such request. The parties agree not to
participate, or to permit their Affiliates to participate, in any substantive
meeting or discussion with (A) the FTC, (B) the Antitrust Division, or
(C) any
Governmental Entity in connection with the transactions contemplated by
this
Agreement unless, except where prohibited by Law, it so consults with the
other
party in advance and, to the extent not prohibited by (I) the FTC, (II)
the
Antitrust Division, or (III) such Governmental Entity, gives the other
party the
opportunity to attend and participate. Each party will advise the
other party promptly of any understandings, undertakings or agreements
(oral or
written) which the first party proposes to make or enter into with (x)
the FTC,
(y) the Antitrust Division, or (z) any Governmental Entity in connection
with
the transactions contemplated by this Agreement. In furtherance and
not in limitation of the foregoing, each party will use its commercially
reasonable efforts (Y) to resolve any objections that may be asserted with
respect to the transactions contemplated by this Agreement under any antitrust,
competition, premerger notification, trade regulation or merger control
Law,
including (subject to first having used commercially reasonable efforts
to
negotiate a resolution to any such objections) contesting and resisting
any
action or proceeding, and (Z) to have vacated, lifted, reversed or overturned
any decree, judgment, injunction or other Order, whether temporary, preliminary
or permanent, that is in effect and that prohibits, prevents or restricts
consummation of the Merger or the other transactions contemplated by this
Agreement and to have such statute, rule, regulation, decree, judgment,
injunction or other Order repealed, rescinded or made inapplicable so as
to
permit consummation of the transactions contemplated by this
Agreement.
Section
5.9 Public
Announcements. Except with respect to any Recommendation Change
or any other action taken in connection with Section 5.3 hereof, Parent
and the Company will consult with each other before issuing any press release
or
otherwise making any public statements about this Agreement or any of the
transactions contemplated by this Agreement.
Section
5.10 Stock
Exchange Listing; Deregistration. Promptly following the
Effective Time, the Surviving Corporation will cause the Shares to be delisted
from the NYSE and deregistered under the Exchange Act.
Section
5.11 Fees and
Expenses. All expenses (including those payable to Representatives) incurred
by any party to this Agreement or on its behalf in connection with this
Agreement and the transactions contemplated by this Agreement will be paid
by
the party incurring those expenses, except as otherwise provided in Sections
5.7, 5.13 and 7.6; provided that Parent shall
pay any filing fee under the HSR Act.
Section
5.12 Takeover
Statutes. If any takeover statute is or becomes applicable to
this Agreement, the Equity Financing Commitments, the Merger or the other
transactions contemplated by this Agreement, each of Parent, Merger Sub
and the
Company and their respective boards of directors will (a) take all necessary
action to ensure that such transactions may be consummated as promptly
as
practicable upon the terms and subject to the conditions set forth in this
Agreement, and (b) otherwise act to eliminate or minimize the effects of
such
takeover statute.
56
Section
5.13 Financing.
(a) Prior
to the Effective Time, the Company shall, and shall cause its Subsidiaries
to,
use its commercially reasonable efforts to provide and cause their respective
Representatives (including legal and accounting advisors) to provide to
Parent
and Merger Sub, at Parent’s sole expense, all cooperation reasonably requested
by Parent in connection with the Financing (provided that such
cooperation does not unreasonably interfere with the ongoing operations
of the
Company and its Subsidiaries), including (i) participation in a reasonable
number of meetings, presentations, road shows, due diligence sessions and
sessions with rating agencies, (ii) assisting with the preparation of materials
for rating agency presentations, offering documents, private placement
memoranda, bank information memoranda, prospectuses, business projections,
pro
forma financial statements and similar documents necessary, proper or advisable
in connection with the Financing; provided that any such memoranda or
prospectuses shall contain disclosure and financial statements with respect
to
the Company or the Surviving Corporation reflecting the Surviving Corporation
and/or its Subsidiaries as the obligor, (iii) executing and delivering
any
pledge and security documents, credit agreements, notes, mortgages, other
definitive financing documents, or other certificates or documents as may
be
reasonably requested by Parent (including a certificate of the chief financial
officer of the Company or any Subsidiary with respect to solvency matters
as of
the Effective Time), (iv) reasonably facilitating the pledging of collateral
effective on or after the Effective Time (including cooperation in connection
with the pay-off of existing indebtedness (if requested by Parent) and
the
release of related Liens), (v) furnishing Parent and its Financing sources
with
such financial and other pertinent information regarding the Company and
its
Subsidiaries as may be reasonably requested by
Parent, including all financial statements, pro forma
financial information and other information of the type required by Regulation
S-X (other than Rule 3-10 of Regulation S-X) and Regulation S-K under the
Securities Act and of the type and form customarily included in private
placements under Rule 144A of the Securities Act to consummate the offerings
of
debt securities contemplated by the Debt Financing Commitments, assuming
that
such offerings(s) were consummated at the same time during the Company’s fiscal
years as the offerings(s) of debt securities contemplated by the Debt Financing
Commitments, or as otherwise required in connection with the Debt Financing
and
the transactions contemplated by this Agreement or as otherwise necessary
in
order to receive customary “comfort” (including “negative assurance” comfort)
from independent accountants in connection with the offering(s) of debt
securities contemplated by the Debt Financing Commitments (all such information
in this clause (v) (“Required Financial Information”), including
execution and delivery of customary representation letters in connection
with
bank information memoranda, offering documents, private placement memoranda
and
other similar documents, (vi) providing assistance to Parent and Merger
Sub in
connection with the satisfaction of the conditions set forth in the Debt
Financing Commitments, (vii) obtaining accountants’ comfort letters and
consents, legal opinions, surveys and title insurance as reasonably requested
by
Parent, (viii) providing monthly financial information within twenty-five
(25)
days of the end of each month prior to the Closing Date that is of the
same
nature and scope as the monthly financial information that the Company
prepared
on a monthly basis prior to the date of this Agreement, (ix) taking all
actions
reasonably necessary to (A) permit the prospective lenders involved in
the
Financing to evaluate the Company’s current assets, cash management and
accounting systems, policies and procedures relating thereto for the purpose
of
establishing collateral arrangements, and (B) if required in connection
with the
Debt Financing, establish bank and other accounts and blocked account agreements
and lock box arrangement in connection with the foregoing, (x) if required
in
connection with the Debt Financing, obtain waivers, consents, estoppels
and
approvals from other parties to material leases, encumbrances and contracts
to
which the Company or any Subsidiary is a party and to arrange discussions
among
Parent, Merger Sub and their financing sources with other parties to material
leases, encumbrances and contracts and (xi) taking all corporate actions,
subject to the occurrence of the Closing, reasonably necessary to permit
the
consummation of the Debt Financing and to permit the proceeds thereof,
together
with cash on hand from operations of the Company and its Subsidiaries,
to be
made available to the Surviving Corporation immediately following the Effective
Time; provided that neither of the Company nor any of its Subsidiaries
will be required to pay any commitment or other similar fee or incur any
other
liabilities that is not simultaneously reimbursed by Parent in connection
with
the Debt Financing prior to the Effective Time. The Company will periodically
update any such Required Financial Information to be included in an offering
document to be used in connection with such Debt Financing in order to
ensure
that such Required Financial Information does not contain any untrue statement
of material fact or omit to state any material fact necessary in order
to make
the statements contained therein not misleading. Parent shall
indemnify and hold harmless the Company, any of its Subsidiaries and their
respective Representatives for and against any and all liabilities, losses,
damages, claims, costs, expenses, interest, awards, judgments and penalties
suffered or incurred by them in connection with the arrangement of the
Financing
and any information utilized in connection therewith (other than historical
information provided by the Company or any of its Subsidiaries). The
Company shall have the right to consent to the use of its and its Subsidiaries’
logos in connection with the Debt Financing (such consent not to be unreasonably
withheld, delayed or conditioned).
(b) Parent
and Merger Sub shall use all commercially reasonable efforts to arrange
the Debt
Financing as promptly as practicable on the terms and conditions described
in
the Debt Financing Commitments (provided that Parent and Merger Sub may
replace
or amend the Debt Financing Commitments to add lenders, lead arrangers,
bookrunners, syndication agents or similar entities which had not executed
the
Debt Financing Commitments as of the date hereof or otherwise so long as
such
replacement or amendment would not adversely impact or delay in any material
respect the ability of Parent or Merger Sub to consummate the transactions
contemplated hereby), including using all commercially reasonable efforts
to (i)
negotiate definitive agreements with respect thereto on the terms and conditions
contained therein or on other terms no less favorable to Parent and/or
Merger
Sub, and (ii) satisfy on a timely basis all conditions applicable to Parent
and/or Merger Sub in such definitive agreements that are within their control.
For the avoidance of doubt, if (i) all or any portion of the Debt Financing
structured as privately offered notes has not been received by Parent or
Merger
Sub by the time that all of the conditions to Closing in Article VI
(other than those conditions that by their terms are to be satisfied at
the
Closing) shall have been satisfied or waived and (ii) the bridge facilities
contemplated by the Debt Financing Commitments (or alternative bridge financing)
are available on the terms and conditions set forth in the Debt Financing
Commitments (or in alternative financing therefor), then Parent or Merger
Sub
shall borrow under such bridge financing (or alternative financing), and
cause
the proceeds of such bridge financing (or alternative financing) to be
used to
replace such privately offered note financing, no later than the last day
of the
Marketing Period or the date on which the conditions in Article VI (other
than those conditions that by their terms are to be satisfied at the Closing)
shall have been satisfied or waived, whichever is later. In the event any
portion of the Debt Financing becomes unavailable on the terms and conditions
contemplated in the Debt Financing Commitments, Parent and Merger Sub shall
promptly notify the Company and shall use all commercially reasonable efforts
to
obtain, as promptly as practicable following the occurrence of such event
of
unavailability (but in any event no later than the Outside Date), alternative
financing from alternative sources in an amount that will enable Parent
and
Merger Sub to consummate the transactions contemplated by this Agreement
and
that are on terms no less favorable to Parent, Merger Sub and the Company
(as
determined in the reasonable judgment of Parent), it being understood that
such
alternative financing shall not (i) impose new, additional or modified
conditions to the receipt of the Financing as set forth in the Debt Financing
Commitments or (ii) be reasonably likely to cause any material delay in
the
satisfaction of the conditions set forth in Article VI. Parent
shall keep the Company reasonably apprised of material developments relating
to
the Financing.
(c) Parent
shall not agree to any amendments or modifications to, or grant any waivers
of,
any condition or other provision under the Financing Commitments without
the
consent of the Company if such amendments, modifications or waivers would
impose
new or additional conditions or otherwise amend, modify or waive any of
the
conditions to the receipt of the Financing in a manner that would be reasonably
likely to cause any material delay in the satisfaction of the conditions
set
forth in Article VI. Notwithstanding anything in this
Agreement to the contrary, one or more Financing Commitments may be superseded
at the option of Parent and Merger Sub after the date of this Agreement
but
prior to the Effective Time by new financing commitments (the “New Financing
Commitments”) which replace existing Financing Commitments; provided,
that (i) the terms of the New Financing Commitments shall not (A) impose
new,
additional or modified conditions to the receipt of the Financing as set
forth
in the Financing Commitments or (B) be reasonably likely to cause any material
delay in the satisfaction of the conditions set forth in Article VI and
(ii) Parent may not replace Equity Financing with Debt Financing. In
such event, the term “Financing Commitments” as used herein shall be
deemed to include the Financing Commitments that are not so superseded
at the
time in question and the New Financing Commitments to the extent then in
effect.
(d) In
no event shall Parent or any of its Affiliates (which for purposes of this
Section 5.13(d) shall be deemed to include each direct or indirect
investor or potential investor in Parent, or any of Parent’s or any such
investor’s financing sources or potential financing sources or other
Representatives) (i) award any agent, broker, investment banker, financial
advisor or other firm or Person any financial advisory role on an exclusive
basis, or (ii) engage any bank or investment bank or other provider of
financing
on an exclusive basis (or otherwise on terms that could reasonably be expected
to prevent such provider from providing or seeking to provide financing
to any
third party in connection with a transaction relating to the Company or
its
Subsidiaries), in the case of clauses (i) and (ii) in connection with the
Merger
or the other transactions contemplated hereby; provided, however,
that Parent may engage one provider of financing and one financial advisor,
in
each case, on an exclusive basis; and provided, further, that
following the Solicitation Period End-Time, Parent may engage one additional
provider of financing and one additional financial advisor, in each case,
on an
exclusive basis. Notwithstanding anything herein to the contrary,
each of the Guarantors shall be permitted to enter into exclusive equity
investor arrangements with and among each other in connection with the
Merger or
the other transactions contemplated hereby.
(e) Parent
and Merger Sub acknowledge and agree that the obtaining of the Financing,
or any
alternative financing, is not a condition to Closing.
Section
5.14 Investment
Advisory Arrangement Consents.
(a) Consents
by Clients Other Than Public Funds. If consent to the assignment
or deemed assignment of an Investment Advisory Arrangement with Clients
(other
than Public Funds) of the Company or any of its Subsidiaries as a result
of the
transactions contemplated by this Agreement is required by applicable Law
or by
such Client’s Investment Advisory Arrangement, as soon as reasonably practicable
following the date of this Agreement, the Company and each such Subsidiary
shall
send a notice (the “Notice”) informing such Clients of the transactions
contemplated by this Agreement and requesting written consent to the assignment
of such Client’s Investment Advisory Arrangement. The Company and
each such Subsidiary shall also send a written notice (the “Negative Consent
Notice”) to such Clients (which Negative Consent Notice may be included in
the Notice) requesting written consent as aforesaid and informing such
Client: (i) of the intention to complete the transactions
contemplated by this Agreement, which will result in a deemed assignment
of such
Investment Advisory Arrangement; (ii) of the intention of the Company or
such
Subsidiary to continue to provide the advisory services pursuant to the
existing
Investment Advisory Arrangement with such Client after the Closing if such
Client does not terminate such agreement prior to the Closing; and (iii)
that
the consent of such Client will be deemed to have been granted if such
Client
continues to accept such advisory services for a period of at least forty-five
(45) days after the sending of the Negative Consent Notice without
termination. Parent agrees that consent for any Investment Advisory
Arrangement with such a Client (other than a Public Fund) to the assignment
or
deemed assignment resulting from the transactions contemplated by this
Agreement
shall be deemed given for all purposes hereunder (the “Non-Public Fund Client
Consent”) (A) if no consent is required under applicable Law or the
applicable Investment Advisory Arrangement, (B) upon receipt of the written
consent requested in the Notice or (C) if such consent is required under
applicable Law or the applicable Investment Advisory Arrangement and the
written
consent requested in any Notice or Negative Consent Notice is not received
within forty-five (45) days of mailing such Notice or Negative Consent
Notice,
upon expiration of the forty-five (45) day period; provided that the
applicable Client shall not have affirmatively stated to the Company or
any
Subsidiary that it does not so consent and shall not have terminated or
given
notice of its intent to terminate its Investment Advisory Arrangement prior
to
the Closing.
(b) Consents
by Public Fund Clients. Without limiting the generality of
Section 5.8, the Company and each Investment Adviser Subsidiary that
provides investment advisory services to a Public Fund shall use its
commercially reasonable efforts to, in accordance with applicable Law,
(i) as
promptly as practicable after the date of this Agreement obtain the approval
of
each of the Public Fund Boards of a new Investment Advisory Arrangement,
to be
effective as of the Closing Date, containing terms, taken as a whole, that
are
no less favorable to the Company and each applicable Investment Advisory
Subsidiary than the applicable existing Investment Advisory Arrangement
and (ii)
request the Public Funds to obtain, as promptly as practicable after the
Solicitation Period End-Time, the necessary approval of the shareholders
of each
Public Fund (except if not required under the Investment Company Act with
respect to any Public Funds not sponsored by the Company or its Subsidiaries)
of
such new Investment Advisory Arrangement containing terms, taken as a whole,
that are no less favorable to the Company and each applicable Investment
Advisory Subsidiary than the applicable existing Investment Advisory
Arrangement. The parties agree that consent for any Investment
Advisory Arrangement with a Public Fund (“Public Fund Consent”) shall be
deemed given for all purposes under this Agreement if a new Investment
Advisory
Arrangement has been approved in accordance with the preceding sentence
and is
in full force and effect at the Closing; provided that the term “Public
Fund Consent” shall not include any interim Investment Advisory Arrangement
approved in accordance with Rule 15a-4 under the Investment Company
Act. In the event that a Public Fund Consent is not obtained prior to
the Closing, the Company (or the applicable Investment Adviser Subsidiary)
may,
in its sole discretion, request the board of directors or trustees of such
Public Fund to approve, in conformity with Rule 15a-4 under the Investment
Company Act, an interim Investment Advisory Arrangement, to be effective
immediately following the Closing, for each such Public Fund with the Investment
Adviser Subsidiary containing the same terms and conditions as the existing
applicable Investment Advisory Arrangement (except as permitted under Rule
15a-4
under the Investment Company Act) with each such Public Fund. In the
event that the provisions of Rule 15a-4 under the Investment Company Act
are
utilized, the Company and the Parent and shall use commercially reasonable
efforts to obtain the required shareholder consents as promptly as practicable
following the Closing Date (and in any event prior to the expiration of
such
interim contracts).
(c) In
connection with obtaining the Client consents and other actions required
by
subsections (a) and (b) of this Section 5.14, at all times prior to the
Effective Time, the Company shall take reasonable steps to keep Parent
promptly
informed of the status of obtaining such Client consents and, upon Parent’s
request, make available to Parent copies of all such executed Client consents
and make available for Parent’s inspection the originals of such consents and
any related materials and other records relating to the Client consent
process.
(d) In
connection with obtaining the Client consents required under subsection
(a) of
this Section 5.14, Parent shall have the right to review in advance of
distribution any notices or other materials to be distributed by the Company
or
any of its Subsidiaries to Clients and shall have the right to have its
reasonable comments reflected therein prior to distribution.
Section
5.15 Public
Fund Proxy Statements; Registration Statements.
(a) As
promptly as practicable following approval of the Public Fund Boards described
in Section 5.14, the Company will (in coordination with the applicable
Public
Fund and under the general direction of the applicable Public Fund Board)
prepare and file proxy materials for the Public Fund shareholder meeting
to
approve the new Investment Advisory Arrangement. In connection with
such proxy materials, Parent shall have the right to review in advance
of
submission to the SEC the proxy materials (and any amendment or supplement
thereto) to be furnished to the shareholders of any Public Fund and to
(i)
approve information or data that is provided by or on behalf of Parent
or its
Affiliates specifically for inclusion in such proxy materials (such approval
not
to be unreasonably withheld, delayed or conditioned) and (ii) provide reasonable
comments on such material which the Company (in coordination with the applicable
Public Fund and under the general direction of the applicable Public Fund
Board)
will use commercially reasonable efforts to include.
(b) As
soon as possible following the date hereof, the Company shall, and shall
use its
commercially reasonable efforts to cause each Public Fund then engaged
in a
public offering of its shares to (i) file supplements to its prospectus
forming
a part of its registration statement then currently in use, which supplements
or
amendments shall reflect changes as necessary in such Public Fund’s affairs as a
consequence of the Merger, and (ii) make any other filing necessary under
any
applicable Law to satisfy disclosure requirements to enable the public
distribution of the shares of that Public Fund to continue. Parent
shall have the right to provide reasonable comments on such materials to
the
same extent as provided in Section 5.15(a).
Section
5.16 Section
15(f) of the Investment Company Act.
(a) Parent
acknowledges that the Company has entered into this Agreement in reliance
upon
the benefits and protections provided by Section 15(f) of the Investment
Company
Act. In furtherance (and not limitation) of the foregoing, Parent shall,
and
shall cause each of its Affiliates to, conduct its business and use commercially
reasonable efforts to enable the following to be true regarding Section
15(f) of
the Investment Company Act in relation to any Public Fund for which any
Subsidiary of the Company provides investment advisory or sub-advisory
services:
(a) for a period of not less than three (3) years after the Effective Time
(and
provided the 75% standard for disinterested directors is in effect at the
Closing), no more than 25% of the members of the board of directors or
trustees
of any Public Fund shall be “interested persons” (as defined in the Investment
Company Act) of the Company, any Subsidiary, the Parent or any of its
Affiliates, and (b) for a period of not less than two (2) years after the
Effective Time, neither Parent nor any of its Affiliates shall impose an
“unfair
burden” (within the meaning of the Investment Company Act, including any
interpretations or no-action letters of the SEC) on any such Public Fund
as a
result of the transactions contemplated by this Agreement.
(b) For
a period of three (3) years from the Closing, Parent shall not engage,
and shall
cause its Affiliates not to engage, in any transaction that would constitute
an
“assignment” (as defined in the Investment Company Act) to a third party of any
Investment Advisory Arrangement between Parent or any of its Affiliates
and any
registered investment company managed or advised by any of the Company
or its
Subsidiaries as of the date of this Agreement, without first obtaining
a
covenant in all material respects the same as that contained in this Section.
Notwithstanding anything to the contrary contained herein, the covenants
of the
parties hereto contained in this Section are intended only for the benefit
of
such parties and for no other Person.
Section
5.17 Rule
16b-3. Prior to the Effective Time, the Company shall take such
steps as may be reasonably necessary to cause dispositions of Company equity
securities (including derivative securities) pursuant to the transactions
contemplated by this Agreement by each individual who is a director or
executive
officer of the Company to be exempt under Rule 16b-3 promulgated under
the
Exchange Act.
Section
5.18 Resignations. The
Company shall use its commercially reasonable efforts to obtain and deliver
to
Parent at the Closing evidence reasonably satisfactory to Parent of the
resignation effective, as of the Effective Time, of those directors of
the
Company or any Subsidiary of the Company designated by Parent to the Company
in
writing prior to the Closing.
Section
5.19 Other
Actions. Each party agrees that, from the date of this Agreement
to the Effective Time, it shall use commercially reasonable efforts not
to take
any action or fail to take any action that is intended to, or would reasonably
be expected to, result in any of the conditions to the Merger set forth
in
Article VI of this Agreement not being satisfied.
Section
5.20 Arrangements
with Company Employees and Directors. In the event Parent, Merger
Sub or any Guarantor or any of their respective Affiliates, on the one
hand,
enters into any Contracts or other understandings or arrangements with
any
Company employee or director, on the other hand, Parent will promptly notify
the
Company of the existence of any such Contract, understanding or arrangement
and
the material terms thereof; provided that none of Parent, Merger Sub or
any Guarantor or any of their respective Affiliates shall enter into any
such
Contract, understanding or arrangement, or discuss or otherwise convey
any
proposal related thereto, to any Company employee or director prior to
the
Solicitation Period End-Time (as defined herein).
Section
5.21 Control
of Operations. Without in any way limiting any party’s rights or
obligations under this Agreement, the parties understand and agree that
(i)
nothing contained in this Agreement shall give Parent, directly or indirectly,
the right to control or direct the Company’s operations prior to the Effective
Time, and (ii) prior to the Effective Time, the Company shall exercise,
consistent with the terms and conditions of this Agreement, complete control
and
supervision over its operations.
CONDITIONS
TO THE MERGER
Section
6.1 Conditions
to the Obligations of Each Party. The respective obligation of
each party to this Agreement to effect the Merger is subject to the satisfaction
or waiver on or prior to the Closing Date of each of the following
conditions:
(a) Stockholder
Approval. The Requisite Stockholder Vote shall have been
obtained.
(b) Regulatory
Approvals. (a) The waiting period applicable to the consummation
of the Merger under the HSR Act (or any extension thereof) shall have expired
or
early termination thereof shall have been granted and (b) if any Foreign
Merger
Control Law is applicable to the transactions contemplated hereby, then
the
applicable Governmental Entity shall have given all necessary approvals
or
consents, except for those approvals or consents the failure of which to
obtain
would not be material to the Company and its Subsidiaries, taken as a
whole.
(c) No
Injunctions or Restraints. No Governmental Entity shall have
enacted, issued, promulgated, enforced or entered any Laws or Orders (whether
temporary, preliminary or permanent) which is then in effect that enjoin
or
otherwise prohibit consummation of the Merger. No Governmental Entity shall
have
commenced and not withdrawn any proceeding seeking to enjoin or otherwise
prohibit consummation of the Merger.
Section
6.2 Conditions
to Obligations of Parent and Merger Sub. The obligations of
Parent and Merger Sub to effect the Merger are also subject to the satisfaction
or waiver by Parent on or prior to the Closing Date of the following
conditions:
(a) Representations
and Warranties. (i) the representation and warranty of the Company set forth
in Section 3.10(b) shall be true and correct as of the date of this
Agreement and as of the Closing Date as if made at and as of such time,
(ii) the
representations and warranties of the Company set forth in Sections 3.1,
3.2, 3.3, 3.18, 3.20 and 3.22 shall be true
and correct in all material respects (without giving effect to any qualification
as to “materiality,” “Company Material Adverse Effect” or words of similar
meaning set forth therein) as of the date of this Agreement and as of the
Closing Date as if made at and as of such time, and (iii) all other
representations and warranties of the Company set forth in Article III
shall be true and correct as of the date of this Agreement and as of the
Closing
Date, as if made at and as of such time, except where the failure of such
representations and warranties to be so true and correct (without giving
effect
to any qualification as to “materiality,” “Company Material Adverse Effect” or
words of similar meaning set forth therein), individually or in the aggregate,
would not reasonably be expected to have a Company Material Adverse Effect;
provided, however, that representations and warranties that are
made as of a particular date or with respect to a particular period shall
be
true and correct (in the manner set forth in clauses (i), (ii) or (iii),
as
applicable) only as of such date or for such period. Parent shall have
received
at the Closing a certificate signed on behalf of the Company by a senior
executive officer of the Company to the effect that such officer has read
this
Section 6.2(a) and the conditions set forth in this
Section 6.2(a) have been satisfied.
(b) Performance
of Covenants. The Company shall have performed in all material respects all
obligations, and complied in all material respects with the agreements
and
covenants, required to be performed by or complied with by it hereunder
on or
prior to the Effective Time, and Parent shall have received a certificate
signed
on behalf of the Company by a senior executive officer of the Company to
such
effect.
(c) Revenue
Run-Rate. The Revenue Run-Rate Requirement shall be
satisfied.
Section
6.3 Conditions
to Obligation of the Company. The obligation of the Company to
effect the Merger is also subject to the satisfaction or waiver by the
Company
on or prior to the Closing Date of the following conditions:
(a) Representations
and Warranties. The representations and warranties of Parent and
Merger Sub set forth herein shall be true and correct 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 date), except to the extent the
facts or
matters causing the failure of such representations and warranties to be
so true
and correct (without giving effect to any limitation as to “materiality” or
“Merger Sub Material Adverse Effect” set forth therein), individually or in the
aggregate, would not reasonably be expected to have a Merger Sub Material
Adverse Effect. The Company shall have received at the Closing a certificate
signed on behalf of Parent by a senior executive officer of Parent to the
effect
that such officer has read this Section 6.3(a) and the conditions set
forth in this Section 6.3(a) have been satisfied.
(b) Performance
of Covenants. Parent and Merger Sub shall have performed in all
material respects all obligations, and complied in all material respects
with
the agreements and covenants, required to be performed by or complied with
by
them hereunder, and the Company shall have received a certificate signed
on
behalf of Parent by a senior executive officer of Parent to such
effect.
Section
6.4 Frustration
of Closing Conditions. None of the Company, Parent or Merger Sub
may rely on the failure of any condition set forth in this Article to be
satisfied if such failure was caused by such party’s breach of any
representation, warranty, covenant or agreement set forth in this
Agreement.
TERMINATION,
AMENDMENT AND WAIVER
Section
7.1 Termination
by Mutual Consent. This Agreement may be terminated at any time
prior to the Effective Time, by mutual written consent of Parent and the
Company.
Section
7.2 Termination
by Either Parent or the Company. This Agreement may be terminated
by either Parent or the Company (acting through the Special Committee,
if then
in existence) at any time prior to the Effective Time:
(a) Whether
prior to or after the satisfaction of the condition set forth in
Section 6.1(a), if the Merger has not occurred on or before March
19, 2008 (the “Outside Date”);
(b) If
this Agreement has been submitted to the stockholders of the Company for
adoption at a duly convened Company Stockholders Meeting and the Requisite
Stockholder Vote shall not have been obtained at such meeting (including
any
adjournment or postponement thereof); or
(c) if
any Law or Governmental Entity prohibits consummation of the Merger or
if any
Order restrains, enjoins or otherwise prohibits consummation of the Merger,
and
such Order has become final and nonappealable.
provided
that in each case the right to terminate this Agreement under this Section
7.2 will not be available to any party to this Agreement whose material
breach of any of its obligations under this Agreement has been a principal
cause
of, or resulted in, the failure of a condition to the Merger.
Section
7.3 Termination
by Parent. This Agreement may be terminated by Parent at any time
prior to the Effective Time:
(a) if,
(i) the Company Board (or the Special Committee) shall have made a
Recommendation Change, (ii) the Company Board (or the Special Committee)
approves, endorses or recommends any Takeover Proposal other than the Merger,
(iii) the Company shall have failed to include the Company Board Recommendation
in the Proxy Statement to the extent required pursuant to Section 5.5 or
(iv) the Company or the Company Board (or the Special Committee) publicly
announces its intention to do any of the foregoing, in any case, whether
or not
permitted by Section 5.3; or
(b) if
a breach of any representation, warranty, covenant or agreement on the
part of
the Company set forth in this Agreement shall have occurred which would
cause
the conditions set forth in Section 6.2(a) or Section 6.2(b) not
to be satisfied, and such breach is incapable of being cured by the Outside
Date; provided, however, that neither Parent nor Merger Sub is
then in material breach of this Agreement such that the conditions set
forth in
Section 6.3(a) or Section 6.3(b) would not be
satisfied.
Section
7.4 Termination
by the Company. This Agreement may be terminated by the Company
(acting through the Special Committee, if then in existence):
(a) if,
at any time prior to the Effective Time, a breach of any representation,
warranty, covenant or agreement on the part of Parent or Merger Sub set
forth in
this Agreement shall have occurred which would prevent Parent or Merger
Sub from
consummating the transactions contemplated by this Agreement, and such
breach is
incapable of being cured by the Outside Date; provided, however,
that the Company is not then in material breach of this Agreement such
that the
conditions set forth in Section 6.2(a) or Section 6.2(b) would not
be satisfied;
(b) prior
to obtaining the Requisite Stockholder Vote, pursuant to and in accordance
with
Section 5.3(e); provided, however, that the Company shall
not terminate this Agreement pursuant to this paragraph, and any purported
termination pursuant to this Section 7.4(b) shall be void and of no force
or effect, unless in advance of or concurrently with such termination the
Company pays the Company Termination Fee in the manner provided for in
Section 7.6(a); or
(c) if
(i) all of the conditions set forth in Section 6.1 and 6.2 have
been satisfied (other than those conditions that by their terms are to
be
satisfied at the Closing) or waived and (ii) on or prior to the last day
of the
Marketing Period, neither Parent, Merger Sub nor the Surviving Corporation
shall
have received the proceeds of the Debt Financing in an amount sufficient
to
consummate the transactions contemplated by this Agreement.
Section
7.5 Effect
of Termination. If this Agreement is terminated pursuant to this
Article VII, it will become void and of no further force and effect,
with no liability on the part of any party to this Agreement (or any of
their
respective former, current, or future general or limited partners, stockholders,
managers, members, directors, officers, Affiliates or agents), except that
the
provisions of Section 5.2(c), Section 5.11, the indemnity and
reimbursement provisions of Sections 5.13(a), this Section 7.5,
Section 7.6 and Article VIII will survive any termination of this
Agreement; provided, however, that except as otherwise provided in
Section 7.6 and Section 8.11, nothing
herein shall relieve any Party from liabilities for damages incurred or
suffered
by any other Party as a result of any willful or intentional material breach
of
any of its representations, warranties, covenants or other agreements set
forth
in this Agreement that would reasonably be expected to cause any of the
conditions set forth in Article VI not to be satisfied.
Section
7.6 Payment
of Fees Following Termination.
(a) The
Company will pay, or cause to be paid, to an account or accounts designated
by
the Guarantors, by wire transfer of immediately available funds an amount
equal
to the Company Termination Fee:
(i)
if this Agreement is terminated by Parent pursuant to Section 7.3(a), in
which event payment will be made within two (2) Business Days after such
termination;
(ii) if
this Agreement is terminated by the Company pursuant to Section 7.4(b),
in which event payment must be made in advance of or concurrent with such
termination; or
(iii) if
(A) a Takeover Proposal (or the intention of any Person to make one), whether
or
not conditional, shall have been made known publicly and not withdrawn
prior to
the termination of this Agreement, (B) this Agreement is terminated by
Parent or
the Company pursuant to Section 7.2(a) or Section
7.2(b) or by Parent pursuant to Section 7.3(b) and (C) within nine
(9) months following the date of such termination, the Company or any of
its
Subsidiaries enters into a definitive agreement providing for the implementation
of any Takeover Proposal or the Company thereafter consummates any Takeover
Proposal (whether or not such Takeover Proposal was the same Takeover Proposal
referred to in the foregoing clause (A)), in which event payment will be
made on or prior to the date on which the Company enters into such definitive
agreement, less the amount of any Parent Expenses previously paid to Parent
pursuant to Section 7.6(b) by the Company. For purposes of
this Section 7.6 only, references in the definition of the term “Takeover
Proposal” to the figure “15%” will be deemed to be replaced by “more
than 50%.”
(b) If
this Agreement is terminated by Parent, on the one hand, or the Company,
on the
other hand, pursuant to Section 7.2(b) under circumstances in which the
Company Termination Fee is not then payable pursuant to this Section 7.6,
then the Company shall pay promptly (but in any event within two (2) Business
Days) following receipt of an invoice therefor all of Parent’s actual and
reasonably documented out-of-pocket fees and expenses (including reasonable
legal fees and expenses) actually incurred by Parent and its Affiliates
on or
prior to the termination of this Agreement in connection with the transactions
contemplated by this Agreement, including the Financing (“Parent
Expenses”) as directed by the Guarantors in writing, which amount shall not
be greater than $20,000,000; provided that the existence of circumstances
that could require the Company Termination Fee to become subsequently payable
by
the Company pursuant to Section 7.6(a)(iii) shall not relieve the Company
of its obligations to pay the Parent Expenses pursuant to this Section
7.6(b); and provided, further that the payment by the Company
of Parent Expenses pursuant to this Section 7.6(b) shall not relieve the
Company of any subsequent obligation to pay the Company Termination Fee
pursuant
to Section 7.6(a) except to the extent indicated in Section
7.6(a)(iii).
(c) In
the event that this Agreement is terminated by the Company pursuant to
Section 7.4(c), then Parent shall pay, or cause to be paid, to an account
designated by the Company, by wire transfer of immediately available funds,
an
amount equal to the Parent Termination Fee, as promptly as reasonably
practicable (and, in any event, within two (2) Business Days) following
such
termination.
(d) In
no event shall the Company or Parent be required to pay the Company Termination
Fee or the Parent Termination Fee, respectively, on more than one
occasion.
(e) (i)
Notwithstanding anything to the contrary in this Agreement but subject
to clause
(ii) below, if in circumstances in which the Parent Termination Fee becomes
payable, neither the Guarantors, Parent nor Merger Sub are in breach of
this
Agreement such that (but for Parent’s failure to satisfy its obligations under
Section 2.1(d)) the conditions in Section 6.3(a) and Section
6.3(b) would otherwise be satisfied (other than receipt of the certificates
referred to therein) (a “Non-Breach Financing Failure”), the sole and
exclusive remedy of the Company against the Guarantors, Parent, Merger
Sub and
any of their former, current or future general or limited partners, members
of
stockholders or against any of their former, current or future directors,
officers, employees, Affiliates, general or limited partners, stockholders,
managers, members or agents (each, a “Specified Person”) for any loss or
damage suffered as a result of the failure of the transactions contemplated
hereby to be consummated shall be the right to terminate this Agreement
pursuant
to Section 7.4(c) and to receive payment of the Parent Termination Fee in
accordance with this Section 7.6(e) and the terms of the Guarantees, and
upon payment of the Parent Termination Fee in accordance with this
Section 7.6(e), none of the Specified Persons shall have any further
liability or obligation to the Company or any other Person relating to
or
arising out of this Agreement or the transactions contemplated hereby,
other
than for fraud and (ii) notwithstanding clause (i) of this
Section 7.6(e) or anything else in this Agreement to the contrary
and whether or not this Agreement shall have been terminated, in no event
shall
the Company or its Subsidiaries, as a group, on the one hand, or the Guarantors,
Parent, Merger Sub and the Specified Persons as a group, on the other hand,
be
liable for any losses or damages relating to or arising out of this Agreement,
the Equity Financing Commitments or the transactions contemplated hereby
and
thereby (including breaches by Parent or Merger Sub of any representations,
warranties, covenants and agreements contained herein or therein) in excess
of
$400,000,000 in the aggregate for each such group (inclusive of any obligation
to pay the Company Termination Fee or the Parent Termination Fee, as
applicable), other than for fraud. For the avoidance of doubt,
notwithstanding anything herein to the contrary, (1) in no event shall
the
Company, on the one hand, or the Guarantors, Parent, Merger Sub and the
Specified Persons, on the other hand, seek to recover any money damages
in
excess of $400,000,000 in the aggregate from the other, except for fraud,
(2)
the maximum liability of each Guarantor, directly or indirectly, shall
be
limited to the express obligations of such Guarantor under its Guarantee
and (3)
in no event shall any “Guarantor Affiliate” (as defined in the Guarantees) have
any liability or obligation relating to or arising out of this Agreement
or the
transactions contemplated hereby.
(f) Each
of the Company, Parent and Merger Sub acknowledges that the agreements
contained
in this Section 7.6 are an integral part of the transactions contemplated
by this Agreement, that without these agreements the Company, Parent and
Merger
Sub would not have entered into this Agreement, and that that the damages
resulting from termination of this Agreement under circumstances where
a Company
Termination Fee or a Parent Termination Fee, as the case may be, is payable
are
uncertain and incapable of accurate calculation and that the amounts payable
pursuant to this Section 7.6 are reasonable forecasts of the actual
damages which may be incurred and constitute liquidated damages and not
a
penalty.
(g) If
the Company fails to pay as directed in writing by Parent any amounts due
to
accounts designated by Parent pursuant to this Section 7.6 within the
time periods specified in this Section 7.6, the Company shall pay the
costs and expenses (including reasonable legal fees and expenses) incurred
by
Parent and/or Merger Sub in connection with any action, including the filing
of
any lawsuit, taken to collect payment of such amounts, together with interest
on
such unpaid amounts at the prime lending rate prevailing during such period
as
published in The Wall Street Journal, calculated on a daily basis from
the date such amounts were required to be paid until the date of actual
payment.
(h) If
Parent fails to pay as directed in writing by the Company any amounts due
to
accounts designated by the Company pursuant to this Section 7.6 within
the time periods specified in this Section 7.6, Parent shall pay the
costs and expenses (including reasonable legal fees and expenses) incurred
by
the Company in connection with any action, including the filing of any
lawsuit,
taken to collect payment of such amounts, together with interest on such
unpaid
amounts at the prime lending rate prevailing during such period as published
in
The Wall Street Journal, calculated on a daily basis from the date such
amounts were required to be paid until the date of actual payment.
Section
7.7 Amendment. This
Agreement may be amended by the parties to this Agreement at any time prior
to
the Effective Time, whether before or after stockholder approval hereof;
provided, however, that (a) no amendment that requires further
stockholder approval under applicable Laws after stockholder approval hereof
will be made without such required further approval and (b) such amendment
has
been duly authorized or approved by each of Parent and the Company (acting
through the or on the recommendation of Special Committee, if then in
existence). This Agreement may not be amended except by an instrument
in writing signed by each of the parties to this Agreement.
Section
7.8 Extension;
Waiver. At any time prior to the Effective Time, Parent (for
itself and Merger Sub), on the one hand, and the Company, on the other
hand, may
(a) extend the time for the performance of any of the obligations of the
other
party, (b) waive any inaccuracies in the representations and warranties
of the
other party contained in this Agreement or in any document delivered under
this
Agreement, or (c) unless prohibited by applicable Laws, waive compliance
with
any of the covenants or conditions contained in this Agreement. Any
agreement on the part of a party to any extension or waiver will be valid
only
if set forth in an instrument in writing signed by such party. The
failure of any party to assert any of its rights under this Agreement or
otherwise will not constitute a waiver of such rights.
MISCELLANEOUS
Section
8.1 Survival. None
of the representations and warranties contained in this Agreement or in
any
instrument delivered under this Agreement will survive the Effective
Time. This Section 8.1 does not limit any covenant of the
parties to this Agreement which, by its terms, contemplates performance
after
the Effective Time. Without limiting the preceding sentence, the
covenants and agreements of the parties contained in Sections 7.5 (and
the Sections referred to therein) and 7.6 and Article VIII of this
Agreement shall survive termination of this Agreement in accordance with
their
terms. The Confidentiality Agreement will (a) survive termination of
this Agreement in accordance with its terms and (b) terminate as of the
Effective Time.
Section
8.2 Governing
Law. This Agreement will be governed by, and construed in
accordance with, the Laws of the State of Delaware, without giving effect
to any
applicable principles of conflict of laws that would cause the Laws of
another
State to otherwise govern this Agreement.
Section
8.3 Submission
to Jurisdiction. Each of the parties hereto irrevocably agrees
that any legal action or proceeding with respect to this Agreement and
the
rights and obligations arising hereunder, or for recognition and enforcement
of
any judgment in respect of this Agreement and the rights and obligations
arising
hereunder brought by the other party hereto or its successors or assigns
shall
be brought and determined exclusively in any state or federal court in
the State
of Delaware. Each of the parties hereto agrees that mailing of
process or other papers in connection with any such action or proceeding
in the
manner provided in Section 8.5 or in such other manner as may be
permitted by applicable Laws, will be valid and sufficient service
thereof. Each of the parties hereto hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of
the
aforesaid courts and agrees that it will not bring any action relating
to this
Agreement or any of the transactions contemplated by this Agreement in
any court
or tribunal other than the aforesaid courts. Each of the parties
hereto hereby irrevocably waives, and agrees not to assert, by way of motion,
as
a defense, counterclaim or otherwise, in any action or proceeding with
respect
to this Agreement and the rights and obligations arising hereunder, or
for
recognition and enforcement of any judgment in respect of this Agreement
and the
rights and obligations arising hereunder (i) any claim that it is not personally
subject to the jurisdiction of the above named courts for any reason other
than
the failure to serve process in accordance with this Section 8.3, (ii)
any claim that it or its property is exempt or immune from jurisdiction
of any
such court or from any legal process commenced in such courts (whether
through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise) and (iii) to the fullest
extent
permitted by the applicable Law, any claim that (x) the suit, action or
proceeding in such court is brought in an inconvenient forum, (y) the venue
of
such suit, action or proceeding is improper or (z) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
Section
8.4 Waiver
of Jury Trial. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues and, therefore, each such party irrevocably
and
unconditionally waives any right it may have to a trial by jury in respect
of
any Legal Action arising out of or relating to this Agreement or the
transactions contemplated by this Agreement. Each party to this
Agreement certifies and acknowledges that (a) no Representative of any
other
party has represented, expressly or otherwise, that such other party would
not
seek to enforce the foregoing waiver in the event of a Legal Action, (b)
such
party has considered the implications of this waiver, (c) such party makes
this
waiver voluntarily, and (d) such party has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications
in this
Section 8.4.
Section
8.5 Notices. Any
notice, request, instruction or other communication under this Agreement
will be
in writing and delivered by hand or overnight courier service or by
facsimile:
If
to
Parent or Merger Sub, to:
Windy
City Investments, Inc.
c/o
Madison Dearborn Partners, LLC
Three
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
with
copies (which will not constitute notice to Parent or Merger Sub)
to:
▇▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If
to the
Company, to:
Nuveen
Investments, Inc.
▇▇▇
▇.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
with
copies (which will not constitute notice to the Company) to each
of:
Cravath,
Swaine & ▇▇▇▇▇ LLP
Worldwide
Plaza
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, III, Esq.
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇
▇. ▇▇▇▇,
Esq.
or
to
such other Persons, addresses or facsimile numbers as may be designated
in
writing by the Person entitled to receive such communication as provided
above. Each such communication will be effective (a) if delivered by
hand or overnight courier, when such delivery is made at the address specified
in this Section 8.5, or (b) if delivered by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section
8.5 and appropriate confirmation is received.
Section
8.6 Entire
Agreement. This Agreement (including the Exhibits to this
Agreement), the Company Disclosure Letter, the Acquiror Disclosure Letter
and the Confidentiality Agreement constitute the entire agreement and
supersede all other prior agreements, understandings, representations and
warranties, both written and oral, among the parties to this Agreement
with
respect to the subject matter of this Agreement. No representation,
warranty, inducement, promise, understanding or condition not set forth
in this
Agreement has been made or relied upon by any of the parties to this
Agreement.
Section
8.7 No
Third Party Beneficiaries. This Agreement is not intended to
confer upon any person, other than the parties hereto and their successors
and
permitted assigns, any rights or remedies hereunder, except that the parties
hereto agree and acknowledge (i) that the agreements and covenants contained
in
Section 5.7 are intended for the direct and
irrevocable benefit of the Indemnified Parties described therein and their
respective heirs and legal representatives (each such Indemnified Party,
a
“Third Party Beneficiary”), and that each such Third Party Beneficiary,
although not a party to this Agreement, shall be and is a direct and irrevocable
third party beneficiary of such agreements and covenants and shall have
the
right to enforce such agreements and covenants against the Surviving Corporation
in all respects fully and to the same extent as if such Third Party Beneficiary
were a party hereto and (ii) following the Effective Time, the provisions
of
Article II shall be enforceable by holders of Common Stock, Company Stock
Options and Company RSUs.
Section
8.8 Severability. The
provisions of this Agreement are severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions of this Agreement. If any provision of this
Agreement, or the application of that provision to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision will be substituted for that provision in order to carry out,
so far
as may be valid and enforceable, the intent and purpose of the invalid
or
unenforceable provision and (b) the remainder of this Agreement and the
application of that provision to other Persons or circumstances will not
be
affected by such invalidity or unenforceability, nor will such invalidity
or
unenforceability affect the validity or enforceability of that provision,
or the
application of that provision, in any other jurisdiction.
Section
8.9 Rules
of Construction. The parties to this Agreement have been
represented by counsel during the negotiation and execution of this Agreement
and waive the application of any Laws or rule of construction providing
that
ambiguities in any agreement or other document will be construed against
the
party drafting such agreement or other document.
Section
8.10 Assignment. This
Agreement may not be assigned by any party without the prior written consent
of
the other party whether by operation of Law or otherwise. Any purported
assignment not permitted under this Section 8.10 will be null and void
ab initio. This Agreement will be binding upon, inure
to the benefit of, and be enforceable by, the parties and their successors
and
assigns.
Section
8.11 Specific
Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that Parent and Merger Sub 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 addition to any other remedy to which Parent and Merger Sub is entitled
at
law or in equity. The Company agrees that it shall not oppose the
granting of such relief and hereby irrevocably waives any requirement for
the
security or posting of any bond in connection with such relief. For
the avoidance of doubt, the parties agree (a) the Company shall not be
entitled
to an injunction or injunctions to prevent breaches of this Agreement nor
to
enforce specifically the terms and provisions of this Agreement, (b) in
the
event of a Non-Breach Financing Failure, the Company’s sole and exclusive remedy
shall be the right to terminate this Agreement pursuant to Section 7.4(c)
and to receive payment of the Parent Termination Fee and (c) the liability
for
losses and damages of the Company or its Subsidiaries, as a group, on the
one
hand, and the Guarantors, Parent, Merger Sub and the Specified Persons,
as a
group, on the other hand, shall be limited as set forth in
Section 7.6(e).
Section
8.12 Stockholder
Litigation. In the event that any stockholder litigation related
to this Agreement or the Merger and the other transactions contemplated
by this
Agreement is brought, or, to the Knowledge of the Company, threatened,
against
the Company and/or the members of the Company Board prior to the Effective
Time,
the Company shall not settle any such litigation without the written consent
of
Parent (such consent not to be unreasonably withheld or delayed). The Company
shall promptly notify Parent of any such stockholder litigation brought,
or
threatened, against the Company and/or members of the Company Board and
keep
Parent reasonably informed with respect to the status thereof.
Section
8.13 Counterparts;
Effectiveness. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed
by each
party and delivered to each other party. In the event that any
signature to this Agreement or any amendment hereto is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or
on whose
behalf such signature is executed) with the same force and effect as if
such
facsimile or “.pdf” signature page were an original thereof. No party
hereto shall raise the use of a facsimile machine or e-mail delivery of
a “.pdf”
format data file to deliver a signature to this Agreement or any amendment
hereto or the fact that such signature was transmitted or communicated
through
the use of a facsimile machine or e-mail delivery of a “.pdf” format data file
as a defense to the formation or enforceability of a contract and each
party
hereto forever waives any such defense.
[Signature
page follows.]
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto as of the date first
written
above.
| WINDY CITY INVESTMENTS, INC., | |||
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|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: General Counsel | |||
|
|
|||
|
WINDY
CITY ACQUISITION CORP.,
|
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|
|
By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: General Counsel | |||
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NUVEEN
INVESTMENTS, INC.,
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By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: President | |||
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