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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MACROMEDIA, INC.,
ALASKA ACQUISITION CORPORATION
AND
ALLAIRE CORPORATION
JANUARY 16, 2001
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TABLE OF CONTENTS
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ARTICLE I THE MERGER...........................................................1
1.1 The Merger..................................................1
1.2 Effective Time; Closing.....................................2
1.3 Effect of the Merger........................................2
1.4 Certificate of Incorporation; Bylaws........................2
1.5 Directors and Officers......................................2
1.6 Effect on Capital Stock.....................................2
1.7 Exchange of Certificates....................................4
1.8 No Further Ownership Rights in Company Common Stock.........7
1.9 Restricted Stock............................................8
1.10 Tax and Accounting Consequences.............................8
1.11 Taking of Necessary Action; Further Action..................8
ARTICLE II REPRESENTATIONS AND WARRANTIES OF COMPANY...........................9
2.1 Organization; Subsidiaries..................................9
2.2 Company Capitalization.....................................10
2.3 Obligations With Respect to Capital Stock..................11
2.4 Authority; Non-Contravention...............................12
2.5 SEC Filings; Company Financial Statements..................13
2.6 Absence of Certain Changes or Events.......................14
2.7 Taxes......................................................15
2.8 Title to Properties........................................17
2.9 Intellectual Property......................................17
2.10 Compliance with Laws.......................................20
2.11 Litigation.................................................20
2.12 Employee Benefit Plans.....................................21
2.13 Environmental Matters......................................25
2.14 Certain Agreements.........................................26
2.15 Brokers' and Finders' Fees.................................27
2.16 Insurance..................................................28
2.17 Disclosure.................................................28
2.18 Board Approval.............................................28
2.19 Fairness Opinion...........................................29
2.20 DGCL Section 203 and Rights Agreement Not Applicable.......29
2.21 Affiliates.................................................29
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB...........30
3.1 Organization of Parent and Merger Sub......................30
3.2 Parent and Merger Sub Capitalization.......................30
3.3 Authority; Non-Contravention...............................31
3.4 SEC Filings; Parent Financial Statements...................32
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3.5 Absence of Certain Changes or Events.......................33
3.6 Litigation.................................................33
3.7 Disclosure.................................................33
3.8 Brokers' and Finders' Fees.................................34
3.9 Tax-Free Reorganization....................................34
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME................................34
4.1 Conduct of Business by Company.............................34
4.1 Conduct of Business by Parent..............................37
ARTICLE V ADDITIONAL AGREEMENTS...............................................37
5.1 Proxy Statement/Prospectus; Registration Statement;
Antitrust and Other Filings...............................37
5.2 Meeting of Company Stockholders............................38
5.3 Confidentiality; Access to Information.....................41
5.4 No Solicitation............................................41
5.5 Public Disclosure..........................................42
5.6 Reasonable Efforts; Notification...........................43
5.7 Third Party Consents.......................................44
5.8 Stock Options; Warrants and ESPP...........................44
5.9 Form S-8...................................................45
5.10 Indemnification............................................45
5.11 Nasdaq Listing.............................................46
5.12 Rights Agreement; Takeover Statutes........................46
5.13 Certain Employee Benefits..................................46
5.14 Company Affiliates; Restrictive Legend.....................47
5.15 Letter of Company's Accountants............................47
5.16 Section 16.................................................47
5.17 Continuity of Business Enterprise..........................48
ARTICLE VI CONDITIONS TO THE MERGER...........................................48
6.1 Conditions to Obligations of Each Party to Effect
the Merger................................................48
6.2 Additional Conditions to Obligations of Company............49
6.3 Additional Conditions to the Obligations of Parent and
Merger Sub................................................50
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER.................................51
7.1 Termination................................................51
7.2 Notice of Termination Effect of Termination................52
7.3 Fees and Expenses..........................................53
7.4 Amendment..................................................54
7.5 Extension; Waiver..........................................54
ARTICLE VIII GENERAL PROVISIONS...............................................55
8.1 Non-Survival of Representations and Warranties.............55
8.2 Notices....................................................55
8.3 Interpretation; Certain Defined Terms......................56
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8.4 Counterparts...............................................57
8.5 Entire Agreement; Third Party Beneficiaries................57
8.6 Severability...............................................57
8.7 Other Remedies; Specific Performance; Fees.................57
8.8 Governing Law..............................................58
8.9 Rules of Construction......................................58
8.10 Assignment.................................................58
8.11 Waiver Of Jury Trial.......................................58
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INDEX OF EXHIBITS
Exhibit A Form of Stock Option Agreement
Exhibit B Form of Voting Agreement
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is made and
entered into as of January 16, 2001, among Macromedia, Inc., a Delaware
corporation ("PARENT"), Alaska Acquisition Corporation, a Delaware corporation
and a wholly owned first-tier subsidiary of Parent ("MERGER SUB"), and Allaire
Corporation, a Delaware corporation ("COMPANY").
RECITALS
A. The respective Boards of Directors of Parent, Merger Sub and
Company have approved this Agreement, and declared advisable the merger of
Merger Sub with Company (the "MERGER") upon the terms and subject to the
conditions of this Agreement and in accordance with the General Corporation Law
of the State of Delaware ("DELAWARE LAW").
B. For United States federal income tax purposes, the Merger is
intended to qualify as a "reorganization" pursuant to the provisions of Section
368 of the Internal Revenue Code of 1986, as amended (the "CODE"), except in the
event that a Conversion Event (as defined in Section 1.6) occurs. For accounting
purposes, the Merger is intended to be accounted for as a purchase under United
States generally accepted accounting principles ("GAAP").
C. Concurrently with the execution of this Agreement, and as a
condition and inducement to Parent's willingness to enter into this Agreement,
Company shall execute and deliver a Stock Option Agreement in favor of Parent in
substantially the form attached hereto as Exhibit A (the "STOCK OPTION
AGREEMENT"). The Board of Directors of Company has approved the Stock Option
Agreement.
D. Concurrently with the execution of this Agreement, and as a
condition and inducement to Parent's willingness to enter into this Agreement,
certain stockholders of Company are entering into Voting Agreements with Parent
in the form of Exhibit B (the "VOTING AGREEMENT").
In consideration of the foregoing and the representations,
warranties, covenants and agreements set forth in this Agreement, the parties
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Unless the Conversion Event occurs, upon the terms
and subject to the conditions of this Agreement and the applicable provisions of
Delaware Law, at the Effective Time, Company shall be merged with and into
Merger Sub, the separate corporate existence of Company shall cease, and Merger
Sub shall continue as the surviving corporation of the Merger. If the Conversion
Event occurs, then upon the terms and subject to the conditions of this
Agreement and the applicable provisions of Delaware Law, at the Effective Time,
Merger Sub shall be merged with and into Company, the separate corporate
existence of Merger Sub shall
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cease, and Company shall continue as the surviving corporation of the Merger.
The corporation surviving the Merger shall be referred to herein as the
"SURVIVING CORPORATION."
1.2 Effective Time; Closing. Subject to the provisions of this
Agreement, the parties hereto shall cause the Merger to be consummated by filing
a certificate of merger, in such appropriate form as determined by the parties,
with the Secretary of State of the State of Delaware in accordance with the
relevant provisions of Delaware Law (the "CERTIFICATE OF MERGER") (the time of
such filing (or such later time as may be agreed in writing by Company and
Parent and specified in the Certificate of Merger) being the "EFFECTIVE TIME")
as soon as practicable on or after the Closing Date. The closing of the Merger
(the "CLOSING") shall take place at the offices of Fenwick & West LLP, 275
Battery Street, San Francisco, California, at a time and date to be specified by
the parties, which shall be no later than the second business day after the
satisfaction or waiver of the conditions set forth in Article VI, or at such
other time, date and location as the parties hereto agree in writing (the
"CLOSING DATE").
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement and the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, at the Effective
Time, all the property, rights, privileges, powers and franchises of Company and
Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities
and duties of Company and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) The Certificate of Merger shall provide that, at the
Effective Time, the Certificate of Incorporation of the Surviving Corporation
shall be in substantially the form of the Certificate of Incorporation of the
Merger Sub as in effect immediately prior to the Effective Time; provided,
however, that as of the Effective Time, Article I of the Certificate of
Incorporation of the Surviving Corporation shall read: "The name of the
corporation is "Allaire Corporation."
(b) At the Effective Time, the Bylaws of Merger Sub, as in
effect immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation until thereafter amended.
1.5 Directors and Officers. The initial directors of the Surviving
Corporation shall be the directors of Merger Sub immediately prior to the
Effective Time, until their respective successors are duly elected or appointed
and qualified. The initial officers of the Surviving Corporation shall be the
officers of Merger Sub immediately prior to the Effective Time, until their
respective successors are duly appointed.
1.6 Effect on Capital Stock. Subject to the terms and conditions of
this Agreement, at the Effective Time, by virtue of the Merger and without any
action on the part of Merger Sub, Company or the holders of any of the following
securities:
(a) Conversion of Company Common Stock.
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(i) Except as provided in Section 1.6(a)(ii),
each share of common stock, par value $0.01 per share, of Company ("COMPANY
COMMON STOCK") issued and outstanding immediately prior to the Effective Time,
other than any shares of Company Common Stock to be canceled pursuant to Section
1.6(b), will be canceled and extinguished and automatically converted (subject
to Section 1.6(e)) into the right to receive (x) 0.20 (the "EXCHANGE RATIO") of
a share of common stock, par value $0.001 per share, of Parent ("PARENT COMMON
STOCK") and (y) $3.00 in cash (the "CASH CONSIDERATION"), upon surrender of the
certificate representing such share of Company Common Stock in the manner
provided in Section 1.7. Unless otherwise stated or otherwise indicated by the
context, all references in this Agreement and the Stock Option Agreement to
"Company Common Stock" shall be deemed to include the associated preferred share
purchase rights ("RIGHTS") issued pursuant to the Rights Agreement, dated as of
December 8, 2000, between Company and Fleet Bank, N.A., as Rights Agent (the
"RIGHTS AGREEMENT"). No fraction of a share of Parent Common Stock will be
issued by virtue of the Merger, but in lieu thereof, a cash payment shall be
made pursuant to Section 1.7(e).
(ii) If the Conversion Event occurs, then upon
the Effective Time, each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time, other than any shares of Company Common
Stock to be canceled pursuant to Section 1.6(b), will be canceled and
extinguished and automatically converted (subject to Section 1.6(e)) into the
right to receive an amount of cash (rounded to the nearest whole cent) equal to
the sum of (x) the amount of cash that is the product of (A) the Trigger Price
(as defined below) multiplied by (B) the Exchange Ratio (the "SUBSTITUTE CASH
CONSIDERATION") plus (y) the Cash Consideration, upon surrender of the
certificate representing such share of Company Common Stock in the manner
provided in Section 1.7.
(b) Cancellation of Company-Owned and Parent-Owned Stock.
Each share of Company Common Stock held by Company or owned by Merger Sub,
Parent or any direct or indirect wholly owned subsidiary of Company or of Parent
immediately prior to the Effective Time shall be canceled and extinguished
without any conversion thereof.
(c) Stock Options; Employee Stock Purchase Plan. At the
Effective Time, all options to purchase Company Common Stock then outstanding,
whether under Company's 1997 Stock Incentive Plan, Company's 1998 Stock
Incentive Plan or Company's 2000 Stock Incentive Plan (collectively, the
"COMPANY OPTION PLANS"), pursuant to another Company compensatory plan or
otherwise (each such option, whether issued pursuant to the Company Option Plans
or otherwise, a "COMPANY OPTION"), and each warrant outstanding to acquire
Company Common Stock (the "COMPANY WARRANTS") shall be assumed by Parent in
accordance with Section 5.8 of this Agreement. Rights outstanding under
Company's 1998 Employee Stock Purchase Plan (the "COMPANY ESPP") shall be
treated as set forth in Section 5.8 of this Agreement.
(d) Capital Stock of Merger Sub.
(i) Except as provided in Section 1.6(d)(ii),
each share of common stock, par value $0.001 per share, of Merger Sub ("MERGER
SUB COMMON STOCK") issued and outstanding immediately prior to the Effective
Time shall continue to be outstanding as one
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validly issued, fully paid and nonassessable share of common stock, $0.01 par
value per share of the Surviving Corporation. Following the Effective Time, each
certificate evidencing ownership of shares of Merger Sub Common Stock shall
evidence ownership of such shares of capital stock of the Surviving Corporation.
(ii) If the Conversion Event occurs, then each
share of Merger Sub Common Stock issued and outstanding immediately prior to the
Effective Time shall be converted into one validly issued, fully paid and
nonassessable share of common stock, $0.01 par value per share, of the Surviving
Corporation. Following the Effective Time, each certificate evidencing ownership
of shares of Merger Sub Common Stock shall evidence ownership of such shares of
capital stock of the Surviving Corporation.
(e) Adjustments to Merger Consideration. The Exchange
Ratio, the Cash Consideration and the Substitute Cash Amount, as applicable,
shall be adjusted to reflect appropriately the effect of any stock split,
reverse stock split, stock dividend (including any dividend or distribution of
securities convertible into Parent Common Stock or Company Common Stock),
reorganization, recapitalization, reclassification or other like change with
respect to Parent Common Stock or Company Common Stock occurring on or after the
date hereof and prior to the Effective Time.
(f) As used in this Agreement, the following terms shall
have the following meanings:
(i) The "CONVERSION EVENT" shall occur if the
product of (A) the Trigger Price multiplied by (B) the Exchange Ratio shall be
less than the amount of the Cash Consideration.
(ii) The term "MERGER CONSIDERATION" means the
aggregate amount of consideration per share of Company Common Stock issuable in
the Merger, determined as the sum of (A) the Cash Consideration and (B) the
fraction of a share of Parent Common Stock, determined by application of the
Exchange Ratio, or the Substitute Cash Consideration, whichever is applicable
under Section 1.6(a).
(iii) The "TRIGGER PRICE" shall mean the closing
sale price of Parent Common Stock during regular trading hours on the Nasdaq
National Market on the day which is two trading days before the date fixed for
the Company Stockholders' Meeting in the Proxy Statement/Prospectus (as each
such term is defined in Section 2.17).
1.7 Exchange of Certificates.
(a) Exchange Agent. Parent shall select an institution
reasonably acceptable to Company to act as the exchange agent (the "EXCHANGE
AGENT") in the Merger.
(b) Exchange Fund. As promptly as practicable after the
Effective Time, Parent shall make available to the Exchange Agent for exchange
in accordance with this Article I, the Merger Consideration (such shares of
Parent Common Stock or Substitute Cash Consideration and Cash Consideration
together with any cash in lieu of fractional shares and any
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dividends or distributions with respect thereto, are hereinafter referred to as
the "EXCHANGE FUND") issuable pursuant to Section 1.6 in exchange for
outstanding shares of Company Common Stock.
(c) Exchange Procedures. As promptly as practicable after
the Effective Time, Parent shall instruct the Exchange Agent to mail to each
holder of record of a certificate or certificates ("CERTIFICATES") that
immediately prior to the Effective Time represented outstanding shares of
Company Common Stock which were converted into the right to receive the Merger
Consideration pursuant to Section 1.6, (i) a letter of transmittal in customary
form (that shall specify that delivery shall be effected, and risk of loss and
title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent and shall contain such other provisions as
Parent may reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for the Merger Consideration. Upon
surrender of Certificates for cancellation to the Exchange Agent together with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, the holders of such Certificates shall be
entitled to receive in exchange therefor the Merger Consideration into which
their shares of Company Common Stock were converted at the Effective Time,
(including, if shares of Parent Common Stock are issued to holders of Company
Common Stock in the Merger, payment in lieu of fractional shares of Parent
Common Stock that such holders have the right to receive pursuant to Section
1.7(e) and any dividends or distributions payable pursuant to Section 1.7(d))
and the Certificates so surrendered shall forthwith be canceled. Until so
surrendered, outstanding Certificates will be deemed from and after the
Effective Time, for all corporate purposes, to evidence only the ownership of
the Merger Consideration (which, if Parent Common Stock is issued to holders of
Company Common Stock in the Merger, shall include the full number of shares of
such Parent Common Stock together with the right to receive any dividends or
distributions payable pursuant to Section 1.7(d)). No interest will be paid or
accrued on any Cash Consideration, Substitute Cash Consideration or cash in lieu
of fractional shares of Parent Common Stock or on any unpaid dividends or
distributions payable to holders of Certificates. In the event of a transfer of
ownership of shares of Company Common Stock that is not registered in the
transfer records of Company, the Merger Consideration, including any certificate
representing the proper number of shares of Parent Common Stock, may be issued
to a transferee if the Certificate representing such shares of Company Common
Stock is presented to the Exchange Agent, accompanied by all documents required
to evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid.
(d) Distributions With Respect to Unexchanged Shares. In
the event that shares of Parent Common Stock are issued to the holders of
Company Common Stock in the Merger, no dividends or other distributions declared
or made after the date of this Agreement with respect to Parent Common Stock
with a record date after the Effective Time will be paid to the holders of any
unsurrendered Certificates with respect to the shares of Parent Common Stock
represented thereby until the holders of record of such Certificates shall
surrender such Certificates. If such shares of Parent Common Stock are issued,
subject to applicable law, following surrender of any such Certificates, the
Exchange Agent shall deliver to the holders of certificates representing whole
shares of Parent Common Stock issued in exchange therefor, without interest, (i)
promptly, the amount of any cash payable with respect to a fractional share of
Parent Common Stock to which such holder is entitled pursuant to Section 1.7(e)
and the
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amount of dividends or other distributions with a record date after the
Effective Time theretofore paid with respect to such whole shares of Parent
Common Stock, and (ii) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time but prior to
surrender and a payment date occurring after surrender, payable with respect to
such whole shares of Parent Common Stock.
(e) Fractional Shares. In the event that Parent Common
Stock is issued to the holders of shares of Company Common Stock in the Merger:
(i) as promptly as practicable following the
Effective Time, the Exchange Agent shall determine the excess of (A) the number
of full shares of Parent Common Stock delivered to the Exchange Agent pursuant
to Section 1.7(b), over (B) the aggregate number of full shares of
Parent Common Stock to be distributed to holders of Company Common Stock
pursuant to Section 1.7(c) (such excess, the "EXCESS SHARES"). Following the
Effective Time, the Exchange Agent, as agent for the holders of Company Common
Stock, shall sell the Excess Shares at then prevailing prices on the Nasdaq
Stock Market in the manner set forth in paragraph (ii) of this Section 1.7(e).
(ii) The sale of the excess shares by the
Exchange Agent shall be executed on the Nasdaq Stock Market and shall be
executed in round lots to the extent practicable. The Exchange Agent shall use
all commercially reasonable efforts to complete the sale of the Excess Shares as
promptly following the Effective Time as, in the Exchange Agent's reasonable
judgment, is practicable consistent with obtaining the best execution of such
sales in light of prevailing market conditions. Until the net proceeds of such
sales have been distributed to the holders of Company Common Stock, the Exchange
Agent will hold such proceeds in trust for the holders of Company Common Stock.
The Exchange Agent will determine the portion of such net proceeds to which each
holder of Company Common Stock shall be entitled, if any, by multiplying the
amount of the aggregate net proceeds by a fraction the numerator of which is the
amount of the fractional share interest to which such holder of Company Common
Stock is entitled (after taking into account all shares of Parent Common Stock
to be issued to such holder) and the denominator of which is the aggregate
amount of fractional share interests to which all holders of Company Common
Stock are entitled. As soon as practicable after the determination of the amount
of cash, if any, to be paid to holders of Company Common Stock with respect to
fractional share interests, the Exchange Agent shall promptly pay such amounts
to such holders of Company Common Stock in accordance with the terms of Section
1.7(c).
(iii) Notwithstanding the provisions of
paragraphs (i) and (ii) of this Section 1.7(e), Parent may decide, at its
option, exercised prior to the Effective Time, in lieu of the issuance and sale
of Excess Shares and the making of the payments contemplated in such paragraphs,
that Parent shall pay to the Exchange Agent an amount sufficient for the
Exchange Agent to pay each holder of Company Common Stock the amount such holder
would have received pursuant to Section 1.7(e)(ii) assuming that the sales of
Parent Common Stock were made at a price equal to the average of the closing
prices of the Parent Common Stock on the Nasdaq Stock Market for the five
consecutive trading days immediately following the Effective Time and, in such
case, all references herein to the cash proceeds of the sale of the Excess
Shares and similar references shall be deemed to mean and refer to the payments
calculated as set forth
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in this paragraph (iii). In such event, Excess Shares shall not be issued or
otherwise transferred to the Exchange Agent pursuant to Sections 1.7(b) or (e).
(f) Required Withholding. Each of the Exchange Agent,
Parent and the Surviving Corporation shall be entitled to deduct and withhold
from any consideration payable or otherwise deliverable pursuant to this
Agreement to any holder or former holder of Company Common Stock such amounts as
may be required to be deducted or withheld therefrom under the Code or under any
provision of state, local or foreign tax law or under any other applicable Legal
Requirement (as defined in Section 2.2(c)). To the extent such amounts are so
deducted or withheld, such amounts shall be treated for all purposes under this
Agreement as having been paid to the person to whom such amounts would otherwise
have been paid.
(g) Lost, Stolen or Destroyed Certificates. In the event
that any Certificates shall have been lost, stolen or destroyed, the Exchange
Agent shall issue in exchange for such lost, stolen or destroyed Certificates,
upon the making of an affidavit of that fact by the holder thereof, the Merger
Consideration into which the shares of Company Common Stock represented by such
Certificates were converted pursuant to Section 1.6, including, if applicable,
cash for fractional shares, if any, as may be required pursuant to Section
1.7(e) and any dividends or distributions payable pursuant to Section 1.7(d);
provided, however, that Parent may, in its discretion and as a condition
precedent to the issuance of such Merger Consideration, cash and other
distributions, require the owner of such lost, stolen or destroyed Certificates
to deliver a bond in such sum as it may reasonably direct as indemnity against
any claim that may be made against Parent, the Surviving Corporation or the
Exchange Agent with respect to the Certificates alleged to have been lost,
stolen or destroyed.
(h) No Liability. Notwithstanding anything to the contrary
in this Section 1.7, neither the Exchange Agent, Parent, the Surviving
Corporation nor any party hereto shall be liable to a holder of shares of Parent
Common Stock or rights to other Merger Consideration or of Company Common Stock
for any amount properly paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(i) Termination of Exchange Fund. Any portion of the
Exchange Fund which remains undistributed to the holders of Company Common Stock
for six months after the Effective Time shall be delivered to Parent, upon
demand, and any holders of Company Common Stock who have not theretofore
complied with the provisions of this Section 1.7 shall thereafter look only to
Parent for the Merger Consideration to which they are entitled including, if
applicable, any dividends or other distributions with respect to Parent Common
Stock to which they are entitled pursuant to Section 1.7(d) and, any cash in
lieu of fractional shares of Parent Common Stock to which they are entitled
pursuant to Section 1.7(e), in each case, without any interest thereon.
1.8 No Further Ownership Rights in Company Common Stock. All Merger
Consideration issued in accordance with the terms hereof (including any shares
of Parent Common Stock and cash paid in respect thereof pursuant to Section
1.7(d) and (e)) shall be deemed to have been issued in full satisfaction of all
rights pertaining to such shares of Company Common Stock, and there shall be no
further registration of transfers on the records of the
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Surviving Corporation of shares of Company Common Stock that were outstanding
immediately prior to the Effective Time. If after the Effective Time
Certificates are presented to the Surviving Corporation for any reason, they
shall be canceled and exchanged as provided in this Article I.
1.9 Restricted Stock. If any shares of Company Common Stock that are
outstanding immediately prior to the Effective Time are unvested or are subject
to a repurchase option, risk of forfeiture or other condition providing that
such shares ("COMPANY RESTRICTED STOCK") may be forfeited or repurchased by
Company upon any termination of the stockholders' employment, directorship or
other relationship with Company (and/or any affiliate of Company) under the
terms of any restricted stock purchase agreement or other agreement with Company
that does not by its terms provide that such repurchase option, risk of
forfeiture or other condition fully lapses upon consummation of the Merger, then
(i) the shares of Parent Common Stock issued upon the conversion of such shares
of Company Common Stock in the Merger will continue to be unvested and subject
to the same repurchase options, risks of forfeiture or other conditions
following the Effective Time, and the certificates representing such shares of
Parent Common Stock may accordingly be marked with appropriate legends noting
such repurchase options, risks of forfeiture or other conditions and (ii) any
cash payable upon the conversion of such shares of Company Restricted Stock in
the Merger will be paid to each holder of such shares upon the vesting or lapse
of the right of repurchase thereof. Company shall take all actions that may be
necessary to ensure that, from and after the Effective Time, Parent is entitled
to exercise any such repurchase option or other right set forth in any such
restricted stock purchase agreement or other agreement. A listing of the holders
of Company Restricted Stock, together with the number of shares and the vesting
schedule of Company Restricted Stock held by each, is set forth in Part 1.9 of
the Company Disclosure Letter.
1.10 Tax and Accounting Consequences.
(a) Unless the Conversion Event occurs, it is intended by
the parties hereto that the Merger shall constitute a "reorganization" within
the meaning of Section 368 of the Code. Unless the Conversion Event occurs, the
parties hereto adopt this Agreement as a "plan of reorganization" within the
meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Income Tax
Regulations.
(b) It is intended by the parties hereto that the Merger
shall be treated for accounting purposes as a purchase.
1.11 Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of Company and Merger Sub, the officers and directors of
Company and Merger Sub will take all such lawful and necessary action. Parent
shall cause Merger Sub to perform all of its obligations relating to this
Agreement and the transactions contemplated hereby.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY
As of the date of this Agreement, Company represents and warrants to
Parent and Merger Sub, subject to the exceptions specifically disclosed in
writing in the disclosure letter and referencing a specific representation
delivered by Company to Parent dated as of the date hereof and certified by a
duly authorized officer of Company (in such person's capacity as an officer and
not as an individual) (the "COMPANY DISCLOSURE LETTER"), as follows:
2.1 Organization; Subsidiaries.
(a) Company and each of its material subsidiaries (which
material subsidiaries are set forth on Part 2.1 to the Company Disclosure
Letter) (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized; (ii) has
the corporate or other power and authority to own, lease and operate its assets
and property and to carry on its business as now being conducted; and (iii)
except as would not be material to Company, is duly qualified or licensed to do
business in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary.
(b) Other than the corporations identified in Part 2.1 of
the Company Disclosure Letter, neither Company nor any of the other corporations
identified in Part 2.1 of the Company Disclosure Letter owns any capital stock
of, or any equity interest of any nature in, any corporation, partnership, joint
venture arrangement or other business entity, other than the entities identified
in Part 2.1 of the Company Disclosure Letter, except for passive investments in
equity interests of public companies as part of the cash management program of
Company. Neither Company nor any of its subsidiaries has agreed or is obligated
to make, or is bound by any written or oral agreement, contract, lease,
instrument, note, option, warranty, purchase order, license, insurance policy,
benefit plan or legally binding commitment or undertaking of any nature, as in
effect as of the date hereof or as may hereinafter be in effect under which it
may become obligated to make any future investment in or capital contribution to
any other entity. Neither Company, nor any of its subsidiaries, has, at any
time, been a general partner of any general partnership, limited partnership or
other entity. Part 2.1 of the Company Disclosure Letter indicates the
jurisdiction of organization of each entity listed therein and Company's direct
or indirect equity interest therein.
(c) Company has delivered or made available to Parent a
true and correct copy of the Certificate of Incorporation and Bylaws of Company
and similar governing instruments of each of its material subsidiaries, each as
amended to date (collectively, the "COMPANY CHARTER DOCUMENTS"), and each such
instrument is in full force and effect. Neither Company nor any of its
subsidiaries is in violation of any of the provisions of the Company Charter
Documents. Company has delivered or made available to Parent all proposed or
considered amendments to the Company Charter Documents.
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2.2 Company Capitalization.
(a) The authorized capital stock of Company consists solely
of 100,000,000 shares of Company Common Stock, of which there were 27,604,931
shares issued and outstanding as of the close of business on January 12, 2001,
and 5,000,000 shares of preferred stock, par value $0.01 per share, of which no
shares are issued or outstanding. All outstanding shares of Company Common Stock
are duly authorized, validly issued, fully paid and nonassessable and are not
subject to preemptive rights created by statute, the Certificate of
Incorporation or Bylaws of Company or any agreement or document to which Company
is a party or by which it is bound. As of January 12, 2001, there are 16,610
shares of Company Common Stock held in treasury by Company. From and after the
Effective Time, the shares of Parent Common Stock issued in exchange for any
shares of Company Restricted Stock will, without any further act of Parent,
Company or any other person, become subject to the restrictions, conditions and
other provisions of such Company Restricted Stock, and Parent will automatically
succeed to and become entitled to exercise Company's rights and remedies under
such Company Restricted Stock.
(b) As of the close of business on January 12, 2001, (i)
11,664,087 shares of Company Common Stock are subject to issuance pursuant to
outstanding Company Options for an aggregate exercise price of $230,609,946,
(ii) 15,056 shares of Company Common Stock are subject to issuance pursuant to
outstanding Company Warrants; and (iii) 577,223 shares of Company Common Stock
are reserved for future issuance under the Company ESPP. Part 2.2(b) of the
Company Disclosure Letter sets forth the following information with respect to
each Company Option and each Company Warrant outstanding as of the date of this
Agreement: (i) the name of the optionee or warrant holder; (ii) the number of
shares of Company Common Stock subject to such Company Option or Company
Warrant; (iii) the exercise price of such Company Option or Company Warrant;
(iv) the date on which such Company Option or Company Warrant was granted or
assumed; (v) the date on which such Company Option or Company Warrant expires
and (vi) whether the exercisability of such Company Option or Company Warrant
will be accelerated in any way by the transactions contemplated by this
Agreement, and indicates the extent of any such acceleration. Company has
delivered to Parent an accurate and complete copy of the Company Option Plans
and the form of all stock option agreements evidencing Company Options and an
accurate and complete copy of each Company Warrant. All shares of Company Common
Stock subject to issuance as aforesaid, upon issuance on the terms and
conditions specified in the instruments pursuant to which they are issuable,
will be duly authorized, validly issued, fully paid and nonassessable. Except as
set forth in Part 2.2(b) of the Company Disclosure Letter, there are no
commitments or agreements of any character to which Company is bound which
provides for the acceleration of the vesting of any Company Option as a result
of the Merger or the other transactions contemplated by this Agreement or the
occurrence of any subsequent event (such as the termination of employment of the
option holder following consummation of the Merger).
(c) All outstanding shares of Company Common Stock, all
outstanding Company Options, all outstanding Company Warrants and all
outstanding shares of capital stock of each subsidiary of Company have been
issued and granted in compliance with (i) all applicable securities laws and
other applicable material Legal Requirements and (ii) all material
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<PAGE> 15
requirements set forth in applicable agreements or instruments. For the purposes
of this Agreement, "LEGAL REQUIREMENTS" means any federal, state, local,
municipal, foreign or other law, statute, constitution, principle of common law,
resolution, ordinance, code, edict, decree, rule, regulation, ruling or
requirement issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any court, administrative agency or
commission or other governmental authority or instrumentality, foreign or
domestic (each, a "GOVERNMENTAL ENTITY").
2.3 Obligations With Respect to Capital Stock. Except as set forth in
Part 2.2 or Part 2.3 of the Company Disclosure Letter, there are no equity
securities, partnership interests or similar ownership interests of any class of
Company equity security, or any securities exchangeable or convertible into or
exercisable for such equity securities, partnership interests or similar
ownership interests, issued, reserved for issuance or outstanding. Except for
securities Company owns free and clear of all claims and Encumbrances, directly
or indirectly through one or more subsidiaries, and except for shares of capital
stock or other similar ownership interests of certain subsidiaries of Company
that are owned by certain nominee equity holders as required by the applicable
law of the jurisdiction of organization of such subsidiaries, as of the date of
this Agreement, there are no equity securities, partnership interests or similar
ownership interests of any class of equity security of any subsidiary of
Company, or any security exchangeable or convertible into or exercisable for
such equity securities, partnership interests or similar ownership interests,
issued, reserved for issuance or outstanding. Except as set forth in Part 2.2 or
Part 2.3 of the Company Disclosure Letter, there are no subscriptions, options,
warrants, equity securities, convertible debt, partnership interests or similar
ownership interests, calls, rights (including preemptive rights), commitments or
agreements of any character to which Company or any of its subsidiaries is a
party or by which it is bound obligating Company or any of its subsidiaries to
issue, deliver or sell, or cause to be issued, delivered or sold, or repurchase,
redeem or otherwise acquire, or cause the repurchase, redemption or acquisition
of, any shares of capital stock, partnership interests or similar ownership
interests of Company or any of its subsidiaries or obligating Company or any of
its subsidiaries to grant, extend, accelerate the vesting of or enter into any
such subscription, option, warrant, equity security, call, right, commitment or
agreement. Except as set forth in Part 2.3 of the Company Disclosure Letter or
as contemplated by this Agreement, the Stock Option Agreement and the Rights
Agreement, there are no registration rights, and there is no voting trust,
proxy, rights agreement, "poison pill" anti-takeover plan or other agreement or
understanding to which Company is a party or by which it is bound with respect
to any equity security of any class of Company or with respect to any equity
security, partnership interest or similar ownership interest of any class of any
of its subsidiaries. Stockholders of Company will not be entitled to dissenters'
or appraisal rights under applicable state law in connection with the Merger.
For purposes of this Agreement, "ENCUMBRANCES" means any lien,
pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim,
infringement, interference, option, right of first refusal, preemptive right,
community property interest or restriction of any nature (including any
restriction on the voting of any security, any restriction on the transfer of
any security (other than restrictions on transfer under applicable securities
laws) or other asset, any restriction on the receipt of any income derived from
any asset, any restriction on the use of any asset and any restriction on the
possession, exercise or transfer of
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<PAGE> 16
any other attribute of ownership of any asset), but excluding liens for Taxes
not yet due and payable and such encumbrances, if any, which are not material in
character, amount or extent.
2.4 Authority; Non-Contravention.
(a) Company has all requisite corporate power and authority
to enter into this Agreement and the Stock Option Agreement and to consummate
the transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and the Stock Option Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Company, subject only to the approval
and adoption of this Agreement and the approval of the Merger by Company's
stockholders (the "COMPANY STOCKHOLDER APPROVALS") and the filing of the
Certificate of Merger pursuant to Delaware Law. The affirmative vote of the
holders of a majority of the outstanding shares of Company Common Stock is
sufficient for Company's stockholders to approve and adopt this Agreement and
approve the Merger, and no other approval of any holder of any securities of
Company is required in connection with the consummation of the transactions
contemplated hereby. This Agreement and the Stock Option Agreement have each
been duly executed and delivered by Company and, assuming the due execution and
delivery by Parent and Merger Sub, constitute the valid and binding obligations
of Company, enforceable against Company in accordance with their terms, except
as enforceability may be limited by bankruptcy and other similar laws affecting
the rights of creditors generally and general principles of equity.
(b) The execution and delivery of this Agreement and the
Stock Option Agreement by Company does not, and the performance of this
Agreement and the Stock Option Agreement by Company will not, (i) conflict with
or violate the Company Charter Documents, (ii) subject to obtaining the Company
Stockholder Approvals and compliance with the requirements set forth in Section
2.4(c), conflict with or violate any material law, rule, regulation, order,
judgment or decree applicable to Company or any of its subsidiaries or by which
Company or any of its subsidiaries or any of their respective material
properties is bound or affected, or (iii) except as set forth in Part 2.4(b) of
the Company Disclosure Letter, result in any material breach of or constitute a
material default (or an event that with notice or lapse of time or both would
become a material default) under, or impair Company's (or a subsidiary's) rights
or alter the rights or obligations of any third party under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of an Encumbrance on any of the material properties or assets of
Company or any of its subsidiaries pursuant to, any material note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise,
concession, or other instrument or obligation to which Company or any of its
subsidiaries is a party or by which Company or any of its subsidiaries or its or
any of their respective material properties are bound or affected. Part 2.4(b)
of the Company Disclosure Letter list all consents, waivers and approvals under
any of Company's or any of its subsidiaries' agreements, contracts, licenses or
leases required to be obtained in connection with the consummation of the
transactions contemplated hereby, which, if individually or in the aggregate
were not obtained, would result in a material loss of benefits to Company,
Parent or the Surviving Corporation as a result of the Merger.
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<PAGE> 17
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with any Governmental Entity or other
person, is required to be obtained or made by Company in connection with the
execution and delivery of this Agreement and the Stock Option Agreement or the
consummation of the Merger, except for (i) the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware and appropriate
documents with the relevant authorities of other states in which Company is
qualified to do business, (ii) the filing of the Proxy Statement/Prospectus (as
defined in Section 2.17) with the Securities and Exchange Commission ("SEC") in
accordance with the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") and the effectiveness of the Registration Statement (as defined in Section
2.17), (iii) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable federal, foreign
and state securities (or related) laws and the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), and the securities or
antitrust laws of any foreign country, and (iv) such other consents,
authorizations, filings, approvals and registrations which if not obtained or
made would not be material to Company, Parent or the Surviving Corporation or
have a material adverse effect on the ability of the parties hereto to
consummate the Merger.
2.5 SEC Filings; Company Financial Statements.
(a) Company has filed all forms, reports and documents
required to be filed by Company with the SEC since January 22, 1999 and has made
available to Parent such forms, reports and documents in the form filed with the
SEC. All such required forms, reports and documents (including those that
Company may file subsequent to the date hereof) are referred to herein as the
"COMPANY SEC REPORTS." As of their respective dates, the Company SEC Reports (i)
were prepared in accordance with the requirements of the Securities Act of 1933,
as amended (the "SECURITIES ACT"), or the Exchange Act, as the case may be, and
the rules and regulations of the SEC thereunder applicable to such Company SEC
Reports and (ii) did not at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) 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
made, not misleading, except to the extent corrected prior to the date of this
Agreement by a subsequently filed Company SEC Report. None of Company's
subsidiaries is required to file any forms, reports or other documents with the
SEC.
(b) Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the Company
SEC Reports (the "COMPANY FINANCIALS"), including each Company SEC Report filed
after the date hereof until the Closing, (i) complied as to form in all material
respects with the published rules and regulations of the SEC with respect
thereto, (ii) was prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes thereto
or, in the case of unaudited interim financial statements, as may be permitted
by the SEC on Form 10-Q, 8-K or any successor form under the Exchange Act) and
(iii) fairly presented the consolidated financial position of Company and its
subsidiaries as at the respective dates thereof and the consolidated results of
Company's operations and cash flows for the periods indicated, except that the
unaudited interim financial statements may not contain footnotes and were or are
subject to normal and recurring year-end adjustments. The balance sheet of
Company contained in
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<PAGE> 18
Company SEC Reports as of September 30, 2000 is hereinafter referred to as the
"COMPANY BALANCE SHEET." Except as disclosed in the Company Financials, since
the date of the Company Balance Sheet, neither Company nor any of its
subsidiaries has any liabilities (absolute, accrued, contingent or otherwise)
required under GAAP to be set forth on a balance sheet which are, individually
or in the aggregate, material to the business, results of operations or
financial condition of Company and its subsidiaries taken as a whole, except for
liabilities incurred since the date of the Company Balance Sheet in the ordinary
course of business consistent with past practices and liabilities incurred in
connection with this Agreement.
(c) Company has heretofore furnished to Parent a complete
and correct copy of any amendments or modifications, which have not yet been
filed with the SEC but which are required to be filed, to agreements, documents
or other instruments which previously had been filed by Company with the SEC
pursuant to the Securities Act or the Exchange Act.
2.6 Absence of Certain Changes or Events. Except as set forth in Part
2.6 of the Company Disclosure Letter or as disclosed in Company SEC Reports,
since the date of the Company Balance Sheet there has not been: (i) any Material
Adverse Effect (as defined in Section 8.3)) with respect to Company, (ii) any
declaration, setting aside or payment of any dividend on, or other distribution
(whether in cash, stock or property) in respect of, any of Company's or any of
its subsidiaries' capital stock, or any purchase, redemption or other
acquisition by Company of any of Company's capital stock or any other securities
of Company or its subsidiaries or any grant or issuance of any options,
warrants, calls or rights to acquire any such shares or other securities except
for repurchases from employees following their termination pursuant to the terms
of their pre-existing stock option or purchase agreements, (iii) any split,
combination or reclassification of any of Company's or any of its subsidiaries'
capital stock, (iv) any granting by Company or any of its subsidiaries of any
increase in compensation or fringe benefits to any of their officers or
employees (other than increases for employees in the ordinary course of business
consistent with past practice), or any payment by Company or any of its
subsidiaries of any bonus to any of their officers or employees, or any granting
by Company or any of its subsidiaries of any increase in severance or
termination pay or any entry by Company or any of its subsidiaries into, or
material modification or amendment of, any currently effective employment,
severance, termination or indemnification agreement or any agreement the
benefits of which are contingent or the terms of which are materially altered
upon the occurrence of a transaction involving Company of the nature
contemplated hereby or any acceleration or release of any vesting condition to
the right to exercise any option, warrant or other right to purchase or
otherwise acquire any shares of Company's capital stock or any acceleration or
release of any right to repurchase shares of Company's capital stock upon the
termination of employment or services with Company, (v) any material change or
alteration in the policy of Company relating to the granting of stock options or
other equity compensation to its employees and consultants, (vi) entry by
Company or any of its subsidiaries into, or material modification, amendment or
cancellation of, any development services, licensing, distribution, sales, sales
services or other similar agreement with respect to any material Intellectual
Property (as defined in Section 2.9) other than in the ordinary course of
business consistent with past practices, (vii) any acquisition, sale or transfer
of any material asset by Company or any of its subsidiaries other than in the
ordinary course of business, (viii) any material change by Company in its
accounting methods, principles or practices, except as required by concurrent
changes in
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<PAGE> 19
GAAP, or (ix) any material revaluation by Company of any of its assets,
including writing off notes or accounts receivable other than in the ordinary
course of business.
2.7 Taxes.
(a) Company and each of its subsidiaries have timely filed
all federal, state, local and foreign returns, estimates, information statements
and reports ("RETURNS") relating to Taxes required to be filed by or on behalf
of Company and each of its subsidiaries with any Tax authority, except such
Returns which are not material to Company; such Returns are true, correct and
complete in all material respects; and Company and each of its subsidiaries have
paid all Taxes shown to be due on such Returns.
(b) Except as is not material to Company, Company and each
of its subsidiaries have withheld all federal and state income taxes, Taxes
pursuant to the Federal Insurance Contribution Act ("FICA"), Taxes pursuant to
the Federal Unemployment Tax Act ("FUTA") and other Taxes required to be
withheld.
(c) Neither Company nor any of its subsidiaries has been
delinquent in the payment of any material Tax nor is there any material Tax
deficiency outstanding, proposed or assessed against Company or any of its
subsidiaries, nor has Company or any of its subsidiaries executed any unexpired
waiver of any statute of limitations on or extending the period for the
assessment or collection of any Tax.
(d) Except as is not material to Company, no audit or other
examination of any Return of Company or any of its subsidiaries by any Tax
authority is presently in progress, nor has Company or any of its subsidiaries
been notified of any request for such an audit or other examination.
(e) Except as is not material to Company, no adjustment
relating to any Returns filed by Company or any of its subsidiaries has been
proposed in writing formally or informally by any Tax authority to Company or
any of its subsidiaries or any representative thereof.
(f) Neither Company nor any of its subsidiaries has any
liability for unpaid Taxes which has not been accrued for or reserved on the
Company Balance Sheet in accordance with GAAP, whether asserted or unasserted,
contingent or otherwise, which is material to Company, other than any liability
for unpaid Taxes that may have accrued since the date of the Company Balance
Sheet in connection with the operation of the business of Company and its
subsidiaries in the ordinary course.
(g) Except as provided in Section 422 of the Code, there is
no contract, agreement, plan or arrangement to which Company or any of its
subsidiaries is a party, including this Agreement and the agreements entered
into in connection with this Agreement, covering any employee or former employee
of Company or any of its subsidiaries that, individually or collectively, would
be reasonably likely to give rise to the payment of any amount that would not be
fully deductible at or prior to the time of payment or exercise pursuant to
Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan
or arrangement to which Company
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<PAGE> 20
is a party or by which it is bound to compensate any individual for excise taxes
paid pursuant to Section 4999 of the Code.
(h) Neither Company nor any of its subsidiaries has filed
any consent agreement under Section 341(f) of the Code or agreed to have Section
341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as
defined in Section 341(f)(4) of the Code) owned by Company.
(i) None of Company and its subsidiaries (A) has been a
member of an affiliated group filing a consolidated federal income tax Return
(other than a group the common parent of which was Company) or (B) has any
liability for the Taxes of any person (other than any of Company and its
subsidiaries) under Reg. Section 1.1502-6 (or any similar provision of state,
local, or foreign law), as a transferee or successor, by contract, or otherwise.
(j) Except as may be required as a result of the Merger,
Company and its subsidiaries have not been and will not be required to include
any adjustment in Taxable income for any Tax period (or portion thereof)
pursuant to Section 481 of the Code or any comparable provision under state or
foreign Tax laws as a result of transactions, events or accounting methods
employed prior to the Closing.
(k) None of Company's or its subsidiaries' assets are tax
exempt use property within the meaning of Section 168(h) of the Code.
(l) Company has not been distributed in a transaction
qualifying under Section 355 of the Code within the last two years, nor has
Company distributed any corporation in a transaction qualifying under Section
355 of the Code within the last two years.
(m) To Company's knowledge, there is no fact or
circumstance, and Company has no present plan or intention to take any action,
that would be reasonably likely to prevent the Merger from qualifying as a
"reorganization" pursuant to the provisions of Section 368 of the Code.
(n) Company has delivered to Parent or its legal or
accounting representatives, copies of all foreign, federal and state income tax
and all state sales and use tax Returns filed for Company and each of its
subsidiaries and each of Company's and its subsidiaries' predecessor entities,
if any, for all periods since December 31, 1995.
For the purposes of this Agreement, "TAX" or "TAXES" refers
to any and all federal, state, local and foreign taxes, assessments and other
governmental charges, duties, impositions and liabilities relating to taxes,
including taxes based upon or measured by gross receipts, income, profits,
sales, use and occupation, and value added, ad valorem, transfer, franchise,
withholding, payroll, recapture, employment, excise and property taxes, together
with all interest, penalties and additions imposed with respect to such amounts.
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<PAGE> 21
2.8 Title to Properties.
(a) Neither Company nor any of its subsidiaries owns any
interest in real property, other than the Material Leases listed in Part 2.8 of
the Company Disclosure Letter. Part 2.8 of the Company Disclosure Letter list
all real property leases to which Company is a party that require Company to
make annual lease payments in excess of $50,000 and each amendment thereto that
is in effect as of the date of this Agreement. All Material Leases are in full
force and effect, are valid and effective in accordance with their respective
terms, and there is not, under any of such leases, any existing default or event
of default (or event which with notice or lapse of time, or both, would
constitute a default) that would give rise to a claim against Company in excess
of $50,000.
(b) Company has good and valid title to, or, in the case of
leased properties and assets, valid leasehold interests in, all of its tangible
properties and assets, real, personal and mixed, used or held for use in its
business, free and clear of any Encumbrances, except as reflected in the Company
Financials. Each of Company's subsidiaries has good and valid title to, or, in
the case of leased properties and assets, valid leasehold interests in, all of
its tangible properties and assets, real, personal and mixed, used or held for
use in its business, free and clear of any Encumbrances, except as reflected in
the Company Financials.
2.9 Intellectual Property. For the purposes of this Agreement, the
following terms have the following definitions:
"INTELLECTUAL PROPERTY" shall mean any or all of the
following and all rights in, arising out of, or associated therewith: (i) all
United States, international and foreign patents and applications therefor and
all reissues, divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
invention disclosures, improvements, trade secrets, proprietary information,
know how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing; (iii) all copyrights, copyrights
registrations, mask works and applications therefor, and all other rights
corresponding thereto throughout the world; (iv) all industrial designs and any
registrations and applications therefor throughout the world; (v) all trade
names, URLs, logos, common law trademarks and service marks, trademark and
service mark registrations and applications therefor throughout the world; (vi)
all databases and data collections and all rights therein throughout the world;
(vii) all moral and economic rights of authors and inventors, however
denominated, throughout the world, and (viii) all similar or equivalent rights
to any of the foregoing anywhere in the world.
"COMPANY INTELLECTUAL PROPERTY" shall mean any Intellectual
Property that is owned by, or exclusively licensed to, Company or one of its
subsidiaries.
"REGISTERED INTELLECTUAL PROPERTY" means all United States,
international and foreign: (i) patents; (ii) registered trademarks, service
marks or other registrations related to trademarks or service marks; and (iii)
registered copyrights and mask works.
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<PAGE> 22
"COMPANY REGISTERED INTELLECTUAL PROPERTY" means all of the
Registered Intellectual Property owned by, or filed in the name of, Company or
one of its subsidiaries.
(a) Except as set forth in Part 2.9(a) of the Company
Disclosure Letter, no material Company Intellectual Property or product or
service of Company or any of its subsidiaries is subject to any proceeding or
outstanding decree, order, judgment, agreement or stipulation restricting in any
manner the use, transfer or licensing thereof by Company, or which may affect
the validity, use or enforceability of such Company Intellectual Property.
(b) Each material item of Company Registered Intellectual
Property is valid and subsisting, all necessary registration, maintenance and
renewal fees currently due in connection with such Registered Intellectual
Property have been made and all necessary documents, recordations and
certificates in connection with such Registered Intellectual Property have been
filed with the relevant patent, copyright, trademark or other authorities in the
United States, international or foreign jurisdictions, as the case may be, for
the purposes of maintaining such Registered Intellectual Property.
(c) Company or one of its subsidiaries owns and has good
and exclusive title to, or has license (sufficient for the conduct of its
business as currently conducted and as proposed by Company and its subsidiaries
to be conducted) to, each material item of Company Intellectual Property free
and clear of any Encumbrance (excluding licenses and related restrictions); and
Company or one of its subsidiaries is the exclusive owner of all trademarks and
trade names used in connection with the operation or conduct of the business of
Company and its subsidiaries, including the sale of any products or the
provision of any services by Company and its subsidiaries.
(d) Company or one of its subsidiaries owns exclusively,
and has good title to, all copyrighted works that are Company products or which
Company otherwise expressly purports to own.
(e) To the extent that any material Intellectual Property
has been developed or created by a third party for Company or any of its
subsidiaries, Company or its subsidiaries, as the case may be, has a written
agreement with such third party with respect thereto and Company or its
subsidiary thereby either (i) has obtained ownership of and is the exclusive
owner of, or (ii) has obtained a written license (sufficient for the conduct of
its business as currently conducted and as proposed by Company and its
subsidiaries to be conducted) to all such third party's Intellectual Property in
such work, material or invention by operation of law or by valid assignment, to
the full extent it is legally possible to do so.
(f) Neither Company nor any of its subsidiaries has
transferred ownership of, or granted any exclusive license with respect to, any
Intellectual Property that is or was material Company Intellectual Property, to
any third party.
(g) Part 2.9(g) of the Company Disclosure Letter lists all
material contracts, licenses and agreements to which Company or any of its
subsidiaries is a party (i) with respect to Company Intellectual Property
licensed or transferred to any third party (other than agreements
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<PAGE> 23
entered into in the ordinary course consistent with past practice); or (ii)
pursuant to which a third party has licensed or transferred any material
Intellectual Property to Company or one of its subsidiaries.
(h) The operation of the business of Company and its
subsidiaries as such business currently is conducted, including Company's
design, development, marketing and sale of the products or services of Company
(including with respect to products currently under development) (i) has not,
does not and will not infringe or misappropriate (A) to Company's knowledge, any
patent of any third party, or (B) any other Intellectual Property of any third
party or (ii) to Company's knowledge, constitute unfair competition or trade
practices under the laws of any jurisdiction.
(i) Except as set forth in Part 2.9(i) of the Company
Disclosure Letter, Company has not received written, or to the knowledge of
Company, non-written notice from any third party that the operation of the
business of Company or of any of its subsidiaries or any act, product or service
of Company or of any of its subsidiaries, infringes or misappropriates the
Intellectual Property of any third party or constitutes unfair competition or
trade practices under the laws of any jurisdiction.
(j) To the knowledge of Company, no person has or is
materially infringing or misappropriating any material Company Intellectual
Property.
(k) Company and its subsidiaries have taken reasonable
steps to protect Company's and its subsidiaries' rights in Company's and such
subsidiaries' confidential information and trade secrets that they wish to
protect or any trade secrets or confidential information of third parties
provided to Company or such subsidiaries, and, without limiting the foregoing,
Company and its subsidiaries have and enforce a policy requiring each employee
and each contractor who has access to material, nonpublic Company Intellectual
Property to execute a proprietary information and confidentiality agreement
substantially in the form provided to Parent, and all current and former
employees and such contractors of Company and its subsidiaries have executed
such an agreement. Other than source code provided under "open source"
arrangements or escrow or other agreements, in each case, described in Part
2.9(k) of the Company Disclosure Letter, Company has not provided source code to
any Company Intellectual Property to any third party.
(l) No of the Company Intellectual Property nor any product
or service of Company contains any defect in connection with processing data
containing dates in leap years or in the year 2000 or any preceding or following
years, nor has Company received any written, or to Company's knowledge,
non-written allegation from any person that has been licensed to use any of
Company's or any of its subsidiaries' software products of such a processing
defect.
(m) All material contracts, licenses and agreements
relating to Company's Intellectual Property are in full force and effect. Except
as set forth in Part 2.9(m) of the Company Disclosure Letter, the consummation
of the transactions contemplated by this Agreement will neither violate nor
result in the breach, modification, cancellation, termination, or suspension of
such contracts, licenses and agreements. Except as set forth in Part 2.9(m) of
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<PAGE> 24
the Company Disclosure Letter, Company and each of its subsidiaries are in
material compliance with, and have not materially breached any term of any of
such contracts, licenses and agreements and, to the knowledge of Company and its
subsidiaries, all other parties to such contracts, licenses and agreements are
in compliance in all material respects with, and have not materially breached
any term of, such contracts, licenses and agreements. Assuming Company has
obtained prior to the Closing Date the third party consents set forth in Part
2.9(m) of the Company Disclosure Letter, following the Closing Date, the
Surviving Corporation will be permitted to exercise all of Company's rights
under such contracts, licenses and agreements to the same extent Company would
have been able to had the transactions contemplated by this Agreement not
occurred and without the payment of any additional amounts or consideration
other than ongoing fees, royalties or payments which Company would otherwise be
required to pay.
2.10 Compliance with Laws.
(a) Neither Company nor any of its subsidiaries is in
conflict with, or in default or violation of (i) any law, rule, regulation,
order, judgment or decree applicable to Company or any of its subsidiaries or by
which Company or any of its subsidiaries or any of their respective properties
is bound or affected, or (ii) any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Company or any of its subsidiaries is a party or by which Company or
any of its subsidiaries or its or any of their respective properties is bound or
affected, except for conflicts, violations and defaults that, individually or in
the aggregate, would not cause Company to lose any material benefit or incur any
material liability. Except as set forth in Part 2.10(a) of the Company
Disclosure Letter, no investigation or review by any Governmental Entity is
pending or, to Company's knowledge, has been threatened in a writing delivered
to Company against Company or any of its subsidiaries, nor, to Company's
knowledge, has any Governmental Entity indicated an intention to conduct an
investigation of Company or any of its subsidiaries. There is no agreement,
judgment, injunction, order or decree binding upon Company or any of its
subsidiaries which has or could reasonably be expected to have the effect of
prohibiting or materially impairing any business practice of Company or any of
its subsidiaries, any acquisition of material property by Company or any of its
subsidiaries or the conduct of business by Company and its subsidiaries as
currently conducted.
(b) Company and its subsidiaries hold all permits,
licenses, variances, exemptions, orders and approvals from Governmental Entities
that are material to and required for the operation of the business of Company
and of its subsidiaries as currently conducted (collectively, the "COMPANY
PERMITS"). Company and its subsidiaries are in compliance, in all material
respects, with the terms of the Company Permits.
2.11 Litigation. Except as set forth in Part 2.11 of the Company
Disclosure Letter, there are no claims, suits, actions or proceedings pending
or, to the knowledge of Company, threatened against, relating to or affecting
Company or any of its subsidiaries, before any Governmental Entity or any
arbitrator that seeks to restrain or enjoin the consummation of the transactions
contemplated by this Agreement or which could reasonably be expected, either
singularly or in the aggregate with all such claims, actions or proceedings, to
be material to
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Company, any of its subsidiaries or the Surviving Corporation following the
Merger or have a material adverse effect on the ability of the parties hereto to
consummate the Merger. No Governmental Entity has at any time challenged or
questioned in a writing delivered to Company the legal right of Company or any
of its subsidiaries to design, offer or sell any of its products or services in
the present manner or style thereof or otherwise to conduct its business as
currently conducted. Except as set forth in Part 2.11 of the Company Disclosure
Letter, as of the date hereof, to the knowledge of Company, no event has
occurred, and no claim, dispute or other condition or circumstance exists, that
will, or that would reasonably be expected to, cause or provide a bona fide
basis for a director or executive officer of Company or of any of its
subsidiaries to seek indemnification from Company.
2.12 Employee Benefit Plans.
(a) Definitions. With the exception of the definition of
"Affiliate" set forth in Section 2.12(a)(i) below (which definition shall apply
only to this Section 2.12), for purposes of this Agreement, the following terms
shall have the meanings set forth below:
(i) "AFFILIATE" shall mean any other person or
entity under common control with Company within the meaning of Sections 414(b),
(c), (m) or (o) of the Code and the regulations issued thereunder;
(ii) "COMPANY EMPLOYEE PLAN" shall mean any plan,
program, policy, practice, contract, agreement or other arrangement providing
for compensation, severance, termination pay, performance awards, stock or
stock-related awards, fringe benefits or other employee benefits or remuneration
of any kind, whether written or unwritten or otherwise, funded or unfunded,
including without limitation, each "employee benefit plan" within the meaning of
Section 3(3) of ERISA which is or has been maintained, contributed to, or
required to be contributed to, by Company or any Affiliate for the benefit of
any Employee;
(iii) "COBRA" shall mean the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended;
(iv) "DOL" shall mean the Department of Labor;
(v) "EMPLOYEE" shall mean any current, former or
retired employee, officer or director of Company or any Affiliate;
(vi) "EMPLOYEE AGREEMENT" shall mean each
management, employment, severance, consulting, relocation, repatriation,
expatriation, visas, work permit or similar agreement or contract between
Company or any Affiliate and any Employee or consultant;
(vii) "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended;
(viii) "FMLA" shall mean the Family Medical Leave
Act of 1993, as amended;
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(ix) "INTERNATIONAL EMPLOYEE PLAN" shall mean
each Company Employee Plan that has been adopted or maintained by Company,
whether informally or formally, for the benefit of Employees outside the United
States;
(x) "IRS" shall mean the Internal Revenue
Service;
(xi) "MULTIEMPLOYER PLAN" shall mean any "PENSION
PLAN" (as defined below) which is a "multiemployer plan," as defined in Section
3(37) of ERISA;
(xii) "PBGC" shall mean the Pension Benefit
Guaranty Corporation; and
(xiii) "PENSION PLAN" shall mean each Company
Employee Plan which is an "employee pension benefit plan," within the meaning of
Section 3(2) of ERISA.
(b) Schedule. Part 2.12(b) of the Company Disclosure Letter
contain an accurate and complete list of each Company Employee Plan and each
Employee Agreement. Company does not have any plan or commitment to establish
any new Company Employee Plan, to modify any Company Employee Plan or Employee
Agreement (except to the extent required by law or to conform any such Company
Employee Plan or Employee Agreement to the requirements of any applicable law,
in each case as previously disclosed to Parent in writing, or as required by
this Agreement), or to enter into any Company Employee Plan or Employee
Agreement, nor does it have any intention or commitment to do any of the
foregoing.
(c) Documents. Company has provided to Parent: (i) accurate
and complete copies of all documents embodying each Company Employee Plan and
each Employee Agreement including all amendments thereto and written
interpretations thereof; (ii) the most recent annual actuarial valuations, if
any, prepared for each Company Employee Plan; (iii) the three most recent annual
reports (Form Series 5500 and all schedules and financial statements attached
thereto), if any, required under ERISA or the Code in connection with each
Company Employee Plan or related trust; (iv) if the Company Employee Plan is
funded, the most recent annual and periodic accounting of Company Employee Plan
assets; (v) the most recent summary plan description together with the summary
of material modifications thereto, if any, required under ERISA with respect to
each Company Employee Plan; (vi) all IRS determination, opinion, notification
and advisory letters, and rulings relating to Company Employee Plans and copies
of all applications and correspondence to or from the IRS or the DOL with
respect to any Company Employee Plan; (vii) all material written agreements and
contracts relating to each Company Employee Plan, including, but not limited to,
administrative service agreements, group annuity contracts and group insurance
contracts; (viii) all communications material to any Employee or Employees
relating to any Company Employee Plan and any proposed Company Employee Plans,
in each case, relating to any amendments, terminations, establishments,
increases or decreases in benefits, acceleration of payments or vesting
schedules or other events which would result in any material liability to
Company; (ix) all COBRA forms and related notices; (x) all registration
statements and prospectuses prepared in connection with each Company Employee
Plan; and (xi) a list of all employees, officers and consultants of Company
reflecting each such person's current title and/or job description and
compensation.
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<PAGE> 27
(d) Employee Plan Compliance. (i) Company has performed in
all material respects all obligations required to be performed by it under, is
not in default or violation of, and has no knowledge of any default or violation
by any other party to, each Company Employee Plan and/or Employee Agreement, and
each Company Employee Plan has been established and maintained in all material
respects in accordance with its terms and in compliance with all applicable
laws, statutes, orders, rules and regulations, including but not limited to
ERISA or the Code; (ii) each Company Employee Plan intended to qualify under
Section 401(a) of the Code and each trust intended to qualify under Section
501(a) of the Code has either received a favorable determination letter from the
IRS with respect to each such Plan as to its qualified status under the Code or
has remaining a period of time under applicable Treasury regulations or IRS
pronouncements in which to apply for such a determination letter and make any
amendments necessary to obtain a favorable determination and no event has
occurred which would adversely affect the status of such determination letter or
the qualified status of such Plan; (iii) no "prohibited transaction," within the
meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not
otherwise exempt under Section 408 of ERISA, has occurred with respect to any
Company Employee Plan; (iv) there are no actions, suits or claims pending, or,
to the knowledge of Company, threatened or reasonably anticipated (other than
routine claims for benefits) against any Company Employee Plan or against the
assets of any Company Employee Plan; (v) each Company Employee Plan can be
amended, terminated or otherwise discontinued either before or after the
Effective Time in accordance with its terms, without liability to Parent,
Company or any of its Affiliates (other than ordinary administration expenses
typically incurred in a termination event); (vi) there are no audits, inquiries
or proceedings pending or, to the knowledge of Company, threatened by the IRS or
DOL with respect to any Company Employee Plan; (vii) neither Company nor any
Affiliate is subject to any penalty or tax with respect to any Company Employee
Plan under Section 402(i) of ERISA or Sections 4975 through 4980 of the Code;
and (viii) all contributions due from Company or any Affiliate with respect to
any of the Company Employee Plans have been made as required under ERISA or have
been accrued on the Company Balance Sheet and no further contributions will be
due or will have accrued thereunder as of the Closing Date; (ix) to Company's
knowledge, all individuals who, pursuant to the terms of any Employee Plan or
Employee Agreement, are entitled to participate in any such Employee Plan or
Employee Agreement are currently participating in such Employee Plan or Employee
Agreement, or have been given the opportunity to do so and have declined; (x)
there has been no amendment to, written interpretation or authorized
announcement (whether or not written) by Company relating to, or change in
employee participation or coverage under, any Employee Plan or Employee
Agreement that would increase materially the expense of maintaining such
Employee Plan or Employee Agreement above the level of the expense incurred in
respect thereof during the calendar year 1999.
(e) Pension Plans. Company does not now, nor has it ever,
maintained, established, sponsored, participated in, or contributed to, any
Pension Plan which is subject to Title IV of ERISA or Section 412 of the Code.
(f) Multiemployer Plans. At no time has Company contributed
to or been requested to contribute to any Multiemployer Plan.
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(g) No Post-Employment Obligations. No Company Employee
Plan provides, or has any liability to provide, retiree life insurance, retiree
health or other retiree employee welfare benefits to any person for any reason,
except as may be required by COBRA or other applicable statute, and Company has
never represented, promised or contracted (whether in oral or written form) to
any Employee (either individually or to Employees as a group) or any other
person that such Employee(s) or other person would be provided with retiree life
insurance, retiree health or other retiree employee welfare benefit, except to
the extent required by statute.
(h) COBRA; FMLA. Neither Company nor any Affiliate has,
prior to the Effective Time, and in any material respect, violated any of the
health care continuation requirements of COBRA, the requirements of FMLA or any
similar provisions of state law applicable to its Employees. The group health
plans (as defined in Section 4980B(g) of the Code) that benefit employees of
Company are in compliance, in all material respects, with the continuation
coverage requirements of Section 4980B of the Code and Sections 601 through 608
of ERISA, the Americans with Disabilities Act of 1990, as amended and the FMLA,
and the regulations thereunder, as such requirements affect Company and its
employees. As of the Closing Date, there will be no material outstanding,
uncorrected violations under COBRA, with respect to any of the Employee Plans or
Employee Agreements, covered employees or qualified beneficiaries.
(i) Effect of Transaction. The execution of this Agreement
and the consummation of the transactions contemplated hereby will not (either
alone or upon the occurrence of any additional or subsequent events) constitute
an event under any Company Employee Plan, Employee Agreement, trust or loan that
will or may result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any Employee. No payment
or benefit which will or may be made by Company or its Affiliates with respect
to any Employee as a result of the transactions contemplated by this Agreement
will be characterized as an "excess parachute payment," within the meaning of
Section 280G(b)(1) of the Code or will be treated as a nondeductible expense
within the meaning of Section 162 of the Code.
(j) Employment Matters. Company and each of its
subsidiaries: (i) is in compliance in all material respects with all applicable
foreign, federal, state and local laws, rules and regulations respecting
employment, employment practices, immigration, terms and conditions of
employment and wages and hours, in each case, with respect to Employees; (ii)
has withheld all amounts required by law or by agreement to be withheld from the
wages, salaries and other payments to Employees; (iii) has properly classified
independent contractors for purposes of federal and applicable state tax laws,
laws applicable to employee benefits and other applicable laws; (iv) is not
liable in any material amounts for any arrears of wages or any taxes or any
penalty for failure to comply with any of the foregoing; and (v) is not liable
for any material payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation benefits,
social security or other benefits or obligations for Employees (other than
routine payments to be made in the normal course of business and consistent with
past practice). There are no pending, or, to Company's knowledge, threatened or
reasonably anticipated claims or actions against Company under any workers
compensation policy or long-term disability policy. To Company's knowledge, no
Employee of
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<PAGE> 29
Company has violated any employment contract, nondisclosure agreement or
noncompetition agreement by which such Employee is bound due to such Employee
being employed by Company and disclosing to Company or using trade secrets or
proprietary information of any other person or entity. All United States-based
employees of Company are legally permitted to be employed by Company in the
United States of America in their current jobs. There are no controversies
pending or, to Company's knowledge threatened, between Company and any
subsidiary and any of their employees that would be reasonably likely to result
in Company's incurring material liability. Except as set forth in Part 2.12(j)
of the Company Disclosure Letter, Company does not have any employment
contracts, Employee Agreements, or consulting agreements currently in effect
that are not terminable at will (other than agreements for the sole purpose of
providing for the confidentiality of proprietary information or assignment of
invention and other than consulting agreements which are not material in
substance or amount). Company will have no liability to any employee or to any
organization or any other entity as a result of the termination of any employee
leasing arrangement.
(k) Labor. No work stoppage or labor strike against Company
is pending, threatened or reasonably anticipated. Company does not know of any
activities or proceedings of any labor union to organize any Employees. There
are no actions, suits, claims, labor disputes or grievances pending, or, to the
knowledge of Company, threatened or reasonably anticipated relating to any
labor, safety or discrimination matters involving any Employee, including
charges of unfair labor practices or discrimination complaints, which, if
adversely determined, would, individually or in the aggregate, result in any
material liability to Company. Neither Company nor any of its subsidiaries has
engaged in any unfair labor practices within the meaning of the National Labor
Relations Act. Company is not presently, nor has it been in the past, a party
to, or bound by, any collective bargaining agreement or union contract with
respect to Employees and no collective bargaining agreement is being negotiated
by Company.
(l) International Employee Plan. Each International
Employee Plan has been established, maintained and administered in material
compliance with its terms and conditions and with the requirements prescribed by
any and all statutory or regulatory laws that are applicable to such
International Employee Plan. Furthermore, no International Employee Plan has
unfunded liabilities, that as of the Effective Time, will not be offset by
insurance or fully accrued on the Company Balance Sheet. Except as required by
law, no condition exists that would prevent Company or Parent from terminating
or amending any International Employee Plan at any time for any reason.
2.13 Environmental Matters.
(a) Hazardous Material. Except as would not result in
material liability to Company, no underground storage tanks and no amount of any
substance that has been designated by any Governmental Entity or by applicable
federal, state or local law to be radioactive, toxic, hazardous or otherwise a
danger to health or the environment, including, without limitation, PCBs,
asbestos, petroleum, urea-formaldehyde and all substances listed as hazardous
substances pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, or defined as a hazardous waste pursuant
to the United States Resource Conservation and Recovery Act of 1976, as amended,
and the regulations
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<PAGE> 30
promulgated pursuant to said laws, but excluding office and janitorial supplies
(a "HAZARDOUS MATERIAL") are present, as a result of the actions of Company or
any of its subsidiaries or any affiliate of Company, or, to Company's knowledge,
as a result of any actions of any third party or otherwise, in, on or under any
property, including the land and the improvements, ground water and surface
water thereof that Company or any of its subsidiaries has at any time owned,
operated, occupied or leased.
(b) Hazardous Materials Activities. Except as would not
result in a material liability to Company (in any individual case or in the
aggregate) (i) neither Company nor any of its subsidiaries has transported,
stored, used, manufactured, disposed of, released or exposed its employees or
others to Hazardous Materials in violation of any law in effect on or before the
Closing Date, and (ii) neither Company nor any of its subsidiaries has disposed
of, transported, sold, used, released, exposed its employees or others to or
manufactured any product containing a Hazardous Material (collectively
"HAZARDOUS MATERIALS ACTIVITIES") in violation of any rule, regulation, treaty
or statute promulgated by any Governmental Entity in effect prior to or as of
the date hereof to prohibit, regulate or control Hazardous Materials or any
Hazardous Material Activity.
(c) Permits. Company and its subsidiaries currently hold
all environmental approvals, permits, licenses, clearances and consents
("ENVIRONMENTAL PERMITS") material to and necessary for the conduct of Company's
and its subsidiaries' Hazardous Material Activities and other businesses of
Company and its subsidiaries as such activities and businesses are currently
being conducted.
(d) Environmental Liabilities. No action, proceeding,
revocation proceeding, amendment procedure, writ or injunction is pending, and
to Company's knowledge, no action, proceeding, revocation proceeding, amendment
procedure, writ or injunction has been threatened by any Governmental Entity
against Company or any of its subsidiaries in a writing delivered to Company
concerning any Environmental Permit of Company, Hazardous Material or any
Hazardous Materials Activity of Company or any of its subsidiaries. Company is
not aware of any fact or circumstance which could involve Company or any of its
subsidiaries in any environmental litigation or impose upon Company any material
environmental liability.
2.14 Certain Agreements. Except as otherwise set forth in the
applicable lettered subsection of Part 2.14 of the Company Disclosure Letter,
neither Company nor any of its subsidiaries is a party to or is bound by:
(a) any employment or consulting agreement or commitment
with any employee or member of Company's Board of Directors, providing any term
of employment or compensation guarantee or any consulting agreement or any
employment agreement that provides severance benefits or other benefits after
the termination of employment of such employee regardless of the reason for such
termination of employment, except as required by applicable law;
(b) any agreement or plan, including any stock option plan,
stock appreciation right plan or stock purchase plan, any of the benefits of
which will be increased, or the vesting of
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benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the benefits
of which will be calculated on the basis of any of the transactions contemplated
by this Agreement;
(c) any agreement of indemnification (other than standard
indemnification agreements in licenses in the form provided to Parent), any
guaranty or any instrument evidencing indebtedness for borrowed money by way of
direct loan, sale of debt securities, purchase money obligation, conditional
sale, or otherwise;
(d) any agreement, obligation or commitment containing
covenants purporting to limit or which effectively limit Company's or any of its
subsidiaries' freedom to compete in any line of business or in any geographic
area or which would so limit Parent, Company or Surviving Corporation or any of
its subsidiaries after the Effective Time or granting any exclusive distribution
or other exclusive rights;
(e) any agreement or commitment currently in force relating
to the disposition or acquisition by Company or any of its subsidiaries after
the date of this Agreement of a material amount of assets not in the ordinary
course of business, or pursuant to which Company has any material ownership or
participation interest in any corporation, partnership, joint venture, strategic
alliance or other business enterprise other than Company's subsidiaries;
(f) any licensing, distribution, resale or other agreement,
contract or commitment with regard to the acquisition, distribution, resale or
licensing of any material Intellectual Property other than licenses,
distribution, resale agreements, advertising agreements, or other similar
agreement entered into in the ordinary course of business consistent with past
practice or disclosed in Part 2.9(f) of the Company Disclosure Letter;
(g) any agreement or commitment with any affiliate of
Company; or
(h) any agreement or commitment currently in force
providing for capital expenditures by Company or its subsidiaries in excess of
$50,000.
Each agreement that is required to be disclosed in the Company
Disclosure Letter pursuant to clauses (a) through (h) above or pursuant to
Section 2.9 and each agreement that is currently in force and required to be
filed with any Company SEC Report shall be referred to herein as a "COMPANY
CONTRACT". Each Company Contract is valid and in full force and effect. Neither
Company nor any of its subsidiaries, nor to Company's knowledge, any other party
thereto, is in material breach, violation or default under, and neither Company
nor any of its subsidiaries has received written notice alleging that it has
materially breached, violated or defaulted under, any of the terms or conditions
of any Company Contract in such a manner as would permit any other party thereto
to cancel or terminate any such Company Contract, or would permit any other
party to seek material damages or other remedies for any or all such alleged
breaches, violations, or defaults.
2.15 Brokers' and Finders' Fees. Except for fees payable to Credit
Suisse First Boston Corporation pursuant to an engagement letter, dated
September 15, 2000, a copy of which has been provided to Parent, Company has not
incurred, nor will it incur, directly or indirectly, any
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<PAGE> 32
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement or any transaction contemplated
hereby.
2.16 Insurance. Company and each of its subsidiaries have policies of
insurance and bonds of the type and in amounts customarily carried by persons
conducting business or owing assets similar to those of Company and its
subsidiaries. Except as set forth in Part 2.16 of the Company Disclosure Letter,
there is no material claim pending under any of such policies or bonds as to
which coverage has been denied or disputed by the underwriters of such policies
or bonds. All premiums due and payable under all such policies have been paid,
and Company and its subsidiaries are otherwise in compliance in all material
respects with the terms of such policies and bonds. Except as set forth in Part
2.16 of the Company Disclosure Letter, to the knowledge of Company, there has
been no threatened termination of, or material premium increase with respect to,
any of such policies. Part 2.16 of the Company Disclosure Letter sets forth a
description of each such policy or bond which provides coverage for Company or
any of its subsidiaries.
2.17 Disclosure. The information supplied by Company for inclusion in
the Form S-4 (or any similar successor form thereto) Registration Statement to
be filed by Parent with the SEC in connection with the issuance of Parent Common
Stock in the Merger (the "REGISTRATION STATEMENT") shall not at the time the
Registration Statement is filed with the SEC and at the time it becomes
effective under the Securities Act contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading. The information supplied by Company
for inclusion or incorporation by reference in the proxy statement/prospectus to
be filed with the SEC as part of the Registration Statement (the "PROXY
STATEMENT/PROSPECTUS") shall not, on the date the Proxy Statement/Prospectus is
mailed to Company's stockholders, at the time of the meeting of Company's
stockholders (the "COMPANY STOCKHOLDERS' MEETING") to consider the Company
Stockholder Approvals or as of the Effective Time, 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 false or misleading; or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the Company
Stockholders' Meeting which has become false or misleading. The Proxy
Statement/Prospectus will comply as to form in all material respects with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
thereunder. If at any time prior to the Effective Time any event relating to
Company or any of its affiliates, officers or directors should be discovered by
Company which is required to be set forth in an amendment to the Registration
Statement or a supplement to the Proxy Statement/Prospectus, Company shall
promptly inform Parent. Notwithstanding the foregoing, Company makes no
representation or warranty with respect to any information supplied by Parent or
Merger Sub which is contained in any of the foregoing documents.
2.18 Board Approval. The Board of Directors of Company has, as of the
date of this Agreement, (i) determined that the Merger and the other
transactions contemplated by this Agreement and the Stock Option Agreement are
fair to, and in the best interests of Company and its stockholders, and has
approved this Agreement and the Stock Option Agreement and
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<PAGE> 33
(ii) declared the advisability of the Merger and recommends that the
stockholders of Company approve and adopt this Agreement and approve the Merger.
2.19 Fairness Opinion. Company's Board of Directors has received a
written opinion from Credit Suisse First Boston Corporation, dated as of the
date hereof, to the effect that, as of the date hereof, the Exchange Ratio is
fair to Company's stockholders from a financial point of view, and has delivered
to Parent a copy of such opinion.
2.20 DGCL Section 203 and Rights Agreement Not Applicable. The Board
of Directors of Company has taken all actions so that (a) the restrictions
contained in Section 203 of the Delaware Law applicable to a "business
combination" (as defined in such Section 203) will not apply to the execution,
delivery or performance of this Agreement, the Stock Option Agreement, the
Voting Agreements or to the consummation of the Merger or the other transactions
contemplated by this Agreement, the Stock Option Agreement and the Voting
Agreements, and (b) the execution, delivery, announcement or performance of this
Agreement, the Option Agreement and the Voting Agreements and the consummation
of the Merger and the other transactions contemplated hereby or thereby will not
cause any change, effect or result under the Rights Agreement which is adverse
to the interests of Parent. Without limiting the generality of the foregoing,
the Rights Agreement has been amended by all necessary action to (i) render the
Rights Agreement inapplicable to the Merger and the other transactions
contemplated by this Agreement, (ii) ensure that (x) none of Parent or its
subsidiaries is an "Acquiring Person" (as defined in the Rights Agreement) by
virtue of the execution, delivery, announcement or performance of this Agreement
or the Stock Option Agreement or the consummation of the Merger or the other
transactions contemplated hereby or thereby and (y) a "Distribution Date" (as
such terms are defined in the Rights Agreement) does not occur by reason of the
execution, delivery, announcement or performance of this Agreement or the Stock
Option Agreement, the consummation of the Merger, or the consummation of the
transactions contemplated hereby or thereby, and such amendment by its terms may
not be further amended by Company without the prior written consent of Parent in
its sole discretion. No other anti-takeover, control share acquisition, fair
price, moratorium or other similar statute (each, a "TAKEOVER STATUTE") applies
or purports to apply to this Agreement, the Merger, the Stock Option Agreement
or the other transactions contemplated hereby or thereby.
2.21 Affiliates. Part 2.21 of the Company Disclosure Letter is a
complete list of those persons who may be deemed to be, in Company's reasonable
judgment, affiliates of Company within the meaning of Rule 145 promulgated under
the Securities Act (each, a "COMPANY AFFILIATE"). Except as set forth in the
Company SEC Reports, since the date of Company's last proxy statement filed with
the SEC, no event has occurred as of the date of this Agreement that would be
required to be reported by Company pursuant to Item 404 of Regulation S-K
promulgated by the SEC.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
As of the date of this Agreement, Parent and Merger Sub represent and
warrant to Company, subject to the exceptions specifically disclosed in writing
in the disclosure letter and referencing a specific representation delivered by
Parent to Company dated as of the date hereof and certified by a duly authorized
officer of Parent (in such person's capacity as an officer and not as an
individual) (the "PARENT DISCLOSURE LETTER"), as follows:
3.1 Organization of Parent and Merger Sub.
(a) Each of Parent and Merger Sub (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized; (ii) has the corporate or other power and
authority to own, lease and operate its assets and property and to carry on its
business as now being conducted; and (iii) except as would not be material to
Parent, is duly qualified or licensed to do business in each jurisdiction where
the character of the properties owned, leased or operated by it or the nature of
its activities makes such qualification or licensing necessary.
(b) Parent has delivered or made available to Company a
true and correct copy of the Certificate of Incorporation and Bylaws of Parent
and Merger Sub, each as amended to date (collectively, the "PARENT CHARTER
DOCUMENTS"), and each such instrument is in full force and effect. Neither
Parent nor Merger Sub is in violation of any of the provisions of the Parent
Charter Documents. Parent has delivered or made available to Company all
proposed or considered amendments to the Parent Charter Documents.
3.2 Parent and Merger Sub Capitalization.
(a) The authorized capital stock of Parent consists solely of
200,000,000 shares of Parent Common Stock, of which there were 53,325,075 shares
issued and outstanding as of the close of business on January 11, 2001. All
outstanding shares of Parent Common Stock are duly authorized, validly issued,
fully paid and nonassessable and are not subject to preemptive rights created by
statute, the Certificate of Incorporation or Bylaws of Parent or any agreement
or document to which Parent is a party or by which it is bound. As of the close
of business on January 11, 2001, (i) 13,101,530 shares of Parent Common Stock
are subject to issuance pursuant to outstanding options to purchase Parent
Common Stock, and (ii) 400,923 shares of Parent Common Stock are reserved for
future issuance under Parent's 1993 Employee Stock Purchase Plan. All shares of
Parent Common Stock subject to issuance as aforesaid, upon issuance on the terms
and conditions specified in the instruments pursuant to which they are issuable,
will be duly authorized, validly issued, fully paid and nonassessable.
(b) Except as set forth in Section 3.2(a) of this Agreement or Part
3.2 of the Parent Disclosure Letter, there are no equity securities, partnership
interests or similar ownership interests of any class of Parent equity security,
or any securities exchangeable or convertible into or exercisable for such
equity securities, partnership interests or similar ownership interests, issued,
reserved for issuance or outstanding.
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(c) The authorized capital stock of Merger Sub consists of 1,000
shares of common stock, $0.001 par value, all of which, as of the date hereof,
are issued and outstanding and are held by Parent. All of the outstanding shares
of Merger Sub's common stock have been duly authorized and validly issued, and
are fully paid and nonassessable. Merger Sub was formed for the purpose of
consummating the Merger and has no material assets or liabilities except as
necessary for such purpose.
(d) The Parent Common Stock to be issued in the Merger, when issued
in accordance with the provisions of this Agreement, will be validly issued,
fully paid and nonassessable.
3.3 Authority; Non-Contravention.
(a) Parent has all requisite corporate power and authority
to enter into this Agreement and the Stock Option Agreement and to consummate
the transactions contemplated hereby and thereby. Merger Sub has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the Stock Option Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Parent and Merger Sub. This Agreement and the
Stock Option Agreement have been duly executed and delivered by Parent and this
Agreement has been duly executed and delivered by Merger Sub and, assuming the
due authorization, execution and delivery by Company, constitute the valid and
binding obligations of Parent and Merger Sub, respectively, enforceable against
Parent and Merger Sub in accordance with their terms, except as enforceability
may be limited by bankruptcy and other similar laws affecting the rights of
creditors generally and general principles of equity.
(b) The execution and delivery of this Agreement and the
Stock Option Agreement by Parent and the execution and delivery of this
Agreement by Merger Sub does not, and the performance of this Agreement and the
Stock Option Agreement by Parent and the performance of this Agreement by Merger
Sub will not, (i) conflict with or violate the Parent Charter Documents, (ii)
subject to compliance with the requirements set forth in Section 3.3(c) below,
conflict with or violate any material law, rule, regulation, order, judgment or
decree applicable to Parent or Merger Sub or by which any of their respective
material properties is bound or affected, or (iii) result in any material breach
of or constitute a material default (or an event that with notice or lapse of
time or both would become a material default) under, or impair Parent's rights
or alter the rights or obligations of any third party under, or give to others
any rights of termination, amendment, acceleration or cancellation of; or result
in the creation of an Encumbrance on any of the material properties or assets of
Parent or Merger Sub pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Parent or Merger Sub is a party or by which Parent or Merger
Sub or any of their respective material properties are bound or affected. Part
3.3 of the Parent Disclosure Letter list all consents, waivers and approvals
under any of Parent's or any of its subsidiaries' agreements, contracts,
licenses or leases required to be obtained in connection with the consummation
of the transactions contemplated hereby, which, if individually or in the
aggregate were not obtained, would result in a material loss of benefits to
Parent or the Surviving Corporation as a result of the Merger.
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(c) No consent, approval, order or authorization of, or
registration, declaration or filing with any Governmental Entity or other person
is required to be obtained or made by Parent or Merger Sub in connection with
the execution and delivery of this Agreement and the Stock Option Agreement or
the consummation of the Merger, except for (i) the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware, (ii) the filing of
the Proxy Statement/Prospectus and the Registration Statement with the SEC and a
Schedule 13D with regard to the Stock Option Agreement and the Voting Agreements
in accordance with the Securities Act and the Exchange Act, and the
effectiveness of the Registration Statement, (iii) such consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under applicable federal, foreign and state securities (or related)
laws and the HSR Act and the securities or antitrust laws of any foreign
country, and (iv) such other consents, authorizations, filings, approvals and
registrations which if not obtained or made would not be material to Parent or
the Surviving Corporation or have a material adverse effect on the ability of
the parties hereto to consummate the Merger.
3.4 SEC Filings; Parent Financial Statements.
(a) Parent has filed all forms, reports and documents
required to be filed by Parent with the SEC since June 30, 1998, and has made
available to Company such forms, reports and documents in the form filed with
the SEC. All such required forms, reports and documents (including those that
Parent may file subsequent to the date hereof) are referred to herein as the
"PARENT SEC REPORTS." As of their respective dates, the Parent SEC Reports (i)
were prepared in accordance with the requirements of the Securities Act or the
Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Parent SEC Reports, and (ii) did not at the time
they were filed (or if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing) 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 made, not misleading, except to the extent
corrected prior to the date of this Agreement by a subsequently filed Parent SEC
Report. None of Parent's subsidiaries is required to file any forms, reports or
other documents with the SEC.
(b) Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the Parent SEC
Reports (the "PARENT FINANCIALS"), including any Parent SEC Reports filed after
the date hereof until the Closing, (i) complied as to form in all material
respects with the published rules and regulations of the SEC with respect
thereto, (ii) was prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes thereto
or, in the case of unaudited interim financial statements, as may be permitted
by the SEC on Form 1O-Q, 8-K or any successor form under the Exchange Act) and
(iii) fairly presented the consolidated financial position of Parent and its
subsidiaries as at the respective dates thereof and the consolidated results of
Parent's operations and cash flows for the periods indicated, except that the
unaudited interim financial statements may not contain f