Agreement and Plan of Merger, dated as of December 14, 2021, by and among Entegris, CMC and Merger Sub

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Section 6.04.        Indemnification, Exculpation and Insurance.

 

(a)         Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification or other similar agreements of the Company or any of its Subsidiaries, in each case as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms.  From and after the Effective Time, to the fullest extent permitted by Applicable Law (including to the fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that increase the degree to which a corporation may indemnify its officers and directors) the Surviving Company agrees that it will indemnify and hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries or who is as of the date of this Agreement, or who thereafter commences prior to the Effective Time, serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines, amounts paid in settlement and fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any actual or threatened Action, whether civil, criminal, administrative, regulatory or investigative (including with respect to matters existing or occurring or alleged to occur at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another Person, whether asserted or claimed prior to, at or after the Effective Time.  In the event of any such Action, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Action from the Surviving Company within ten (10) Business Days of receipt by the Surviving Company from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL or the Surviving Company’s certificate of incorporation or by-laws, to repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification and (ii) the Surviving Company shall cooperate in the defense of any such matter.

 

(b)          For a period of six (6) years following the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, maintain in effect the provisions in its certificate of incorporation and by-laws to the extent they provide for indemnification, advancement and reimbursement of expenses and exculpation of each Company Indemnified Party, as applicable, with respect to facts or circumstances occurring at or prior to the Effective Time, on the same basis as set forth in the Company Charter and Company By-laws in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.

 

(c)          In the event that Parent, the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Parent or the Surviving Company, as applicable, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section 6.04.

 

(d)          Prior to the Closing Date the Company shall (following reasonable consultation with Parent) use commercially reasonable efforts to purchase the Pre-Paid Tail (as defined below), or if the Company is unable to purchase the Pre-Paid Tail, Parent shall, or shall cause the Surviving Company to, as of or after the Effective Time to, purchase a six (6) -year prepaid “tail” directors’ and officers’ liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors and officers who are currently covered by the directors’ and officers’ and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the insured persons than the directors’ and officers’ liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the Effective Time (the “Pre-Paid Tail”); provided that in no event shall the cost of any such Pre-Paid Tail in respect of any one policy year exceed 300% of the aggregate annual premium most recently paid by the Company prior to the date of this Agreement (the “Maximum Amount”); provided, further that if the total cost for maintaining such Pre-Paid Tail exceeds the Maximum Amount, then the Company (after prior consultation with Parent) may obtain, or following Closing, Parent shall obtain a Pre-Paid Tail with the maximum coverage available for a total cost not to exceed the Maximum Amount.  The Surviving Company shall maintain such policies in full force and effect, and continue to honor the obligations thereunder.

 

(e)          From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Company and its Subsidiaries under this Section 6.04.

 

(f)          The provisions of this Section 6.04 (i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her representatives, and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.

 

Section 6.05.       Section 16 Matters. Prior to the Effective Time, Parent and the Company shall use reasonable best efforts to take such steps as may be reasonably necessary or advisable to cause dispositions of Company equity securities (including derivative securities) or acquisitions of Parent equity securities (including derivative securities) resulting from the transactions contemplated by this Agreement by each individual who is subject to Section 16 of the Exchange Act with respect to the Company or will become subject to such reporting requirements with respect to Parent to be exempt under Rule 16b-3 promulgated under the Exchange Act, to the extent permitted by Applicable Law.

 

Section 6.06.       Public Announcements.  Parent and the Company shall consult with each other before issuing, and give each other the reasonable opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement, and shall not issue any such press release or make any such public statement without the prior consent of the other party (which shall not be unreasonably withheld, delayed or conditioned); provided, however, that a party may, without the prior consent of the other party (but after prior consultation, to the extent practicable in the circumstances) issue such press release or make such public statement to the extent required by Applicable Law, court process or the rules and regulations of any national securities exchange or national securities quotation system; provided, further, that the foregoing shall not (i) apply to any public statement to the extent containing information that is consistent with the joint press release referred to below or any other release or public statement previously issued or made in accordance with this Section 6.06, (ii) any communication in accordance with Section 5.02(e) or (iii) in the event of a Company Adverse Recommendation Change made in compliance with Section 5.02(d), the Company’s public statement containing (x) such Company Adverse Recommendation Change and (y) a statement of the reasons of the Company Board for making such Company Adverse Recommendation Change, and the right of consent (but not the obligation to consult) set forth in this Section 6.06 shall not apply to information referenced under the preceding clauses (x) and (y), except with respect to such information solely relating to Parent or its business, financial condition or results of operations.  The parties hereto agree that the initial press release to be issued with respect to the transactions contemplated hereby following execution of this Agreement will be a joint press release and shall be in a form agreed to by Parent and the Company.  Except as expressly contemplated by this Agreement (including the first sentence of this Section) or as required by Applicable Law, no party shall issue any press release or make any public statement regarding the other party or the other party’s operations, directors, officers or employees without obtaining the other party’s prior written consent.  In addition, the parties shall coordinate with respect to communications with employees, suppliers, customers, agents and other stakeholders regarding post-Closing transition, integration and related matters.

 

Section 6.07.        Employee Matters.

 

(a)          Parent shall provide, or shall cause to be provided, to each employee of the Company and its Subsidiaries who continues to be employed by Parent or its Subsidiaries following the Effective Time (each, a “Continuing Employee”), during the period beginning at the Effective Time and ending on the twelve-month anniversary of the Effective Time (the “Continuation Period”) with (i) base pay or wages that is at least equal to the base pay or wages provided to each such Continuing Employee immediately prior to the Closing Date, (ii) target cash incentive opportunities and target long-term incentive opportunities, as applicable, that are, in each case, no less favorable than the target cash incentive and target long-term incentive opportunities provided to each such Continuing Employee immediately prior to the Closing Date, (iii) health and welfare benefits that are no less favorable in the aggregate than the health and welfare benefits provided to each such Continuing Employee immediately prior to the Closing Date, and (iv) retirement benefits that are no less favorable than the retirement benefits provided to each such Continuing Employee immediately prior to the Closing Date.  In addition to the foregoing, during the Continuation Period, each Continuing Employee shall be provided with severance benefits in accordance with the terms of, and that are no less favorable than those applicable to the Continuing Employee immediately prior to the Effective Time under, the Company Benefit Plans set forth in Section 3.14(a) of the Company Disclosure Letter (each, a “Company Severance Plan”); provided that (x) such severance benefits shall be determined taking into account each Continuing Employee’s service with the Company and its Subsidiaries (and any predecessor entities) prior to the Effective Time and Parent and its Subsidiaries (including the Surviving Company) after the Effective Time, and (y) shall be subject to the execution and non-revocation of a release of claims (which shall not contain any restrictive covenants other than those related to confidentiality) in favor of Parent and its Subsidiaries, to the extent permissible under Applicable Law.

 

(b)         If a Continuing Employee becomes eligible to participate in any employee benefit plan maintained by Parent or any of its Subsidiaries (collectively, the “Parent Plans”), then, for all purposes of such plans, including eligibility to participate, vesting and benefit accrual, service with the Company or any of its Subsidiaries (as well as service with any predecessor employer of the Company or any such Subsidiary) prior to the Effective Time shall be treated as service with Parent or any of its Subsidiaries to the extent recognized by the Company and its Subsidiaries prior to the Effective Time; provided, however, that such service shall not be recognized to the extent that such recognition would result in any duplication of benefits and Parent shall not be required to provide credit for benefit accrual purposes under any Parent Plan that is a defined benefit pension plan.  In addition, subject to Applicable Law, Parent shall use its reasonable best efforts to (i) waive, or caused to be waived, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Continuing Employees under any Parent Plan that is a welfare benefit plan in which such Continuing Employees may be eligible to participate after the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid during the plan year in which the Effective Time occurs in satisfying any applicable deductible or out-of-pocket requirements under any Parent Plans that are welfare plans in which such Continuing Employee is eligible to participate after the Effective Time.

 

(c)          Notwithstanding anything contained herein to the contrary, with respect to any Continuing Employees who are based outside of the United States or are covered by a Collective Bargaining Agreement, Parent shall comply with any obligations under the Applicable Laws of the foreign countries and political subdivisions thereof in which such Continuing Employees are based and with the applicable Collective Bargaining Agreement, as applicable.

 

(d)         Parent shall, or shall cause the Surviving Company to, assume and honor all Company Benefit Plans, including the Change in Control Agreements (as defined in the Company Disclosure Letter), in accordance with their terms.  Parent hereby acknowledges that a “change in control” (or similar phrase) within the meaning of the Company Benefit Plans will occur at the Effective Time.

 

(e)         Nothing contained in this Section 6.07, expressed or implied, shall (i) be treated as the establishment, amendment or modification of any Company Benefit Plan or Parent Plan or other employee benefit plan or constitute a limitation on rights to amend, modify, merge or terminate after the Effective Time any Company Benefit Plan or Parent Plan or other employee benefit plan, (ii) give any current or former employee, director or other independent contractor of the Company and its Subsidiaries (including any beneficiary or dependent thereof) any third-party beneficiary or other rights or (iii) obligate Parent or any of its Affiliates to (A) maintain any particular Company Benefit Plan or Parent Plan or (B) retain the employment or services of any current or former employee, director or other independent contractor.

 

Section 6.08.        Merger Sub; Parent Subsidiaries; Company Subsidiaries. Parent shall cause Merger Sub and any other applicable Subsidiary of Parent to comply with and perform all of its obligations under or relating to this Agreement, including in the case of Merger Sub to consummate the Merger on the terms and conditions set forth in this Agreement.  The Company shall cause each of its Subsidiaries to comply with and perform all of its obligations under or relating to this Agreement.

 

Section 6.10.       Stockholder Litigation. The Company shall give Parent reasonable opportunity to participate in (but not control) the defense (at Parent’s sole cost and subject to a joint defense agreement) of any stockholder litigation brought against the Company or its directors or officers relating to the transactions contemplated by this Agreement, including the Merger.  Without limiting the preceding sentence, the Company shall give Parent the right to review and comment on all material filings or responses to be made by the Company in connection with any such litigation, and the right to consult on the settlement with respect to such litigation, and the Company will in good faith take such comments into account, and, no such settlement shall be agreed to without Parent’s prior written consent (which shall not be unreasonably withheld, delayed or conditioned).  The Company shall promptly notify Parent of any such litigation and shall keep Parent reasonably and promptly informed with respect to the status thereof.  Parent shall provide reasonable notice to the Company of any stockholder litigation brought against Parent or its directors or officers relating to the transactions contemplated by this Agreement, including the Merger, and shall not agree to any settlement of such litigation that would prohibit the consummation of, materially delay the consummation of, or have a material adverse effect on the ability of Parent to consummate, the Merger or the other transactions contemplated in this Agreement or would cause the Company to incur material expense or liability without the Company’s prior written consent (which shall not be unreasonably withheld, delayed or conditioned).

 

Section 6.11.       Financing.

 

(a)         Parent shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund the Merger Consideration and the other Merger Amounts on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof.  In furtherance and not in limitation of the foregoing, unless and until Parent has (I) unrestricted and uncommitted cash on hand that will be available on the Closing Date to fund the Merger Amounts plus (II) cash deposited in one or more escrow accounts designated for use to pay the Merger Amounts (provided that the terms of the escrow agreement governing such escrow arrangement do not impose conditions precedent or contingencies to the release of such cash for purposes of funding the Merger Amounts that are more onerous than the conditions set forth in the Commitment Letter in effect as of the date hereof or that would reasonably be expected to (1) materially delay, prevent or impede the consummation of the Merger, (2) make the funding of the availability of the cash in such escrow (or satisfaction of the conditions to the release of such cash) less likely to occur than the funding of the Financing pursuant to the Commitment Letter as in effect as of the date hereof or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights in respect of the escrowed cash in any material respect as compared to its ability to enforce its rights against the other parties to the Commitment Letter as in effect as of the date hereof (any cash that satisfies the requirement of the immediately preceding clause (I) or clause (II), “Funding Cash”) in an amount sufficient to fund the Merger Amounts in full on the Closing Date , Parent and Merger Sub shall, subject to the terms of this Agreement (including the rights of Parent and Merger Sub in this Section 6.11(a) to obtain Permitted Alternative Financing), use their reasonable best efforts to take, or cause to be taken, all actions and use their reasonable best efforts to do, or cause to be done, all things necessary or advisable to arrange the Financing and to consummate the Financing at or prior to the Effective Time, including using reasonable best efforts to (i) maintain in effect the Commitment Letter; (ii) negotiate, execute and deliver definitive documentation for the Financing that reflects the terms contained in the Commitment Letter (subject to any “market flex” provisions included in the Fee Letter or any fee letter relating to a Required Alternative Financing); (iii) satisfy (or seek a waiver of) on a timely basis all of the conditions precedent set forth in the Commitment Letter and any definitive document related to the Financing that are within the control of, Parent and Merger Sub and comply with their obligations thereunder; (iv) in the event that the conditions set forth in Section 7.01 and Section 7.02 and the conditions precedent set forth in the Commitment Letter have been satisfied or, upon funding would be satisfied, enforce their rights under the Commitment Letter and any definitive documentation for the Financing and (v) in the event that the conditions set forth in Section 7.01 and Section 7.02 have been satisfied or, upon release of any Funding Cash from escrow, would be satisfied, enforce their rights under all escrow arrangements with respect to any Funding Cash. Parent and Merger Sub shall have the right from time to time to amend, restate, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other debt financing for all or any portion of the Financing from the same and/or alternative financing sources (a “Permitted Alternative Financing” and, together with any Required Alternative Financing as described in clause (b) below, each an “Alternative Financing”); provided that any such amendment, restatement, supplement, replacement or other modification to or waiver of any provision of the Commitment Letter shall not, without the prior written consent of the Company, (A) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount, unless the Financing is increased by a corresponding amount) to be funded at or prior to Closing such that the aggregate amount of Financing plus the Funding Cash of the Parent as of the date of any such amendment, restatement, supplement, replacement, modification or waiver, would not be sufficient to pay the Merger Consideration and the other Merger Amounts or (B) impose new or additional conditions precedent or contingencies to the Financing or otherwise amend, modify, or expand any conditions precedent to the funding of the Financing, or any other term or condition of the Commitment Letter or the Financing, in each case, in a manner that would reasonably be expected to (1) materially delay, prevent or impede the consummation of the Merger, (2) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter or the definitive agreements with respect thereto, in any material respect; provided, further, that Parent and Merger Sub may amend, restate, replace, supplement or otherwise modify the Commitment Letter on one or more occasions to add additional arrangers, bookrunners, agents and lenders in accordance with the terms of the Commitment Letter (but not to make any other changes other than to the extent otherwise permitted under this Section 6.11(a)).  For purposes of this Agreement, the definition of “Commitment Letter” shall include any amendment, restatement, supplement or other modification or waiver thereto, or any replacement thereof, in each case permitted by this Section 6.11(a), and the definition of “Financing” shall include any Alternative Financing.

 

(b)         Unless Parent then has Funding Cash in an amount sufficient to fund the Merger Amounts in full on the Closing Date, if any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (subject to any “market flex” provisions included in the Fee Letter and other than on account of any Permitted Alternative Financing having been completed) other than due to the failure of any condition set forth in Section 7.01 or Section 7.02 of this Agreement, each of Parent and Merger Sub shall (A) use its reasonable best efforts to obtain alternative debt financing from the same or alternative sources as promptly as practicable following the occurrence of such event in an amount, together with any Funding Cash of the Parent as of such date, that will still enable Parent and Merger Sub to pay the Merger Consideration and any other Merger Amounts, and which does not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the Commitment Letter as in effect as of the date hereof (a “Required Alternative Financing”) and (B) promptly notify the Company of such unavailability and the reason therefor.

 

(c)         Parent shall, upon reasonable request, keep the Company informed in reasonable detail of the status of its efforts to arrange the Financing and shall provide to the Company copies of any amendment, restatement, replacement, supplement or modification of the Commitment Letter and all executed final definitive documents relating to the Financing (excluding and redacting any provisions related solely to fees, pricing caps, economic and “market flex” terms and any other provisions in any fee or engagement letters that are customarily redacted in connection with transactions of this type and that would not in any event adversely affect the conditionality, enforceability, availability, termination or amount of the Financing).  Without limiting the generality of the foregoing, Parent shall give the Company prompt written notice, which shall include reasonably detailed information regarding the applicable circumstances referenced in the following clauses: (i) if Parent becomes aware of any actual or threatened breach or default by any party to the Commitment Letter or any definitive document related to the Financing, if such breach or default would reasonably be expected to result in a delay of the Closing Date or unavailability of any of the Financing; (ii) of the receipt by it of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Commitment Letter or any definitive document related to the Financing or any provisions of the Commitment Letter or any definitive document related to the Financing, or (B) material dispute or disagreement between or among any parties to the Commitment Letter or any definitive document related to the Financing with respect to the obligation to fund any portion of the Financing or the amount of the Financing to be funded at Closing, in each case if such breach, default, termination, repudiation, dispute or disagreement would reasonably be expected to result in a delay of the Closing Date or unavailability of any of the Financing; (iii) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by the Commitment Letter (subject to the “market flex” provisions included in the Fee Letter or any fee letter relating to any Alternative Financing) or the definitive documents related to the Financing unless Parent has Funding Cash as of such date in an amount sufficient to fund the Merger Amounts in full on the Closing Date, and (iv) upon consummating the Financing.  As soon as reasonably practicable, after the date the Company delivers Parent or either Merger Sub a written request, Parent and Merger Sub shall provide any additional information reasonably requested by the Company relating to any circumstance referred to in clause (i), (ii), (iii) or (iv) of the immediately preceding sentence.

 

(d)         From the date hereof until the earlier of (i) the Closing Date and (ii) termination of this Agreement pursuant to Section 8.01, the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and their respective Representatives to, use reasonable best efforts to provide, Parent and Merger Sub such customary cooperation as may be reasonably requested by Parent in connection with any Financing (which, for purposes of this clause (d), shall include any capital markets financing sought by Parent in replacement of all or any portion of the Financing contemplated by the Commitment Letter in compliance with the terms of this Agreement), including, without limitation, (A) participating (including by teleconference or virtual meeting platforms) (including by making members of senior management, certain representatives and certain non-legal advisors, in each case with appropriate seniority and expertise, available to participate), upon reasonable advance notice, in a reasonable number of meetings, presentations, non-deal and investor road shows, rating agency presentations and drafting sessions, and participating in reasonable and customary due diligence, in each case, with or by the Financing Sources (or prospective lenders or investors in any Financing) at mutually agreed times and places, (B) furnishing Parent and the Financing Sources, as promptly as reasonably practicable, with the Required Information, (C) assisting Parent and the Financing Sources in the preparation of (I) customary offering documents, syndication documents and materials (including assistance in creating usual and customary “public versions” of the foregoing), including confidential information memoranda, private placement memoranda, offering memoranda, prospectuses, lender and investor presentations, rating agency presentations, business and financial projections and similar documents and materials (which may incorporate by reference periodic and current reports filed by the Company with the SEC), in connection with any Financing (all of the foregoing, collectively, the “Offering Documents”), including providing the “MD&A” and business description to be contained therein, and providing customary authorization and representation letters with respect thereto, and (II) materials for any Offering Documents, including business projections and financial statements (including assisting Parent in preparing pro forma financial statements; provided that neither the Company nor any of its Subsidiaries or Representatives shall be responsible in any manner for any pro forma financial information or pro forma adjustments relating to the Merger and the consideration therefor that is required to be made to the historical information for such pro forma financial information) and identifying any portion thereof as containing material, non-public information relating to the Company and its Subsidiaries or their respective securities, (D) reasonably cooperating with the marketing and syndication efforts of Parent, Merger Sub and any Financing Sources for any portion of any Financing, including cooperation in connection with the obtaining of ratings, (E) using its reasonable best efforts to cause its current independent accountants to provide customary assistance and cooperation in any Financing, including using reasonable best efforts to cause such accountants to (I) participate in a reasonable number of drafting sessions and accounting due diligence sessions upon reasonable advance notice and at mutually agreed times and places, (II) provide any necessary customary written consents to use their audit reports relating to the Company and to be named as an “Expert” in any document related to any Financing and (III) provide any customary “comfort letters” (including customary negative assurance comfort, including change period comfort), (F)  executing and delivering as of (but not before) the Effective Time, and reasonably assisting Parent with Parent’s preparation of, definitive financing documents, including credit agreements, indentures, intercreditor agreements, pledge and security documents, and certificates (including borrowing base certificates), or other documents, to the extent reasonably requested by Parent and otherwise facilitating the pledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral to secure any Financing; provided that the effectiveness of any definitive documentation executed by the Company or any of its Subsidiaries and any such pledge, grant, recordation or perfection shall be subject to the consummation of the Merger, (G) furnishing Parent and any Financing Sources promptly, and in any event at least four (4) Business Days prior to the Closing Date, with all documentation and other information relating to the Company and its Subsidiaries required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation,  the PATRIOT Act, in each case, to the extent that such documentation and information has been reasonably requested in writing (which may be by email) at least ten (10) Business Days prior to the Closing Date, (H) informing Parent if the chief executive officer, chief financial officer, treasurer or controller of the Company has knowledge of any facts as a result of which a restatement of any of the Company’s financial statements, in order for such financial statements to comply with GAAP, is necessary, (I) updating any Required Information (including financial statements) provided to Parent or the Financing Sources as may be necessary so that such Required Information qualifies as Compliant prior to the Closing and (J) facilitating the arrangement by Parent of approval of the Financing by the post-Closing boards of directors or equivalent governing bodies of Subsidiaries of the Company, provided that (1) no Persons other than Persons who are directors or equivalent members of the boards of directors or equivalent governing bodies of such Subsidiaries from and after the Effective Time shall be required to approve or execute such approvals and (2) no such approvals shall be effective prior to the Effective Time; provided that, notwithstanding anything in this Agreement to the contrary, (I) neither the Company nor any of its Subsidiaries shall be required to take any action that would cause it to bear any out-of-pocket cost or expense (unless promptly reimbursed by Parent pursuant to clause (e) below), incur any liability, or pay any commitment or other similar fee or make any other similar payment or incur any other monetary liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing, in each case, to the extent effective prior to the Effective Time, (II) neither the Company nor any of its Subsidiaries or Representatives shall be required to take any action in connection with this Section 6.11 that would interfere unreasonably with the business or operations of the Company or its Subsidiaries, (III) neither the Company nor any of its Subsidiaries shall be required to take any action with respect to the Financing or otherwise in connection with this Section 6.11 that will conflict with or violate their respective organizational documents or result in the contravention of any contract to which the Company or any of its Subsidiaries is a party that is material to the business of the Company and its Subsidiaries, taken as a whole, prior to the Effective Time, (IV) neither the Company nor any of its Subsidiaries, nor any of their respective directors, shall be required to pass resolutions or consents to approve or authorize the execution of the Financing or any action in connection with this Section 6.11, in each case, that is not contingent on the Closing Date occurring or that would be effective prior to the Effective Time, (V) no director, officer, employee or stockholder of the Company or any of its Subsidiaries shall be required to take any action that would cause him or her to incur any actual personal liability with respect to any matters related to the Financing or contemplated by this Section 6.11, (VI) neither the Company nor any of its Subsidiaries shall be required to provide access to or disclose information that the Company or any of its Subsidiaries reasonably determines would jeopardize any attorney-client privilege of the Company or any of its Subsidiaries, and (VII) neither the Company nor any of its Subsidiaries shall be required to prepare any financial statements or information that are not reasonably available to it and prepared in the ordinary course of its financial reporting practice, in each case, except with respect to the Required Information, and (VIII) neither the Company nor any of its Subsidiaries shall be required to enter into any instrument or agreement (other than customary authorization and representation letters) that is effective prior to the Effective Time or that would be effective if the Closing does not occur; provided, further, that the Company shall have satisfied its obligations set forth in clause (A) through (I) of this sentence if the Company shall have used its reasonable efforts to comply with such obligations whether or not any applicable deliverables are actually obtained or provided.  The Company hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the marketing of any Financing; provided that such logos are used solely in a manner that is not intended to, and is not reasonably likely to, harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company, its Subsidiaries and its or their respective marks, products, services, offerings or intellectual property rights.  Nothing contained in this Section 6.11 or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Financing.

 

(e)          Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all liabilities, losses, damages, claims, reasonable and documented out-of-pocket costs and expenses, interest, awards, judgments and penalties actually suffered or incurred by them in connection with the arrangement of the Financing or any action taken in accordance with this Section 6.11 and any information utilized in connection therewith (other than information provided by the Company, any of its Subsidiaries or any of their respective Representatives on their behalf in writing for use in the Offering Documents), in any case, except (i) to the extent suffered or incurred as a result of the bad faith, the gross negligence, willful misconduct, fraud or intentional misrepresentation by or of the Company or its Subsidiaries or their respective Representatives and (ii) as a result of any breach of this Agreement by the Company, its Subsidiaries or any of their respective Representatives.  In addition, Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 6.11.

 

(f)          This Section 6.11 shall be the only provision in this Agreement setting forth the Company’s obligations to cooperate or provide information or access or take any other action in respect of the Financing.  In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Parent, any Merger Sub or any of their respective affiliates or any other financing be a condition to any of Parent’s or any Merger Sub’s obligations under this Agreement.

 

Section 6.12.       Treatment of Certain Indebtedness. On or prior to the Closing Date, the Company shall, and shall cause its Subsidiaries to, use its and their respective reasonable best efforts to cause the administrative agent under the Existing Credit Agreement to furnish to Parent, no later than three (3) Business Days prior to the Closing Date, a draft of the payoff letter with respect to the Existing Credit Agreement (the “Payoff Letter”) in customary form, which Payoff Letter shall (x) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties (if any), breakage costs or other amounts then due and payable, in each case, under the Existing Credit Agreement and the related loan documentation (the “Payoff Amount”) and (y) state that all obligations (including guarantees) in respect thereof and Liens granted in connection therewith on the assets of the Company or any of its Subsidiaries or otherwise on the business of the Company shall be, substantially concurrently with the receipt of the Payoff Amount on the Closing Date by the applicable agent under the Existing Credit Agreement, released or customary arrangements for such release shall have been made by such time, subject, as applicable, to the replacement (or cash collateralization or backstopping) of any then outstanding letters of credit or similar indebtedness.  Parent shall provide all funds required to repay the Existing Credit Agreement pursuant to the Payoff Letter on the Closing Date. In no event shall the receipt of the Payoff Letter or the repayment or termination of the Existing Credit Agreement, or any other financing termination or the release of any Lien, be a condition to any of the obligations of Parent or Merger Sub hereunder.

 

Section 6.13.        Third-Party Consents. The Company shall use its commercially reasonable efforts, and shall cause its Subsidiaries to use their commercially reasonable efforts, to take all actions reasonably requested by Parent to obtain waivers and consents from any and all third parties with respect to each Material Contract (other than the Existing Credit Agreement) for which such waiver or consent is required in connection with the transaction contemplated by this Agreement; provided that in no event shall the Company or any of its Subsidiaries be required to pay any consideration to any third party in connection with obtaining such consent or waiver or be required to agree to any change that is not conditioned on the Closing; provided, further, that the Company shall not agree to any change to such Contracts that would be materially adverse to the interests of the Company, its Subsidiaries or, after the Merger, Parent or any of its Subsidiaries without the prior written consent of Parent; provided, further, that if the Company complies with the requirements of this Section 6.13, but is unable to obtain any such consent, such failure shall not be deemed to be a breach of this Section 6.13.

 

Section 6.14.       Cash Balances. Commencing with the first day of the Marketing Period, the Company will, and will cause its Subsidiaries to, use commercially reasonable efforts to take such actions as are reasonably requested by Parent prior to the Closing with respect to the Company’s existing cash balances, cash equivalents and marketable securities to enable Parent to use a portion of such cash balances, cash equivalents and marketable securities to fund a portion of the Merger Consideration; provided that neither the Company nor any of its Subsidiaries shall be required to take any action under this Section 6.14 that would interfere unreasonably with the business or operations of the Company or its Subsidiaries prior to Closing.

 

Section 6.15.       Advice of Changes.

 

(a)         The Company and Parent shall each promptly advise the other party of any fact, change, event or circumstance that has had or is reasonably likely to have a Company Material Adverse Effect or Parent Material Adverse Effect (as applicable) on it or which it believes would or would be reasonably likely to give rise to a failure of a condition precedent set forth in Section 7.02(a) or Section 7.02(b) (in the case of Parent or Merger Sub) or Section 7.03(a) or Section 7.03(b) (in the case of the Company) to be satisfied; provided that any failure to give notice in accordance with the foregoing shall not constitute the failure of any condition set forth in Section 7.02 or Section 7.03 to be satisfied, or otherwise constitute a breach of this Agreement by the party failing to give such notice, in each case unless the underlying breach would independently result in a failure of the conditions set forth in Section 7.02 or Section 7.03 to be satisfied; provided, further, that that the delivery of any notice pursuant to this Section 6.15 shall not limit or otherwise affect the remedies of the Company or Parent available hereunder and no information delivered pursuant to this Section 6.15 shall update any section of the Company Disclosure Letter or the Parent Disclosure Letter or shall affect the representations or warranties of the parties hereunder.

 

(b)          The Company and Parent shall each promptly advise the other party of (i) any written notice or other written communication from any person alleging that the consent of such person is or may be required in connection with the transactions contemplated by this Agreement to the extent that the party receiving such notice or communication believes there is a reasonable likelihood that the failure to obtain such consent would have a material impact on the timing of the consummation of the Merger or on the Company, the Surviving Company or Parent or (ii) upon receiving any written communication from any Governmental Entity or third party whose consent or approval is required for the satisfaction of one of the conditions to Closing set forth in Article VII that causes such party to believe that there is a reasonable likelihood that any such consent or approval will not be obtained or that the receipt of any such consent or approval will be materially delayed.

 

 

 

Section 7.01.       Conditions to Each Party’s Obligation to Effect the Merger. The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver on or prior to the Closing Date of the following conditions:

 

(a)         Stockholder Approval.  The Company Stockholder Approval shall have been obtained in accordance with the Company Charter, the Company By-laws and Applicable Law, including the applicable rules of NASDAQ.

 

(b)          Regulatory Approvals.  (i) The waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or terminated and (ii) all authorizations or consents to be obtained from a Governmental Entity with respect to the Merger under each Regulatory Law set forth in Section 7.01(b) of the Company Disclosure Letter (the “Required Approvals”) shall have been obtained or deemed to have been obtained.

 

(c)          Legal Restraints.  No Applicable Law and no judgment, preliminary, temporary or permanent, or other legal restraint or prohibition and no binding Order or determination by any Governmental Entity shall be in effect that prevents, makes illegal, restrains, enjoins or otherwise prohibits the consummation of the Merger.

 

(d)          Registration Statement Effective.  The SEC shall have declared the Registration Statement effective under the Securities Act, no stop order or similar restraining order by the SEC suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for that purpose shall be pending before the SEC.

 

(e)         Exchange Listing.  The shares of Parent Common Stock to be issued pursuant to the Merger shall have been approved for listing on NASDAQ, subject to official notice of issuance.

 

Section 7.02   .    Conditions to Obligation of Parent and Merger Sub. The obligation of Parent and Merger Sub to consummate the Merger is further subject to the satisfaction (or waiver by Parent, to the extent permissible under Applicable Law) of the following conditions:

 

(a)         Representations and Warranties.  (i) The representations and warranties of the Company contained in Section 3.01(a) [Qualification, Organization, Subsidiaries, etc.], Section 3.02 [Authority; Execution and Delivery; Enforceability], Section 3.03(b) [Capital Structure] (other than the first sentence and the penultimate sentence of Section 3.03(b)), Section 3.04(b)(i) [Non-contravention], Section 3.18 [Brokers Fees and Expenses], Section 3.19 [Opinion of Financial Advisor], and Section 3.20 [Takeover Statutes] shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (ii) the representations and warranties of the Company contained in Section 3.03(a) [Capital Structure], the first sentence and the penultimate sentence of Section 3.03(b) [Capital Structure] and the first sentence of Section 3.06 [Absence of Certain Changes] shall be true and correct in all respects at and as of the Closing Date as if made at and as of such time, except, in the case of Section 3.03(a) [Capital Structure] or the first sentence and penultimate sentence of Section 3.03(b) [Capital Structure], for such inaccuracies as are de minimis, and (iii) all other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth therein) has not had and would not reasonably be expected to have a Company Material Adverse Effect.

 

(b)         Performance of Obligations of the Company.  The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date.

 

(c)         Company Certificate.  The Company shall have delivered to Parent a certificate, dated as of the Closing Date and signed by its Chief Executive Officer, Chief Financial Officer or General Counsel, certifying to the effect that the conditions set forth in Section 7.02(a) and Section 7.02(b) have been satisfied.

Section 7.03.       Conditions to Obligations of the Company. The obligations of the Company to consummate the Merger are further subject to the satisfaction (or waiver by the Company, to the extent permissible under Applicable Law) the following conditions:

 

(a)          Representations and Warranties.  (i) The representations and warranties of Parent and Merger Sub contained in Section 4.01(a) [Qualification, Organization, and Good Standing], Section 4.02 [Authority; Execution and Delivery; Enforceability], Section 4.03(a) [Capital Structure], Section 4.03(b) [Capital Structure] and Section 4.04(b)(i) [Non-contravention] shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date) shall be true and correct in all material respects at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (ii) the representations and warranties of Parent and Merger Sub contained in Section 4.03(c) [Capital Structure] and the first sentence of Section 4.06 [Absence of Certain Changes or Events] shall be true and correct in all respects at and as of the Closing Date as if made at and as of such time, except, in the case of Section 4.03(c) [Capital Structure], for such inaccuracies as are de minimis and (iii) all other representations and warranties of Parent and Merger Sub in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein) at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth therein), has not had and would not reasonably be expected to have a Parent Material Adverse Effect.

 

(b)         Performance of Obligations of Parent and Merger Sub.  Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by them under this Agreement at or prior to the Closing Date.

 

(c)         Parent Certificate.  Parent shall have delivered to the Company a certificate, dated as of the Closing Date and signed by its Chief Executive Officer, Chief Financial Officer or General Counsel, certifying to the effect that the conditions set forth in Section 7.03(a) and Section 7.03(b) have been satisfied.

 

 

 

Section 8.01.        Termination This Agreement may be terminated at any time prior to the Effective Time, whether before or after receipt of the Company Stockholder Approval (except as otherwise stated below):

 

(a)         by mutual written consent of the Company and Parent;

 

(b)         by either the Company or Parent:

 

(i)         if the Merger is not consummated on or before December 14, 2022 (the “End Date”); provided, however, that (x) if, on the End Date, any of the conditions to the Closing set forth in Section 7.01(b) or Section 7.01(c) (if such legal restraint is in respect of a Regulatory Law) shall not have been satisfied or (to the extent permitted by Applicable Law) waived by both the Company and Parent, but all other conditions to the Closing (other than those conditions that by their terms are to be satisfied at the Closing) have been satisfied or, to the extent permitted by Applicable Law, waived, then the End Date shall, without any action on the part of the parties hereto, be automatically extended to March 14, 2023, or such earlier date as may be agreed in writing by Parent and the Company (and which date shall thereafter be deemed to be the End Date) and (y) the right to terminate this Agreement under this Section 8.01(b)(i) shall not be available to any party whose failure to fulfill any obligation under this Agreement (including the obligation to consummate the Closing when required pursuant to Section 1.02 hereof) materially contributed to the failure of the Merger to be consummated on or before such date (it being understood that Parent and Merger Sub shall be deemed a single party for purposes of the foregoing proviso);

 

(ii)        if any Governmental Entity of competent authority listed on Section 8.01(b)(ii) of the Company Disclosure Letter issues a final non-appealable Order or enacts a law that prohibits, restrains or makes illegal the consummation of the Merger; provided, however, that the right to terminate this Agreement under this Section 8.01(b)(ii) shall not be available to any party if such Order was due to the failure of such party to perform any of its obligations under this Agreement (it being understood that Parent and Merger Sub shall be deemed a single party for purposes of the foregoing proviso); or

 

(iii)      if the Company Stockholder Approval shall not have been obtained at a duly convened Company Stockholders Meeting or any adjournment or postponement thereof; or

 

(c)          by the Company:

 

(i)         if Parent or Merger Sub has breached any representation, warranty, covenant or agreement contained in this Agreement, or if any representation or warranty of Parent or Merger Sub has become untrue, in each case, such that the conditions set forth in Section 7.03(a) or Section 7.03(b), as the case may be, could not be satisfied as of the Closing Date; provided, however, that the Company may not terminate this Agreement pursuant to this Section 8.01(c)(i) unless any such breach or failure to be true has not been cured within 30 days after written notice by the Company to Parent informing Parent of such breach or failure to be true, except that no cure period shall be required for a breach which by its nature cannot be cured prior to the End Date; and provided, further, that the Company may not terminate this Agreement pursuant to this Section 8.01(c)(i) if the Company is then in breach of this Agreement in any material respect; or

 

(ii)        prior to the Company Stockholder Approval, (A) if the Company Board authorizes the Company, to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to a Company Superior Proposal in accordance with the terms of Section 5.02(d), (B) substantially concurrent with the termination of this Agreement, the Company enters into such Alternative Acquisition Agreement and (C) the Company pays to Parent in immediately available funds the Company Termination Fee in accordance with Section 8.03(b); or

 

(d)         by Parent:

 

(i)         if the Company has breached any representation, warranty, covenant or agreement contained in this Agreement, or if any representation or warranty of the Company has become untrue, in each case, such that the conditions set forth in Section 7.02(a) or Section 7.02(b), as the case may be, could not be satisfied as of the Closing Date; provided, however, that Parent may not terminate this Agreement pursuant to this Section 8.01(d)(i) unless any such breach or failure to be true has not been cured within 30 days after written notice by Parent to the Company informing the Company of such breach or failure to be true, except that no cure period shall be required for a breach which by its nature cannot be cured prior to the End Date; and provided, further, that Parent may not terminate this Agreement pursuant to this Section 8.01(d)(i) if Parent is then in breach of this Agreement in any material respect;

 

(ii)        prior to the receipt of the Company Stockholder Approval, if (A) a Company Adverse Recommendation Change shall have occurred or (B) the Company has willfully or intentionally breached Section 5.02, Section 6.01(b) or Section 6.01(c);

 

The Party desiring to terminate this Agreement pursuant to this Section 8.01 (other than pursuant to Section 8.01(a)) shall give written notice of such termination to the other Party specifying the provision of this Agreement pursuant to which such termination is being effected.

 

Section 8.02.       Effect of Termination In the event of termination of this Agreement by either Parent or the Company as provided in Section 8.01, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of the Company, Parent or Merger Sub, other than Section 5.03(c), the last sentence of Section 5.03(d), Section 6.02(c), Section 6.11(e), this Section 8.02, Section 8.03 and Article IX, which provisions shall survive such termination; provided, however, that no such termination shall relieve any party from any liability or damages arising out of: (a) fraud by any party or (b) any willful or intentional breach of this Agreement.  No termination of this Agreement shall affect the obligations of the Parties contained in the Confidentiality Agreement.

 

Section 8.03.       Fees and Expenses

 

(a)          Except as specifically provided for herein, all fees and expenses incurred in connection with the Merger and the other transactions contemplated by this Agreement shall be paid by the party incurring such fees or expenses, whether or not such transactions are consummated.

 

(b)         The Company shall pay to Parent a fee of one hundred eighty seven million ($187,000,000) (the “Termination Fee”) if:

 

(i)         Parent terminates this Agreement pursuant to Section 8.01(d)(ii) [Company Adverse Recommendation Change; Breach of Non-Solicit and Company Stockholder Meeting Covenants]; or

 

(ii)        the Company terminates this Agreement pursuant to Section 8.01(c)(ii); or

 

(iii)       (A) a Company Acquisition Proposal shall have been made to the Company and not publicly withdrawn prior to the Company Stockholders Meeting or shall have been made directly to the stockholders of the Company generally and not publicly withdrawn prior to the Company Stockholders Meeting; (B) thereafter this Agreement is terminated pursuant to (I) Section 8.01(b)(i) or Section 8.01(d)(i), in each case if the Company Stockholder Approval has not been obtained prior to termination and all other conditions set forth in Section 7.01 and Section 7.03 either (x) have been satisfied or were capable of being satisfied prior to such termination or (y) are not satisfied due to the failure of the Company to perform its obligations under this Agreement or (II) Section 8.01(b)(iii); and (C) within twelve (12) months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated a Company Acquisition Proposal; provided, however, that for purposes of this Section 8.03(b)(iii) the references to 20% in the definition of “Company Acquisition Proposal” shall be deemed to be references to 50%.

 

(c)          Any Termination Fee due under Section 8.03(b) shall be paid by wire transfer of same-day funds (i) in the case of Section 8.03(b)(i) above, on the Business Day immediately following the date of termination of this Agreement in the case of any such termination by Parent, (ii) in the case of Section 8.03(b)(ii), concurrently with and as a condition to such termination by the Company, and (iii) in the case of Section 8.03(b)(iii) above, on the date of the execution of the Company Acquisition Proposal referred to in Section 8.03(b)(iii) above.

 

(d)          The Company acknowledges and agrees that the agreements contained in Section 8.03(b) and Section 8.03(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not enter into this Agreement.  Accordingly, if the Company fails promptly to pay the amount due pursuant to Section 8.03(b) or Section 8.03(c), and, in order to obtain such payment, Parent commences an Action that results in a judgment in its favor for such payment, the Company shall pay to Parent its costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Action, together with interest on the amount of such payment from the date such payment was required to be made until the date of payment at a rate per annum equal to the prime interest rate published in the Wall Street Journal on the date such interest begins accruing.  Except with respect to any fraud or willful or intentional breach of this Agreement by the Company (subject to Section 8.02), the parties agree that the payment of the Termination Fee shall be the sole and exclusive remedy available to Parent and Merger Sub with respect to this Agreement and the transactions contemplated hereby in the event any such payment becomes due and payable, and, upon payment of the Termination Fee by the Company, the Company, the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives shall have no further liability to Parent and Merger Sub under this Agreement.  Each of the parties acknowledges that the Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate the receiving party in the circumstances in which such Termination Fee is due and payable, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision.  In no event shall the Company be obligated to pay the Termination Fee on more than one occasion.

 

Section 8.04.        Amendment This Agreement may be amended by the parties at any time before or after receipt of the Company Stockholder Approval; provided, however, that after receipt of the Company Stockholder Approval, there shall be made no amendment that by Applicable Law or the rules of any relevant stock exchange requires further approval by the stockholders of the Company without the further approval of such stockholders, and no amendment of this Agreement shall be submitted to be approved by the stockholders of the Company unless required by Applicable Law.  This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.  Notwithstanding anything to the contrary in this Section 8.04 or elsewhere in this Agreement, this sentence of Section 8.04, the proviso of Section 8.05, Section 9.07, Section 9.08(d), Section 9.08(e) and Section 9.11 (and any definition set forth in, or other provision of, this Agreement to the extent that an amendment or modification of such definition or other provision would amend or modify the substance of this sentence of Section 8.04, the proviso of Section 8.05, Section 9.07, Section 9.08(d), Section 9.08(e) or Section 9.11) may not be amended or modified in a manner that would be adverse to any Financing Source (or any Financing Source’s Affiliates or any of its or its Affiliates’ former, current or future general or limited partners, stockholders, managers, members, controlling persons, agents, employees, accountants, consultants, legal counsel, financial advisors or any of the successors or assigns of any of the foregoing (collectively, “Financing Related Parties”)) without the prior written consent of such Financing Source (and any such amendment or modification without such prior written consent shall be null and void).

 

Section 8.05.       Extension; Waiver; Termination At any time prior to the Effective Time, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) waive any inaccuracies in the representations and warranties contained in this Agreement or in any document delivered pursuant to this Agreement, (c) waive compliance with any covenants and agreements contained in this Agreement or (d) waive the satisfaction of any of the conditions contained in this Agreement; provided that there shall be no waiver to this proviso of Section 8.05, the last sentence of Section 8.04, Section 9.07, Section 9.08(d), Section 9.08(e) or Section 9.11 (or any provision of this Agreement to the extent a waiver of such provision would modify the substance of this proviso of Section 8.05, the last sentence of Section 8.04, Section 9.07, Section 9.08(d), Section 9.08(e) or Section 9.11) in a manner that would be adverse to any Financing Source (or its Financing Related Parties) without the prior written consent of such Financing Source (and any such amendment or modification without such prior written consent shall be null and void).  No extension or waiver by the Company or Parent shall require the approval of the stockholders of the Company or Parent, respectively unless such approval is required by Applicable Law or the rules of any relevant stock exchange.  Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.  The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

 

Section 8.06.       Procedure for Termination, Amendment, Extension or Waiver A termination of this Agreement pursuant to Section 8.01, an amendment of this Agreement pursuant to Section 8.04 or an extension or waiver pursuant to Section 8.05 shall, in order to be effective, require, in the case of the Company, Parent or Merger Sub, action by its Board of Directors or the duly authorized designee thereof.  Termination of this Agreement prior to the Effective Time shall not require the approval of the stockholders of either Parent or the Company.

 

 

 

Section 9.01.       Survival None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing, except that covenants and agreements of the parties hereto contained in or made pursuant to this Agreement that by their terms apply or are to be performed in whole or in part after the Closing, shall survive for the period provided in such covenants and agreements, if any, or until fully performed.  This Section 9.01 shall not limit Section 8.02 or any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time.

 

Section 9.02.       Notices All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email (notice deemed given upon transmission so long as there is no return error message or other notification of non-delivery received by the sender) (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.02):

 

(a)

if to the Company, to:

 

870 North Commons Drive

Aurora, IL 60504

Attention:

H. Carol Bernstein

Email:

***@***

 

with a copy (which shall not constitute notice) to:

 

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY  10019

Attention:

Edward D. Herlihy

 Brandon C. Price

Email:

***@***

  ***@***

(b)

if to Parent or Merger Sub, to:

 

129 Concord Road

Billerica, MA

Attention:

General Counsel

Email:

***@***

 

with a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue

Palo Alto, California  94301

Attention:

Kenton J. King

 Mike Ringler

Email:

***@***

  ***@***

 

Section 9.03.       Definitions For purposes of this Agreement:

 

“Action” means any claim, action, charge, suit, petition, arbitration, proceeding, investigation, audit, review or litigation by or before any Governmental Entity.

 

“Affiliate” means with respect to any specific Person, any other Person that, at the time of determination, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.

 

“Anti-Money Laundering Laws” means, to the extent applicable, the financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the money laundering and terrorist financing laws and regulations (including any related licensing or registration requirements) of all jurisdictions in which the Company or any of its Subsidiaries conducts business.

 

“Applicable Law(s)” means with respect to any Person, any federal, foreign, state, municipal or other local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, Order or other similar requirement enacted, adopted, promulgated or applied by a Governmental Entity that is binding upon or applicable to such Person, as the same may be amended from time to time unless expressly specified otherwise in this Agreement.

 

“Business” means the business and operations of the Company and its Subsidiaries.

 

“Business Day” means any day that is not a Saturday, or Sunday or other day on which (i) commercial banks in the City of New York, New York are required by Applicable Law to be closed, (ii) the Secretary of State of the State of Delaware is closed or (iii) the Electronic Data Gathering, Analysis, and Retrieval system maintained by the SEC is closed for filings.

 

“CARES Act” means, collectively, the Coronavirus Aid, Relief, and Economic Security Act or any similar applicable federal, state or local Law, as may be amended, including IRS Notice 2020-65 and the Presidential Memoranda or Executive Order (including the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster issued on August 8, 2020).

 

“Code” shall mean the Internal Revenue Code of 1986.

 

“Collective Bargaining Agreement” means any labor agreement, collective bargaining agreement or any other labor-related agreements or arrangements with any Employee Representative Body.

 

“Company Acceptable Confidentiality Agreement” means a confidentiality agreement with terms and conditions customary for transactions of such type that is no less favorable in the aggregate to the Company than the Confidentiality Agreement (but need not contain any standstill provision).

 

“Company Common Stock” means issued and outstanding shares of common stock, par value $0.001 per share, of the Company.

 

“Company Equity Awards” means Company Stock Options, Company Restricted Shares, Company RSUs, Company DSUs, Company PSUs and Company Cash-Settled Phantom Stock Units.

 

“Company Intellectual Property” means all Intellectual Property owned or purported by the Company to be owned by the Company or any of its Subsidiaries.

 

“Company Material Adverse Effect” means any effect, state, development, change, fact, condition, event, circumstance or occurrence (“Effect”) that, individually or in the aggregate (a) has had or would reasonably be expected to have a material adverse effect on the business, results of operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole or (b) would or would reasonably be expected to prevent, materially impair or materially delay the ability of the Company to consummate the Merger or the other transactions contemplated in this Agreement prior to the End Date; provided, however, in the case of clause (a), that none of the following, and no Effect arising out of, or resulting from, the following, shall constitute or be taken into account, individually or in the aggregate, in determining whether a Company Material Adverse Effect has occurred or may occur: (A) changes generally affecting the industries in which the Company and its Subsidiaries operate; (B) general economic or political conditions (or changes in such conditions) or securities, credit, financial or other capital market conditions (or changes in such conditions), in each case, in the United States or any foreign jurisdiction in which the Company or any of its Subsidiaries operate, including changes in interest or exchange rates; (C) changes in Applicable Law or GAAP (or authoritative interpretation thereof) or in accounting standards, any changes in the interpretation or enforcement of any of the foregoing; (D) changes in general legal, regulatory or political conditions, in each case occurring after the date hereof; (E) changes solely attributable to the announcement or pendency of this Agreement, including the direct impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners, employees or other third parties and including any litigation arising in connection with or relating to this Agreement to the extent addressed in accordance with the requirements of Section 6.10 (provided that, the exceptions in clause (E) shall not apply with respect to any representation or warranty that is intended to address the consequences of the execution or delivery of this Agreement, the performance of obligations hereunder or the consummation of the transactions contemplated hereby); (F) acts of war (whether or not declared), sabotage or terrorism, or any escalation or worsening of any such acts of war (whether or not declared), sabotage or terrorism; (G) volcanoes, tsunamis, pandemics (including COVID-19 and any variants/mutations thereof or any COVID-19 Measures), epidemics, earthquakes, floods, storms, hurricanes, tornados or other natural disasters; (H) any action taken by the Company or its Subsidiaries that is specifically required by this Agreement or with the prior written consent or at the direction of Parent in accordance with this Agreement, or the failure to take any action by the Company or its Subsidiaries if that action is prohibited by this Agreement; (I) changes resulting or arising from the identity of, or any facts or circumstances relating to Parent or any of its Affiliates, (J) changes, in and of itself, in the market price or trading volume of the Company’s Common Stock; or (K) any failure, in and of itself, by the Company to meet any internal or public projections, forecasts, guidance, estimates, milestones, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position (it being understood that the exceptions in clauses (J) and (K) shall not prevent or otherwise affect a determination that the underlying facts or occurrences giving rise or contributing to any such change or failure referred to therein (to the extent not otherwise falling within any of the exceptions provided by clauses (A) through (I) hereof) is, may be taken into account in determining, contributed to or may contribute to, a Company Material Adverse Effect); provided, further, however, that any Effect referred to in clauses (A), (B), (C), (D), (F) or (G) may be taken into account in determining whether or not there has been or may be a Company Material Adverse Effect solely to the extent such effect, change, event, circumstance or occurrence has a material disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, as compared to other participants in the industries in which the Company and its Subsidiaries operate, in which case only the extent of such disproportionate adverse effect (if any) shall be taken into account when determining a “Company Material Adverse Effect.”

 

 “Company Stock Plans” means the 2021 Omnibus Incentive Plan and the 2012 Omnibus Incentive Plan, as amended.

 

“Compliant” means, (a) with respect to the Required Information, that such Required Information, when taken as a whole, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make such Required Information not misleading in the light of the circumstances and (b) with respect to the financial statements of the Company, that such financial statements would be sufficiently current on any day during the applicable Marketing Period to permit (i) a registration statement filed by the Company using such financial statements to be declared effective by the SEC on the last day of the Marketing Period and (ii) the Company’s independent auditors to issue a customary comfort letter (in accordance with its normal practices and procedures and including negative assurance) on the last day of the Marketing Period.

 

“Contract” means any written or oral contract, subcontracts, agreements, leases, licenses, commitments, sale and purchase orders, and other instruments, arrangements or understandings of any kind.

 

“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof or related or associated epidemics, pandemics or disease outbreaks.

 

“COVID-19 Measures” means any Applicable Law or any published requirement, directive, pronouncement, guideline or recommendation issued by any Governmental Entity, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, providing for or contemplating business closures or other reductions, changes to business operations, any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shutdown, closure, sequester or any other Applicable Law by any Governmental Entity in connection with or in response to COVID-19.

 

“Customs & Trade Laws” means all applicable export, import, customs and trade, and anti-boycott Laws administered, enacted or enforced by any Governmental Entity, including but not limited to: (a) the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and the import laws and regulations administered by U.S. Customs and Border Protection; (b) the anti-boycott laws and regulations administered by the U.S. Departments of Commerce and Treasury; and (c) any other similar export, import, anti-boycott, or other trade Laws or programs in any relevant jurisdiction to the extent they are applicable to the Company or any of its subsidiaries.

 

“Directors’ Deferred Compensation Plan” means the Company’s Directors’ Deferred Compensation Plan, as amended and restated on February 25, 2021.

 

“DOJ” means the United States Department of Justice.

 

“Employee Representative Body” means any labor or trade union, labor organization, works council or other employee representative body.

 

“Environmental Laws” means Applicable Laws relating to pollution or the protection of the environment or natural resources including Applicable Laws relating to: (a) the exposure to, or Releases or threatened Releases of, Hazardous Substances; (b) the generation, manufacture, processing, distribution, use, treatment, containment, disposal, storage, transport or handling of Hazardous Substances; or (c) recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Equity Award Exchange Ratio” means the sum of (i) the Exchange Ratio and (ii) the quotient (rounded to the fourth decimal place) of (i) the Cash Consideration divided by (ii) the Parent Trading Price.

 

“Existing Credit Agreement” means that certain Credit Agreement, dated as of November 15, 2018, as amended December 20, 2019, and July 2, 2021, among the Company, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders and other financial institutions from time to time party thereto.

 

“Financing Sources” means the Commitment Parties and each other Person that has committed to provide or otherwise entered into any commitment letter, engagement letter, credit agreement, underwriting agreement, purchase agreement, indenture or other agreement with Parent or Merger Sub or any of their Affiliates in connection with, or that is otherwise acting as an arranger, bookrunner, underwriter, initial purchaser, placement agent, administrative or collateral agent, trustee or a similar representative in respect of, any Financing (including any Alternative Financing).

 

“FTC” means the United States Federal Trade Commission.

 

“GAAP” means United States generally accepted accounting principles.

 

“Governmental Entity” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency, commission or official, including any political subdivision thereof, or any non-governmental self-regulatory agency, commission, authority, arbitration forum or arbitrator.

 

“Hazardous Substance” means any substance or waste that (a) is defined or regulated as “toxic”, “hazardous”, a “pollutant”, a “contaminant” or words of similar meaning and regulatory effect under any applicable Environmental Law, or (b) can form the basis of liability under any applicable Environmental Law, including any petroleum, petroleum products, per- and polyfluoroalkyl substances (including PFAs, PFOA, PFOS, Gen X, and PFBs), polychlorinated biphenyls (PCBs), asbestos and asbestos-containing materials, radon, mold, fungi and other substances, including related precursors and breakdown products.

 

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

 

“Indebtedness” means, with respect to any Person, without duplication, as of the date of determination, all obligations of such Person (a) for borrowed money, whether secured or unsecured, including accrued and unpaid interest, and any prepayment fees or penalties, (b) evidenced by notes, bonds, debentures or similar Contracts or securities, (c) for deferred purchase price of any property (other than ordinary course trade payables), (d) in respect of any lease of real or personal property, which obligations are required to be classified and accounted for under GAAP as capital leases, (e) under derivative contracts and any interest rate and currency agreements, (f) in respect of outstanding letters of credit, and (g) in respect of all guarantees, keepwell or similar arrangements for any of the foregoing.

 

“Intellectual Property” means any of the following, as they exist anywhere in the world, whether registered or unregistered: (i) patents, patentable inventions and other patent rights (including any divisions, continuations, continuations-in-part, reissues, reexaminations and interpretations thereof); (ii) trademarks, service marks, trade dress, trade names, taglines, brand names, logos and corporate names and all goodwill related thereto; (iii) copyrights, mask works and designs; (iv) trade secrets, know-how, inventions, processes, procedures, databases, confidential business information and other proprietary information and rights; (v) proprietary rights in computer software programs, including all source code, object code, specifications, designs and documentation related thereto; and (vi) domain names and internet addresses.

 

“Knowledge” means, with respect to the Company, the actual knowledge after reasonable due inquiry of the individuals set forth on Section 9.03(a) of the Company Disclosure Letter, and, with respect to Parent or Merger Sub, the actual knowledge after reasonable due inquiry of the individuals set forth on Section 9.03(a) of the Parent Disclosure Letter.

 

“Lien” means, with respect to any property or asset, any mortgage, deed of trust, pledge, hypothecation, security, interest, encumbrance, interference, option, right of first refusal, preemptive right, community property interest, claim, lien or restriction of any kind (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

 

“Marketing Period” means the first period of at least fifteen (15) consecutive Business Days, commencing on the first (1st) Business Day after the date of delivery of the Required Information, throughout which (i) Parent shall have the Required Information and the Required Information is Compliant and (ii) if such date is prior to September 15, 2022, the conditions set forth in Section 7.01 and Section 7.02(b) shall have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing, but provided that throughout such period such conditions are and remain capable of being satisfied) and nothing has occurred and no condition exists that would cause any of the other conditions set forth in Section 7.02 to fail to be satisfied assuming the Closing were to be scheduled for any time during such fifteen (15) consecutive Business Day period; provided that if the Company shall in good faith reasonably believe it has provided the Required Information, it may deliver to Parent a written notice to that effect (stating when it believes it completed such delivery), in which case the Marketing Period shall be deemed to have commenced on the date specified in such notice as the date of delivery of the Required Information unless Parent in good faith reasonably believes the Company has not completed the delivery of the Required Information and, within two (2) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with specificity which Required Information the Company has not delivered), in which case (if the Required Information has in fact not been delivered) this proviso shall not be satisfied until the Company has provided all such Required Information specifically set forth in such notice; provided that the Marketing Period shall not be deemed to have commenced if, prior to the completion of such fifteen (15) consecutive Business Day period, (i) the Company’s independent accountants shall have withdrawn their audit opinion with respect to any of the Required Information, in which case, the Marketing Period shall not be eligible to commence (and, for the avoidance of doubt, shall be deemed not to have commenced) unless and until a new audit opinion is issued with respect thereto by the Company’s independent accountants, (ii) the Company has publicly announced any intention to restate any material financial information comprising all or a portion of the Required Information, in which case the Marketing Period shall not be eligible to commence unless and until such restatement has been completed and the relevant Company SEC Documents and Required Information have been amended or the Company has determined that no restatement shall be required in accordance with GAAP, or (iii) any Required Information would not be Compliant at any time during such fifteen (15) consecutive Business Day period (it being understood that if any Required Information provided at the initiation of the Marketing Period ceases to be Compliant at any time during such fifteen (15) consecutive Business Day period, then the Marketing Period shall be deemed not to have commenced); provided that the Marketing Period shall end on any earlier date that is the date on which the any of the following have occurred: (x) the entire Financing has been consummated in accordance with its terms or (y) the commitments in respect of the Bridge Facility (as defined in the Commitment Letter as of the date hereof) have been terminated or reduced to zero; and provided, further that (A) the Marketing Period may not commence prior to January 10, 2022, (B) none of May 31, 2022, July 1, 2022, July 5, 2022, November 23, 2022 or November 25, 2022 shall be considered a Business Day for the purposes of this definition, (C) unless the Marketing Period has been completed on or prior to August 19, 2022, the Marketing Period may not commence prior to September 6, 2022 and (D) unless the Marketing Period has been completed on or prior to December 16, 2022, the Marketing Period may not commence prior to January 3, 2023.

 

 “NASDAQ” means The NASDAQ Stock Market LLC.

 

“Order” means any order, writ, decree, judgment, award, injunction, ruling, settlement or stipulation issued, promulgated, made, rendered or entered into by or with any Governmental Entity (in each case, whether temporary, preliminary or permanent).

 

“Parent Material Adverse Effect” means any Effect that, individually or in the aggregate (a) has had or would reasonably be expected to have a material adverse effect on the business, results of operations or condition (financial or otherwise) of Parent and its Subsidiaries, taken as a whole or (b) would or would reasonably be expected to prevent, materially impair or materially delay the ability of Parent to consummate the Merger or the other transactions contemplated in this Agreement prior to the End Date; provided, however, in the case of clause (a), that none of the following, and no Effect arising out of, or resulting from, the following, shall constitute or be taken into account, individually or in the aggregate, in determining whether a Parent Material Adverse Effect has occurred or may occur: (A) changes generally affecting the industries in which Parent and its Subsidiaries operate; (B) general economic or political conditions (or changes in such conditions) or securities, credit, financial or other capital market conditions (or changes in such conditions), in each case, in the United States or any foreign jurisdiction in which Parent or any of its Subsidiaries operate, including changes in interest or exchange rates; (C) changes in Applicable Law or GAAP (or authoritative interpretation thereof) or in accounting standards, any changes in the interpretation or enforcement of any of the foregoing; (D) changes in general legal, regulatory or political conditions, in each case occurring after the date hereof; (E) changes solely attributable to the announcement or pendency of this Agreement, including the direct impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners, employees or other third parties and including any litigation arising in connection with or relating to this Agreement to the extent addressed in accordance with the requirements of Section 6.10 (provided that, the exceptions in clause (E) shall not apply with respect to any representation or warranty that is intended to address the consequences of the execution or delivery of this Agreement, the performance of obligations hereunder or the consummation of the transactions contemplated hereby); (F) acts of war (whether or not declared), sabotage or terrorism, or any escalation or worsening of any such acts of war (whether or not declared), sabotage or terrorism; (G) volcanoes, tsunamis, pandemics (including COVID-19 and any variants/mutations thereof or any COVID-19 Measures), epidemics, earthquakes, floods, storms, hurricanes, tornados or other natural disasters; (H) any action taken by Parent or its Subsidiaries that is specifically required by this Agreement or with the prior written consent or at the direction of the Company in accordance with this Agreement, or the failure to take any action by Parent or its Subsidiaries if that action is prohibited by this Agreement; (I) changes resulting or arising from the identity of, or any facts or circumstances relating to the Company or any of its Affiliates, (J) changes, in and of itself, in the market price or trading volume of Parent Common Stock; or (K) any failure, in and of itself, by Parent to meet any internal or public projections, forecasts, guidance, estimates, milestones, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position (it being understood that the exceptions in clauses (J) and (K) shall not prevent or otherwise affect a determination that the underlying facts or occurrences giving rise or contributing to any such change or failure referred to therein (to the extent not otherwise falling within any of the exceptions provided by clauses (A) through (I) hereof) is, may be taken into account in determining, contributed to or may contribute to, a Parent Material Adverse Effect); provided, further, however, that any Effect referred to in clauses (A), (B), (C), (D), (F) or (G) may be taken into account in determining whether or not there has been or may be a Parent Material Adverse Effect solely to the extent such effect, change, event, circumstance or occurrence has a material disproportionate adverse effect on Parent and its Subsidiaries, taken as a whole, as compared to other participants in the industries in which Parent and its Subsidiaries operate, in which case only the extent of such disproportionate adverse effect (if any) shall be taken into account when determining a “Parent Material Adverse Effect.”

 

“Parent Stock Plan” means mean the 2020 Stock Plan, the 2010 Stock Plan, as amended, and the Outside Directors’ Stock Option Plan.

 

“Parent Trading Price” means the volume weighted average price per share (calculated to the nearest one-hundredth of one cent) of Parent Common Stock on the NASDAQ, for the consecutive period of ten (10) trading days beginning on the twelfth (12th) trading day immediately preceding the Closing Date and concluding at the close of trading on the second (2nd) trading day immediately preceding the Closing Date, as calculated by Bloomberg Financial LP under the function “VWAP.”

 

“Per Share Cash Equivalent Consideration” means the amount equal to the sum of (x) the Cash Consideration and (y) the product (rounded to the nearest cent) obtained by multiplying (A) the Exchange Ratio by (B) the Parent Trading Price.

 

“Permits” means licenses, franchises, permits, certificates, approvals and authorizations from Governmental Entities.

 

“Permitted Liens” means, collectively, (a) suppliers’, mechanics’, carriers’, workmen’s, repairmen’s, materialmen’s, warehousemen’s, construction and other similar Liens arising or incurred by operation of law or otherwise incurred in the ordinary course of business securing obligations that are not due and payable or which are being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP, (b) Liens for Taxes, utilities and other governmental charges that are not due and payable or which are being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP, (c) requirements and restrictions of zoning, building and other Applicable Laws and municipal by-laws, and development, site plan, subdivision or other agreements with municipalities that do not materially detract from the value of such property or materially interfere with the business of the Company or Parent, as applicable, or their respective Subsidiaries as currently conducted, (d) non-exclusive licenses of rights in Intellectual Property made in the ordinary course of business, consistent with past practices and not in connection with debt for borrowed money, (e) statutory Liens of landlords for amounts not due and payable or which are being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP, (f) deposits made in the ordinary course of business to secure payments of worker’s compensation, unemployment insurance or other types of social security benefits or the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money), public or statutory obligations, and surety, stay, appeal, customs or performance bonds, or similar obligations arising in each case in the ordinary course of business consistent with past practices, (g) Liens in favor of customs and revenue authorities arising as a matter of law and in the ordinary course of business, consistent with past practices, to secure payment of customs duties in connection with the importation of goods, (h) Liens resulting from securities laws, (i) Liens incurred in the ordinary course of business, consistent with past practices, in connection with any purchase money security interests, equipment leases or similar financing arrangements, (j) such other Liens (not securing debt for borrowed money) or imperfections of title that are not material in amount and do not materially detract from the value of or materially impair the existing use of the property affected by such Lien or imperfection of title, (k) Liens that are disclosed on the most recent consolidated balance sheet of the Company or Parent, as applicable, or the notes thereto, included in the Company SEC Documents or the Parent SEC Documents, as applicable, filed prior to the date hereof, (l) Liens (not securing debt for borrowed money) that do not materially detract from the value of such property or interfere in any material respect with the use, operation or occupancy by the Company or Parent, as applicable, or any of their respective Subsidiaries of such property and (m) Liens securing “Obligations” as defined in the Existing Credit Agreement to the extent released on or prior to the Closing Date.

 

“Person” means any natural person, general or limited partnership, corporation, trust, limited liability company, limited liability partnership, firm, association, Governmental Entity or other legal entity.

 

“Regulation S-X” means Regulation S-X promulgated by the SEC as amended and in effect at the time in question.

 

“Regulatory Laws” means the HSR Act, the Sherman Antitrust Act of 1890, the Clayton Act of 1914, the Federal Trade Commission Act of 1914 (in each case, as amended) , and any other federal, state and foreign statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to (i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition or (ii) screen, prohibit, restrict or regulate investments on public order or national security grounds.

 

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing, or arranging for disposal, into the indoor or outdoor environment.

 

“Required Information” shall mean (a)(i) audited consolidated balance sheets and related audited consolidated statements of income (loss), comprehensive income (loss), cash flows and changes in stockholders’ equity of the Company (including the related notes and financial statement schedules thereto) prepared in accordance with GAAP for the two (2) most recently completed fiscal years ended at least sixty (60) days before the start of the Marketing Period and together with audit opinions of the Company’s independent accountants with respect to such audited financial statements, and (ii) unaudited consolidated balance sheets and related unaudited consolidated statements of income, comprehensive income, cash flows and changes in stockholders’ equity of the Company prepared in accordance with GAAP for each subsequent fiscal quarter (and six- or nine-months ended thereof, with respect to the second and third quarters) that ended at least forty (40) days before the start of the Marketing Period and for the comparable quarter and period of the prior fiscal year, and (b) to the extent requested with specificity and in writing, all other pertinent and customary information and data regarding the Business and the Company and its Subsidiaries of the type and form required by Regulation S-X and Regulation S-K under the Securities Act for offerings of debt or equity securities by Parent on a registration statement on Form S-3 (or any successor form) under the Securities Act (other than (x) consolidating and other financial statements and data that would be required by Sections 3-10 and 3-16 of Regulation S-X under the Securities Act, and (y) any information and data required by Item 402(b) of Regulation S-K under the Securities Act and information regarding executive compensation and related party disclosure related to SEC Release Nos.  33-8732A, 34-54302A and IC-27444A) and as otherwise customary for the Financing Sources to receive customary “comfort” (including customary negative assurance comfort) from the Company’s independent accountants; it being understood and agreed that the foregoing provisions of this definition shall not obligate the Company to prepare or provide (1) any pro forma financial statements or adjustments (including regarding any synergies, cost savings, ownership or other post-Closing adjustments) or projections (provided that the Company will reasonably cooperate and assist Parent in its preparation of such materials), (2) risk factors relating to all or any component of the Financing or any Alternative Financing or (3) separate financial statements in respect of the Company’s Subsidiaries.

 

“Restricted Person” means any person or entity identified on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List or the U.S. Department of State’s Debarred List.

 

 “Sanctioned Jurisdiction” means a country or territory that is itself the subject or target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea region).

 

“Sanctioned Person” means any Person subject to Sanctions, including (a) any Person appearing on any list of Persons subject to sanctions maintained by the (i) United States (including without limitation the Department of the Treasury’s Office of Foreign Assets Control or the Department of State), (ii) the European Union, (iii) any European Union member state, (iv) the United Nations, (v) the United Kingdom, or (vi) any other Governmental Entity of a jurisdiction where the Company or any of its Subsidiaries conducts business; (b) any Person located, organized, or resident in a Sanctioned Jurisdiction; or (c) any Person directly or indirectly owned fifty percent or more or controlled, individually or in the aggregate, by one or more Persons described in the foregoing clauses (a) and/or (b).

 

“Sanctions” means all trade, economic or financial sanctions, embargoes, or restrictive measures administered, enacted or enforced by (a) the United States (including without limitation the Department of the Treasury’s Office of Foreign Assets Control or the Department of State), (b) the European Union, (c) any European Union member state, (d) the United Nations, (e) the United Kingdom, or (f) any other Governmental Entity of a jurisdiction where the Company or any of its Subsidiaries conducts business.

 

“SEC” means the United States Securities and Exchange Commission.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations under the Securities Act.

 

“Share Issuance” means the issuance of such number of shares of Parent Common Stock as may be necessary or advisable in connection with the consummation of the Merger pursuant to this Agreement.

 

“Subsidiary” of any specified Person means any other Person of which such first Person (a) (i) owns (either directly or indirectly through one or more other Subsidiaries) (x) a majority of the outstanding equity securities or securities carrying a majority of the voting power in the election of the board of directors or other governing body of such Person, or (y) if there are no such voting interests, 50% or more of the equity interests therein, or (ii) has the right to appoint 50% or more of the directors or managers, and (a) with respect to which entity such first Person is not otherwise prohibited contractually or by other legally binding authority from exercising control.

 

“Tax Returns” means all Tax returns, declarations, statements, estimates, reports, schedules, forms and information returns, any amended Tax return and any other document filed or required to be filed relating to Taxes.

 

“Taxes” means all federal, state, local, and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, capital, sales, transfer, use, payroll, intangible, municipal, employment, severance, withholding, franchise, value added and other taxes, customs, tariffs, imposts, levies, duties, fees or other like assessments or charges of any kind imposed by a Governmental Entity, together with all interest, penalties and additions imposed with respect to such amounts, and, in all cases, whether disputed or not.

 

“Treasury Regulations” shall mean the tax regulations promulgated under the Code.

 

Section 9.04.    Rules of Construction Interpretation of this Agreement (except as specifically provided in this Agreement, in which case such specified rules of construction shall govern with respect to this Agreement) shall be governed by the following rules of construction: (a) words in singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender or neuter as the context requires; (b) references made to an Article, a Section or an Exhibit, such reference shall be to an Article, a Section or an Exhibit of or to this Agreement unless otherwise indicated; (c) the table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (d) any capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning assigned to such term in this Agreement; (e) when the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”; (f) the words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (g) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (h) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms; (i) all pronouns and any variations thereof refer to the masculine, feminine or neuter as the context may require; (j) any agreement, instrument or Applicable Law defined or referred to herein means such agreement, instrument or Applicable Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (k) references to a Person are also to its permitted successors and assigns; (l) unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed references to the lawful money of the United States of America; (m) statements as to the “Subsidiary” or “Subsidiaries” of a party, which statements by their terms address matters only at and as of another specified time, shall be deemed to include only such entities that were Subsidiaries of the party at and as of such specified time; (n) the phrase “ordinary course of business consistent with past practice” means, with respect to the Company or Parent, the ordinary course of business of the Company or Parent, as applicable, consistent with its past practice; provided, that any action taken, or omitted to be taken, by such Company or Parent, as applicable, to comply with any COVID-19 Measures or reasonably in response to COVID-19 or COVID-19 Measures shall be deemed to be in the ordinary course of business and (o) the phrase “made available” shall mean that the information referred to has been physically or electronically delivered to the relevant parties (including material that has been posted, retained and thereby made available through any “data room” (virtual or otherwise)) and shall be deemed to include any documents filed or furnished with the SEC, in each case, on or prior to 12:00 a.m., Pacific Time, on December 14, 2021 (provided that any information made available to the other party after 12:00 a.m., Pacific Time and prior to the execution of this Agreement in response to a direct request of such party shall be deemed “made available” hereunder).

 

Section 9.05.    Severability If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Applicable Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.

 

Section 9.06.        Counterparts This Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement electronically (including portable document format (.pdf)) or by facsimile shall be as effective as delivery of a manually executed counterpart of this Agreement.

 

Section 9.07.       Entire Agreement; No Third-Party Beneficiaries This Agreement and any exhibits, annexes or schedules hereto, including the Company Disclosure Letter and the Parent Disclosure Letter, together with the Confidentiality Agreement, constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties and their Affiliates, or any of them, with respect to the subject matter hereof and thereof, and except for (i) if the Effective Time occurs, the right of the holders of Company Common Stock to receive the Merger Consideration and (ii) the provisions set forth in Section 6.04 of this Agreement, are not intended to and shall not confer upon any person other than the parties hereto any rights or remedies hereunder; provided that the Financing Sources and their respective Financing Related Parties shall be third-party beneficiaries of this Section 9.07 and the last sentence of Section 8.04, the proviso to Section 8.05, Section 9.08(d), Section 9.08(e) and Section 9.11 and shall have the right to consent to any modification of this Section 9.07 and the last sentence of Section 8.04, the proviso to Section 8.05, Section 9.08(d), Section 9.08(e) and Section 9.11 (or of any definition set forth in, or other provision of, this Agreement to the extent the modification thereof would modify the substance of this Section 9.07 and the last sentence of Section 8.04, the proviso to Section 8.05, Section 9.08(d), Section 9.08(e) and Section 9.11) to the extent such modification directly affects their interests.

 

Section 9.08.       Governing Law; Jurisdiction; Waiver of Jury Trial

(a)         This Agreement and all claims or causes of action (whether in contract or in tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts made and performed in such State without giving regard to any conflict of laws provisions that would require or permit the application of the laws of any other jurisdiction.

 

(b)         The parties hereto hereby irrevocably submit to the exclusive jurisdiction of any federal or state court located within the State of Delaware over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto may be heard and determined in such courts.  The parties hereby irrevocably waive, to the fullest extent permitted by Applicable Law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute.  Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(c)         Each of the parties hereto hereby irrevocably and unconditionally consents to service of process in the manner provided for notices in Section 9.02.  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

 

(d)         Notwithstanding anything herein to the contrary, each of the parties hereto (i) agrees that it will not bring or support, or permit any of its controlled Affiliates to bring or support, any action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Financing Source or any Financing Related Party in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including any dispute arising out of or relating in any way to the Financing or the performance thereof (any of the foregoing being referred to as a “Financing Source Proceeding”), in any forum other than any federal court of the United States of America located in, or, if that court does not have subject matter jurisdiction, in any state court located in, in each case, the Borough of Manhattan in the City of New York, (ii) agrees that any Financing Source Proceeding shall be subject to the exclusive jurisdiction of such courts, (iii) irrevocably and unconditionally submits itself and its property with respect to any Financing Source Proceeding to the exclusive jurisdiction of such courts, (iv) irrevocably and unconditionally waives any objection to the laying of venue of any Financing Source Proceeding brought in any such court or any claim that any Financing Source Proceeding brought in any such court has been brought in an inconvenient forum, (v) agrees that any Financing Source Proceeding shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed in such State without giving regard to any conflict of laws provisions that would require or permit the application of the laws of any other jurisdiction and (vi) agrees that service of process upon such Person in any Financing Source Proceeding shall be effective if notice is given in accordance with Section 9.02.

 

(e)         EACH PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY DISPUTE DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY FINANCING SOURCE PROCEEDING INVOLVING THE FINANCING SOURCES OR ANY FINANCING RELATED PARTY) OR ANY TRANSACTION CONTEMPLATED HEREBY.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF A DISPUTE, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.08.

 

Section 9.09.        Assignment  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of law or otherwise, by any of the parties hereto without the prior written consent of the other parties hereto; provided that Parent and Merger Sub may grant a security interest in, and collaterally assign, any of their rights under this Agreement in connection with the Financing.  No assignment by any party shall relieve such party of any of its obligations hereunder.  Subject to the immediately preceding two sentences, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  Any purported assignment not permitted under this Section 9.09 shall be null and void.

 

Section 9.10.        Specific Enforcement  Each party hereto acknowledges and agrees that if a party fails to perform its obligations in accordance with their specific terms or otherwise breaches this Agreement it would cause irreparable damage to the other parties hereto and that no party hereto will have an adequate remedy at law.  Therefore, it is agreed that each party shall be entitled, without the requirement of posting a bond or other security, to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement.  Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any party may have under this Agreement or otherwise.

 

Section 9.11.        No Recourse to Financing Sources  Notwithstanding anything herein to the contrary, the Company agrees, on behalf of itself and its Subsidiaries, that the Financing Sources and each of their respective Financing Related Parties, in their capacities as such, shall be subject to no liability or claims to the Company or its Subsidiaries in connection with the Financing or in any way relating to this Agreement or any of the transactions contemplated hereby or thereby, whether at law, in equity, in contract, in tort or otherwise.

 

 

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IN WITNESS WHEREOF, the Company, Parent and Merger Sub have duly executed this Agreement, all as of the date first written above.

 

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