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Agreement And Plan Of Merger

Agreement and Plan of Merger

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 This Agreement and Plan of Merger involves

PRESS GANEY HOLDINGS, INC. | EMERALD BIDCO, INC | Emerald TopCo, Inc | Press Ganey Holdings, Inc

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Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware     Date: 8/9/2016
Industry: Business Services     Law Firm: Latham Watkins;Simpson Thacher     Sector: Services

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Exhibit 2.1

 

AGREEMENT AND PLAN OF MERGER

 

by and among

 

EMERALD TOPCO, INC.,

 

EMERALD BIDCO, INC.

 

and

 

PRESS GANEY HOLDINGS, INC.

 

Dated as of August 9, 2016

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE 1 THE MERGER

2

 

 

 

1.1

The Merger

2

1.2

Closing and Effective Time of the Merger

3

 

 

 

ARTICLE 2 CONVERSION OF SECURITIES IN THE MERGER

4

 

 

 

2.1

Conversion of Securities

4

2.2

Payment for Securities; Surrender of Certificates

4

2.3

Dissenting Shares

7

2.4

Treatment of Options and Restricted Stock

8

2.5

Withholding Rights

9

2.6

Repayment of Funded Debt

9

 

 

 

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY

9

 

 

 

3.1

Corporate Organization

10

3.2

Capitalization

10

3.3

Authority; Execution and Delivery; Enforceability

11

3.4

No Conflicts

12

3.5

SEC Documents; Financial Statements; Undisclosed Liabilities

13

3.6

Absence of Certain Changes or Events

15

3.7

Information Supplied

15

3.8

Legal Proceedings

15

3.9

Compliance with Laws and Orders

15

3.10

Permits

16

3.11

Employee Benefit Plans

17

3.12

Employee and Labor Matters

18

3.13

Environmental Matters

19

3.14

Real Property; Title to Assets

19

3.15

Tax Matters

20

3.16

Material Contracts

21

3.17

Intellectual Property

23

3.18

Broker’s Fees

24

3.19

Opinion of Financial Advisor

24

3.20

Government Contracts

24

3.21

Related Person Transactions

25

3.22

No Other Representations or Warranties

25

 

 

 

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

26

 

 

 

4.1

Corporate Organization

26

4.2

Authority, Execution and Delivery; Enforceability

26

 

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4.3

No Conflicts

26

4.4

Litigation

27

4.5

Financing

27

4.6

Termination Equity Commitment Letter

28

4.7

Proxy Statement; Other Information

28

4.8

Ownership of Company Capital Stock

29

4.9

Solvency

29

4.10

Ownership of Parent and Merger Sub

29

4.11

Brokers

29

4.12

No Other Representations and Warranties; Non-Reliance

29

 

 

 

ARTICLE 5 COVENANTS

30

 

 

 

5.1

Conduct of Business by the Company Pending the Closing

30

5.2

Access to Information; Confidentiality

33

5.3

No Solicitation

33

5.4

SEC Filings; Other Actions

38

5.5

Appropriate Action; Consents; Filings

40

5.6

Certain Notices

42

5.7

Public Announcements

42

5.8

Employee Benefit Matters

43

5.9

Indemnification

44

5.10

Financing

46

5.11

Debt Financing Cooperation

47

5.12

Parent Agreements Concerning Merger Sub

50

5.13

Takeover Statutes

50

5.14

Section 16 Matters

50

5.15

Stockholder Litigation

50

5.16

Stock Exchange Delisting

50

 

 

 

ARTICLE 6 CONDITIONS TO CONSUMMATION OF THE MERGER

51

 

 

 

6.1

Conditions to Obligations of Each Party Under This Agreement

51

6.2

Conditions to Obligations of the Company Under This Agreement

51

6.3

Conditions to Obligations of Parent and Merger Sub Under This Agreement

51

6.4

Frustration of Closing Conditions

52

 

 

 

ARTICLE 7 TERMINATION, AMENDMENT AND WAIVER

52

 

 

 

7.1

Termination

52

7.2

Effect of Termination

54

7.3

Company Termination Fee

55

7.4

Parent Termination Fee

56

7.5

Limitation on Recourse

58

7.6

Amendment

59

7.7

Waiver

59

 

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ARTICLE 8 GENERAL PROVISIONS

59

 

 

 

8.1

Non-Survival of Representations and Warranties

59

8.2

Fees and Expenses

59

8.3

Notices

59

8.4

Certain Definitions

61

8.5

Terms Defined Elsewhere

70

8.6

Headings

73

8.7

Severability

73

8.8

Entire Agreement

73

8.9

Assignment

74

8.10

No Third Party Beneficiaries

74

8.11

Mutual Drafting; Interpretation

74

8.12

Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury

74

8.13

Counterparts

76

8.14

Specific Performance

76

 

 

 

Exhibit A

Form of Voting Agreement

 

Exhibit B

Form of Certificate of Incorporation of Surviving Corporation

 

Exhibit C

Form of Bylaws of Surviving Corporation

 

 

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AGREEMENT AND PLAN OF MERGER

 

This AGREEMENT AND PLAN OF MERGER, dated as of August 9, 2016 (this “ Agreement ”), is made by and among Emerald TopCo, Inc., a Delaware corporation (“ Parent ”), Emerald BidCo, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“ Merger Sub ”), and Press Ganey Holdings, Inc., a Delaware corporation (the “ Company ”).  All capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 8.4 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.

 

RECITALS

 

A.                                     The Company, Parent and Merger Sub desire to effect the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation (the “ Merger ”) on the terms and subject to the conditions set forth in this Agreement and in accordance with the General Corporation Law of the State of Delaware, as amended (the “ DGCL ”), pursuant to which each share of common stock, par value $0.01 per share, of the Company (each, a “ Share ” and collectively, the “ Shares ”) issued and outstanding shall be converted into the right to receive $40.50 in cash, subject to the terms and conditions of this Agreement.

 

B.                                     The Board of Directors of Merger Sub has, upon the terms and subject to the conditions set forth herein, approved and declared it advisable for Merger Sub to enter into this Agreement and consummate the transactions contemplated hereby, including the Merger.

 

C.                                     The Board of Directors of Parent has, upon the terms and subject to the conditions set forth herein, approved this Agreement and the transactions contemplated hereby, including the Merger, and Parent, as the sole stockholder of Merger Sub, has duly executed and delivered to Merger Sub and the Company a written consent, to be effective by its terms immediately following execution of this Agreement, adopting this Agreement.

 

D.                                     The Board of Directors of the Company (the “ Company Board ”) has, upon the terms and subject to the conditions set forth herein, (i) determined that the transactions contemplated by this Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved, adopted and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (iii) directed that this Agreement be submitted to the stockholders of the Company for its adoption, and (iv)  recommended that the Company’s stockholders adopt this Agreement.

 

E.                                      Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

 

F.                                       Concurrently with the execution of this Agreement and as a condition and inducement to Parent’s and Merger Sub’s willingness to enter into this Agreement, certain stockholders of the Company and Parent have entered into an agreement, dated as of the date of this Agreement, in the form attached hereto as Exhibit A , pursuant to which such stockholders have, among other things, agreed to vote all of the Shares that such stockholders own in favor of

 



 

the adoption of this Agreement, upon the terms and subject to the conditions set forth therein (the “ Voting Agreement ”).

 

G.                                     Concurrently with the execution of this Agreement, Parent has delivered to the Company the Termination Equity Commitment Letter (the “ Termination Equity Commitment Letter ”) of EQT VII (No. 1) Limited Partnership and EQT VII (No. 2) Limited Partnership (the “ Equity Investors ”), dated as of the date hereof, and pursuant to which the Equity Investors have committed to provide funds for the payment and performance of certain of Parent’s and Merger Sub’s obligations under this Agreement, on the terms and subject to the conditions set forth in the Termination Equity Commitment Letter.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing, and the covenants, premises, representations and warranties and agreements contained in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties to this Agreement agree as follows:

 

ARTICLE 1
THE MERGER

 

1.1                                The Merger .

 

(a)                                  Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company.  As a result of the Merger, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger (the “ Surviving Corporation ”).  The Merger shall be effected pursuant to the DGCL and shall have the effects set forth in this Agreement and the applicable provisions of the DGCL.  Without limiting the generality of the foregoing, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all of the debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.  The Merger and other transactions contemplated by this Agreement and the Voting Agreement are referred to herein as the “ Transactions ”.

 

(b)                                  At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other Person, the certificate of incorporation of the Company shall be amended so as to read in its entirety in the form set forth as Exhibit B hereto, and as so amended shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law.  In addition, the Company and the Surviving Corporation shall take all necessary action such that, at the Effective Time, the bylaws of the Company shall be amended so as to read in their entirety in the form set forth as Exhibit C hereto, and as so amended shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law.

 

(c)                                   At the Effective Time, by virtue of the Merger and without the necessity of further action by the Company or any other person, the directors of Merger Sub

 

2



 

immediately prior to the Effective Time or such other individuals designated by Parent as of the Effective Time shall become the directors of the Surviving Corporation, each to hold office, from and after the Effective Time, in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation and applicable Law.  The officers of the Company immediately prior to the Effective Time, from and after the Effective Time, shall continue as the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation and applicable Law.

 

(d)                                  If, at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

 

1.2                                Closing and Effective Time of the Merger .  The closing of the Merger (the “ Closing ”) will take place at 9:00 a.m., local time, on the third Business Day after satisfaction or waiver of all of the applicable conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions at the Closing), at the offices of Latham & Watkins LLP, John Hancock Tower, 200 Clarendon Street, Boston, Massachusetts 02116, unless another time, date or place is agreed to in writing by the parties hereto; provided , however , that if the Marketing Period has not ended at the time of the satisfaction or waiver of the conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing), the Closing shall occur on the earlier to occur of (a) a date during the Marketing Period specified by Parent on no less than three (3) Business Days’ notice to the Company and (b) the first Business Day following the end of the Marketing Period (subject, in each case, to the satisfaction or waiver of the conditions set forth in Article 6 for the Closing as of the date determined pursuant to this proviso).  The date on which the Closing is to occur pursuant to this Section 1.2 is referred to as the “ Closing Date ”.  On the Closing Date, or on such other date as Parent and the Company may agree to, Merger Sub or the Company shall cause a certificate of merger (the “ Certificate of Merger ”), to be executed and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and shall make all other filings required under the DGCL.  The Merger shall become effective at the time the Certificate of Merger shall have been duly filed with the Secretary of State of the State of Delaware, or such later date and

 

3



 

time as is agreed upon by the parties and specified in the Certificate of Merger (such date and time referred to herein as the “ Effective Time ”).

 

ARTICLE 2
CONVERSION OF SECURITIES IN THE MERGER

 

2.1                                Conversion of Securities .  At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of any of the following securities:

 

(a)                                  Conversion of Shares .  Each Share issued and outstanding immediately prior to the Effective Time, other than Shares to be cancelled or converted pursuant to Sections 2.1(b)  or 2.4(b)  or Dissenting Shares, shall be converted automatically only into the right to receive $40.50 per Share (the “ Merger Consideration ”), payable net to the holder in cash, without interest, subject to any withholding of Taxes required by applicable Law, upon surrender of the Certificates or Book-Entry Shares in accordance with Section 2.2 . As of the Effective Time, all such Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and shall thereafter represent only the right to receive the Merger Consideration, without interest, to be paid in accordance with Section 2.2 .

 

(b)                                  Cancellation of Treasury Shares and Parent-Owned Shares . Each Share held by the Company as treasury stock or held directly by Parent or Merger Sub, in each case, immediately prior to the Effective Time, shall automatically be cancelled and shall cease to exist, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.  Each Share held by any direct or indirect wholly owned Subsidiary of the Company or of Parent (other than Merger Sub), in each case, immediately prior to the Effective Time, shall automatically be converted into such number of shares of common stock of the Surviving Corporation so as to maintain the same relative ownership percentages (such Shares in this clause (b), “ Cancelled Shares ”).

 

(c)                                   Merger Sub Equity Interests .  All outstanding Equity Interests of Merger Sub held immediately prior to the Effective Time shall be converted into and become (in the aggregate) one share of newly and validly issued, fully paid and non-assessable shares of common stock of the Surviving Corporation.

 

2.2                                Payment for Securities; Surrender of Certificates .

 

(a)                                  Paying Agent .  At or prior to the Effective Time, Parent shall designate a reputable bank or trust company to act as the paying agent (the identity and terms of designation and appointment of which shall be reasonably acceptable to the Company) for purposes of effecting the payment of the Merger Consideration in connection with the Merger (the “ Paying Agent ”).  Parent shall pay, or cause to be paid, the fees and expenses of the Paying Agent.  At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent the aggregate Merger Consideration to which holders of Shares (other than Cancelled Shares or Dissenting Shares) shall be entitled at the Effective Time pursuant to Section 2.1 .  In the event such deposited funds are insufficient to make the payments contemplated pursuant to Section 2.1 (other than in respect of Cancelled Shares or Dissenting

 

4



 

Shares), Parent shall promptly deposit, or cause to be deposited, with the Paying Agent such additional funds to ensure that the Paying Agent has sufficient funds to make such payments.  With respect to any Dissenting Shares, Parent shall only be required to deposit, or cause to be deposited, with the Paying Agent cash sufficient to pay the Merger Consideration in exchange for any Dissenting Shares, at or prior to the Effective Time, if the holder thereof fails to perfect or otherwise waives, withdraws or loses his right to appraisal under Section 262 of the DGCL or other applicable Law; provided , however , that Parent shall, after the Effective Time, promptly deposit, or cause to be deposited, with the Paying Agent cash sufficient to pay the Merger Consideration in exchange for any Dissenting Shares to the extent the holder thereof waives, withdraws or otherwise loses his right to appraisal under Section 262 of the DGCL after the Effective Time.  Such funds shall be invested by the Paying Agent as directed by Parent, pending payment thereof by the Paying Agent to the holders of the Shares (other than Cancelled Shares or Dissenting Shares) in accordance with this Section 2.2 ; provided , however , that any such investments shall be in obligations of, or guaranteed by, the United States government or rated A-1 or P-1 or better by Moody’s Investor Service, Inc. or Standard & Poor’s Corporation, respectively.  Earnings from such investments shall be the sole and exclusive property of the Surviving Corporation, and no part of such earnings shall accrue to the benefit of holders of Shares.  Notwithstanding anything in this Agreement to the contrary, an aggregate amount of $50 million of the aggregate Merger Consideration that would otherwise be paid to the holders of the Subject Shares (as defined in the Voting Agreement) in accordance with Section 2.2(b)  shall not be deposited with the Paying Agent and shall be distributed without interest in accordance with the terms set forth on Schedule I hereto.  Parent hereby covenants and agrees to cause the Surviving Corporation to make the distributions referenced in the immediately preceding sentence in accordance with the terms set forth on Schedule I hereto.

 

(b)                                  Procedures for Surrender .

 

(i)                                      Certificates .  As soon as practicable after the Effective Time (and in no event later than three (3) Business Days after the Effective Time), the Surviving Corporation shall cause the Paying Agent to mail to each Person that was, immediately prior to the Effective Time, a holder of record of Shares represented by certificates (the “ Certificates ”), which Shares were automatically converted only into the right to receive the Merger Consideration at the Effective Time pursuant to this Agreement:  (A) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent, and shall otherwise be in such form as Parent and the Paying Agent shall reasonably agree; and (B) instructions for effecting the surrender of the Certificates (or affidavits of loss in lieu of the Certificates as provided in Section 2.2(e) ) in exchange for payment of the Merger Consideration.  Upon surrender of a Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 2.2(e) ) to the Paying Agent or to such other agent or agents as may be appointed by Parent, and upon delivery of a letter of transmittal, duly executed and in proper form, with respect to such Certificates, the holder of such Certificates shall be entitled to receive the Merger Consideration for each Share formerly represented by such Certificates (after giving effect to any required Tax withholdings as provided in Section 2.5 ), and any Certificate so surrendered shall forthwith be cancelled.  If payment of the Merger Consideration is to be made to a Person other than the Person in whose name any surrendered Certificate is registered, it shall be a condition precedent of payment that the Certificate so surrendered shall be properly endorsed or shall be

 

5



 

otherwise in proper form for transfer, and the Person requesting such payment shall have paid any transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate so surrendered and shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not required to be paid.  No interest will be paid or accrued on any amount payable upon due surrender of the Certificates.  Until surrendered as contemplated hereby, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration in cash as contemplated by this Agreement, except for Certificates representing Shares to be cancelled or converted pursuant to Sections 2.1(b), 2.1(c)  or 2.4(b)  and Certificates representing Shares that are Dissenting Shares, which Dissenting Shares shall be deemed to represent the right to receive payment of the fair value of such Shares in accordance with and to the extent provided by Section 262 of the DGCL so long as the holder of such Dissenting Shares does not withdraw his, her or its demand for appraisal of such Dissenting Shares or otherwise lose appraisal rights, in each case in accordance with the DGCL.

 

(ii)                                   Book-Entry Shares .  Notwithstanding anything to the contrary contained in this Agreement, no holder of non-certificated Shares represented by book-entry (“ Book-Entry Shares ”) shall be required to deliver a Certificate or, in the case of holders of Book-Entry Shares held through The Depository Trust Company, an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant to Section 2.1(a) .  In lieu thereof, each holder of record of one or more Book-Entry Shares held through The Depository Trust Company whose Shares were converted automatically only into the right to receive the Merger Consideration shall automatically upon the Effective Time be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver to The Depositary Trust Company or its nominee as promptly as practicable after the Effective Time, in respect of each such Book-Entry Share a cash amount in immediately available funds equal to the Merger Consideration (after giving effect to any required Tax withholdings as provided in Section 2.5 ), and such Book-Entry Shares of such holder shall be cancelled.  As soon as practicable after the Effective Time (and in no event later than three (3) Business Days after the Effective Time), the Surviving Corporation shall cause the Paying Agent to mail to each Person that was, immediately prior to the Effective Time, a holder of record of Book-Entry Shares not held through The Depository Trust Company:  (A) a letter of transmittal, which shall be in such form as Parent and the Paying Agent shall reasonably agree; and (B) instructions for returning such letter of transmittal in exchange for the Merger Consideration.  Upon delivery of such letter of transmittal, in accordance with the terms of such letter of transmittal, duly executed, the holder of such Book-Entry Shares shall be entitled to receive in exchange therefor a cash amount in immediately available funds equal to the Merger Consideration (after giving effect to any required Tax withholdings as provided in Section 2.5 ), and such Book-Entry Shares shall at the Effective Time be cancelled.  Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered.  No interest will be paid or accrued on any amount payable upon due surrender of Book-Entry Shares.  Until paid or surrendered as contemplated hereby, each Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration in cash as contemplated by this Agreement, except for Book-Entry Shares representing Shares to be cancelled or converted pursuant to Sections 2.1(b), 2.1(c)  or 2.4(b)  and Book-Entry Shares representing Shares that are Dissenting Shares, which Dissenting Shares shall be deemed to represent the right to receive payment of the

 

6



 

fair value of such Shares in accordance with and to the extent provided by Section 262 of the DGCL so long as the holder of such Dissenting Shares does not withdraw his, her or its demand for appraisal of such Dissenting Shares or otherwise lose appraisal rights, in each case in accordance with the DGCL.

 

(c)                                   Transfer Books; No Further Ownership Rights in Shares .  At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company.  From and after the Effective Time, the holders of Certificates and Book-Entry Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided for herein or by applicable Law.  If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.

 

(d)                                  Termination of Fund; Abandoned Property; No Liability .  Any portion of the funds (including any interest received with respect thereto) made available to the Paying Agent that remains unclaimed by the holders of Certificates or Book-Entry Shares on the first anniversary of the Effective Time will be returned to the Surviving Corporation or an affiliate thereof designated by the Surviving Corporation, upon demand, and any such holder who has not tendered its Certificates or Book-Entry Shares for the Merger Consideration in accordance with Section 2.2(b)  prior to such time shall thereafter look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) for delivery of the Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law, in respect of such holder’s surrender of their Certificates or Book-Entry Shares and compliance with the procedures in Section 2.2(b) .  Any Merger Consideration remaining unclaimed by the holders of Certificates or Book-Entry Shares immediately prior to such time as such amounts would otherwise escheat to, or become property of, any Governmental Entity will, to the extent permitted by applicable Law, become the property of the Surviving Corporation or an affiliate thereof designated by the Surviving Corporation, free and clear of any claim or interest of any Person previously entitled thereto.  Notwithstanding the foregoing, none of Parent, Merger Sub, the Surviving Corporation, the Paying Agent or their respective affiliates will be liable to any holder of a Certificate or Book-Entry Shares for Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

 

(e)                                   Lost, Stolen or Destroyed Certificates .  In the event that any Certificates shall have been lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, the Merger Consideration payable in respect thereof pursuant to Section 2.1(a) .  Parent may, in its reasonable discretion and as a condition precedent to the payment of such Merger Consideration, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in a reasonable sum as it may reasonably direct as indemnity against any claim that may be made against Parent, the Company, Merger Sub, the Surviving Corporation or the Paying Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.

 

2.3                                Dissenting Shares .  Notwithstanding anything in this Agreement to the contrary (but subject to the provisions of this Section 2.3 ), Shares outstanding immediately prior

 

7



 

to the Effective Time and held by a holder who is entitled to demand and has properly demanded appraisal for such Shares in accordance with, and who complies in all respects with, Section 262 of the DGCL (such Shares, the “ Dissenting Shares ”) shall not be converted into the right to receive the Merger Consideration.  At the Effective Time, all Dissenting Shares shall be cancelled and cease to exist, and the holders of Dissenting Shares shall only be entitled to the rights granted to them under Section 262 of the DGCL.  If the Merger is completed and any such holder fails to perfect or otherwise waives, withdraws or loses his right to appraisal under Section 262 of the DGCL or other applicable Law, then the right of such holder to be paid the fair value of such Dissenting Shares in accordance with and as set forth in Section 262 of the DGCL shall cease and such Dissenting Shares shall be deemed to have been converted, as of the Effective Time, into and shall be exchangeable solely for the right to receive the Merger Consideration, without interest and subject to any withholding of Taxes required by applicable Law.  The Company shall give Parent prompt notice of any demands received by the Company for appraisal of Shares and any other instruments served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands.  Prior to the Effective Time, the Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to, or settle or compromise, any such demands, or approve any withdrawal of any such demands, or agree to do any of the foregoing.

 

2.4                                Treatment of Options and Restricted Stock .

 

(a)                                  Treatment of Options .  At the Effective Time, except as otherwise agreed to in writing between a holder and the Parent, each option to purchase Shares (each a “ Company Option ”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall automatically and without any required action on the part of the holder thereof, vest and be cancelled and shall only entitle the holder of such Company Option to receive (without interest) an amount in cash equal to the product of (x) the total number of Shares subject to the Company Option multiplied by (y) the excess, if any, of the Merger Consideration over the per-share exercise price of such Company Option, less Taxes required to be withheld with respect to such payment under applicable Law; provided that any such Company Option with respect to which the per-share exercise price subject thereto is equal to or greater than the Merger Consideration shall be canceled in exchange for no consideration.  The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay to the holders of Company Options the cash payments described in this Section 2.4(a)  as soon as practicable, but not later than five Business Days following the Closing Date.

 

(b)                                  Treatment of Restricted Stock .  At the Effective Time, except as otherwise agreed to in writing between a holder and the Parent, each Share granted under the Company Equity Plan as restricted stock (each, a “ Company Restricted Share ”) that is outstanding and unvested immediately prior to the Effective Time shall, (i) if subject solely to time based vesting conditions, vest and entitle the holder of such Company Restricted Share to receive the consideration payable with respect to such Share in accordance with Section 2.1(a) , and (ii) if subject to performance-based vesting conditions (a “ Company Performance Award ”) vest as to the Target Number Restricted Shares (within the meaning of the agreement governing the applicable Company Performance Award), and entitle the holder thereof to receive, in respect of each vested share subject to the Company Performance Award, the

 

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consideration payable with respect to such Share in accordance with Section 2.1(a) . For the avoidance of doubt any Shares subject to a Company Performance Award that do not vest pursuant to the foregoing shall, at the Effective Time, be cancelled and forfeited without any payment thereon. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay to the holders of Company Restricted Shares the cash payments described in this Section 2.4(b)  as soon as practicable, but not later than five Business Days following the Closing Date.

 

(c)                                   Termination of Company Equity Plans .  As of the Effective Time, the Press Ganey Holdings, Inc. 2015 Incentive Award Plan (the “ Company Equity Plan ”) shall be terminated (other than with respect to the payments required to be made under this Section 2.4 ) and no further Company Restricted Shares, Company Options, Equity Interests or other rights with respect to Shares shall be granted thereunder.

 

(d)                                  Board Actions .  Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) shall adopt appropriate resolutions and take such other actions as are reasonably necessary to effect the transactions described in this Section 2.4 .

 

2.5                                Withholding Rights .  The Company, Parent, Merger Sub, the Surviving Corporation and the Paying Agent, as the case may be, shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement, such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, the rules and regulations promulgated thereunder or any other provision of applicable Law.  To the extent that amounts are so deducted or withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.

 

2.6                                Repayment of Funded Debt .  (a) At the Closing, and subject to the other terms and conditions set forth in this Agreement, (i) Parent shall make available to the Company, or pay directly, an amount in cash sufficient to pay the aggregate outstanding Funded Debt and (ii) the Company, if such amount is not paid directly by Parent, shall apply such cash to repay the Funded Debt, and (b) at least three (3) Business Days prior to Closing, the Company shall cause the applicable agent under the Credit Agreement to deliver to Parent a copy of a payoff letter (the “ Payoff Letter ”) evidencing the satisfaction of all liabilities under the Credit Agreement (other than any Continuing Obligations) upon receipt of the amounts set forth in such Payoff Letter and including a release in customary form of all Liens with respect to the capital stock, property and assets of the Company and its Subsidiaries securing the obligations under the Credit Agreement.

 

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

Except (a) as set forth in the disclosure schedule delivered by the Company to Parent and Merger Sub (the “ Company Disclosure Schedule ”) prior to the execution of this Agreement (with specific reference to the representations and warranties in this Article 3 to which the information in such schedule relates; provided , that, disclosure in the Company Disclosure Schedule as to a specific representation or warranty shall qualify any other sections of

 

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this Agreement to the extent (notwithstanding the absence of a specific cross reference) it is reasonably apparent that such disclosure relates to such other sections), and (b) as otherwise disclosed or identified in the Company SEC Documents filed prior to the date hereof (other than any forward-looking disclosures contained in the “Forward Looking Statements” and “Risk Factors” sections of the Company SEC Documents and any other disclosures contained or referenced therein to the extent they are similarly predictive, cautionary or forward-looking in nature), the Company hereby represents and warrants to Parent and Merger Sub as follows:

 

3.1                                Corporate Organization .  Each of the Company and its Subsidiaries is a corporation or other entity duly organized, validly existing and, to the extent applicable, in good standing under the laws of the jurisdiction of its organization and has the requisite corporate or other entity power and authority to own or lease all of its properties, rights and assets and to carry on its business as it is now being conducted.  Each of the Company and its Subsidiaries is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties, rights and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified, has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.  The copies of the Amended and Restated Certificate of Incorporation (the “ Company Charter ”) and Amended and Restated Bylaws (the “ Company Bylaws ”) of the Company, as most recently filed with the Company SEC Documents prior to the date of this Agreement, are true, complete and correct copies of such documents as in effect as of the date of this Agreement.  The Company is not in violation of any of the provisions of the Company Charter or the Company Bylaws.

 

3.2                                Capitalization .

 

(a)                                  The authorized capital stock of the Company consists of three hundred fifty million (350,000,000) Shares and fifty million (50,000,000) shares of preferred stock, par value $0.01 per share (“ Company Preferred Stock ”).  As of August 5, 2016, (i) 53,045,649 Shares (other than treasury shares and Company Restricted Shares and Legacy Restricted Shares) were issued and outstanding, all of which were validly issued and fully paid, nonassessable and free of preemptive rights, (ii) no Shares were held in the treasury of the Company or by its Subsidiaries, (iii) 3,939,807 Shares are available for issuance under the Company Equity Plan, 829,523 are subject to Company Options outstanding as of such date, 2,119,480 are unvested Company Restricted Shares outstanding as of such date and 370,679 are unvested restricted Shares not issued pursuant to the Company Equity Plan (such restricted Shares, “ Legacy Restricted Shares ”) outstanding as of such date and (iv) no shares of Company Preferred Stock were issued and outstanding.  Except for unvested Company Restricted Shares, the Legacy Restricted Shares and Company Options to purchase not more than 3,319,682 Shares, there are no options, warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound relating to the issued or unissued capital stock or other Equity Interests of the Company, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating the Company to issue or sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other

 

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Equity Interests in, the Company.  Since July 29, 2016 and prior to the date of this Agreement, except for the issuance of Shares under the Company Equity Plan in accordance with its terms, the Company has not issued any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock or other Equity Interests, other than those shares of capital stock reserved for issuance described in this Section 3.2(a)Section 3.2(a)  of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of the prices at which each outstanding Company Option may be exercised under the Company Equity Plan and the number of Company Options, Company Restricted Shares and unvested Legacy Restricted Shares outstanding; provided , however , that for the purposes of such list, all references to the “Effective Date” in the definition of the foregoing terms shall be replaced by “date hereof”.  All Shares subject to issuance under the Company Equity Plan, upon issuance prior to the Effective Time on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights.

 

(b)                                  Except as set forth in Section 3.2(b)  of the Company Disclosure Schedule, there are no outstanding obligations of the Company or any of its Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redemption or disposition of, or containing any right of first refusal or right of first offer with respect to, (iv) requiring the registration for sale of, or (v) granting any preemptive or antidilutive right with respect to, any Shares or any capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries. The Company does not have outstanding bonds, debentures, notes or other obligations which have the right to vote with the holders of Shares on any matter.

 

(c)                                   Section 3.2(c)  of the Company Disclosure Schedule sets forth a true and complete list of all of the Subsidiaries of the Company and the authorized, issued and outstanding Equity Interests of each such Subsidiary.  None of the Company or any of its Subsidiaries holds an Equity Interest in any other Person.  Each outstanding share of capital stock of or other Equity Interest in each Subsidiary of the Company is duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights and is owned, beneficially and of record, by the Company or one or more of its wholly-owned Subsidiaries free and clear of all Liens.  There are no options, warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character to which any Subsidiary of the Company is a party or by which any Subsidiary of the Company is bound relating to the issued or unissued capital stock or other Equity Interests of such Subsidiary, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating any Subsidiary of the Company to issue or sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other Equity Interests in, such Subsidiary.  There are no outstanding obligations of the Company or any of its Subsidiaries to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary of the Company or any other Person, other than guarantees by the Company of any indebtedness or other obligations of any wholly-owned Subsidiary of the Company.  No Subsidiary of the Company owns any Shares or other Equity Interests in the Company.  Prior to the date of this Agreement, the Company has made available to Parent true, complete and correct copies of the certificate of incorporation, bylaws and other similar organizational documents of each Subsidiary of the Company, each as in effect and as amended

 

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to date.  No Subsidiary of the Company is in violation of its charter, bylaws or similar organizational documents.

 

3.3                                Authority; Execution and Delivery; Enforceability .

 

(a)                                  The Company has all necessary power and authority to execute and deliver this Agreement, to perform and comply with each of its obligations under this Agreement and, subject to the receipt of the Company Stockholder Approval, to consummate the Transactions.  The execution and delivery by the Company of this Agreement, the performance and compliance by the Company with each of its obligations herein, and the consummation by it of the Transactions have been duly and validly authorized by all necessary corporate action on the part of the Company, subject to receipt of the Company Stockholder Approval, and no other corporate proceedings on the part of the Company and no other stockholder votes are necessary to authorize this Agreement or the consummation by the Company of the Transactions.  The Company has duly and validly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Parent and Merger Sub of this Agreement, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought.

 

(b)                                  The Company Board, at a meeting duly called and held, unanimously adopted resolutions (i) approving the execution, delivery and performance of this Agreement and the consummation of the Transactions upon the terms and subject to the conditions set forth in this Agreement, (ii) determining that the terms of this Agreement and the Merger are fair to, and in the best interests of, the Company and its stockholders, (iii) directing that this Agreement be submitted to the stockholders of the Company for adoption, (iv) recommending that its stockholders vote in favor of the adoption of this Agreement (the “ Company Board Recommendation ”) and (v) declaring that this Agreement is advisable.

 

(c)                                   Subject to the accuracy of the representation set forth in Section 4.8 hereof, the Company Board has taken all necessary actions so that the restrictions on business combinations set forth in Section 203 of the DGCL and any other similar Law are not applicable to this Agreement, the Voting Agreement and the transactions contemplated hereby or thereby, including the Merger or the other Transactions.  To the Knowledge of the Company, no other takeover, anti-takeover, business combination, control share acquisition or similar Law applies to the Merger or the other Transactions.  The only vote of holders of any class or series of Shares or other Equity Interests of the Company necessary to adopt this Agreement is the affirmative vote for the adoption of this Agreement by the holders of a majority of the Shares outstanding and entitled to vote thereon at the Company Meeting (the “ Company Stockholder Approval ”).  No other vote of the holders of Shares or any other Equity Interests of the Company is necessary to consummate the Transactions.

 

3.4                                No Conflicts .

 

(a)                                  The execution and delivery of this Agreement does not and will not, and the performance of this Agreement and the consummation of the Merger by the

 

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Company will not, (i) assuming the Company Stockholder Approval is obtained, conflict with or violate any provision of the Company Charter or the Company Bylaws or any equivalent organizational documents of any Subsidiary of the Company, (ii) assuming that all consents, approvals, authorizations and permits described in Section 3.4(b)  have been obtained and all filings and notifications described in Section 3.4(b)  have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected or (iii) except as set forth in Section 3.4 of the Company Disclosure Schedule, require any consent or approval under, result in any breach of or any loss of any benefit under, constitute a change of control or default (or an event which with notice or lapse of time or both would become a default) under or give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of the Company or any of its Subsidiaries pursuant to, any Contract (other than any Credit Document) or Permit to which the Company or any of its Subsidiaries is party, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

(b)                                  The execution and delivery of this Agreement by the Company does not and will not, and the consummation by the Company of the Transactions and compliance by the Company with any of the terms or provisions hereof will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except (i) under the Exchange Act and the rules and regulations of the NYSE, (ii) any applicable requirements of any Competition Laws, (iii) the filing and recordation of the Certificate of Merger as required by the DGCL (together with any applicable franchise tax reports) and (iv) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

 

3.5                                SEC Documents; Financial Statements; Undisclosed Liabilities .

 

(a)                                  The Company has filed or furnished all reports, schedules, forms, statements, registration statements, prospectuses and other documents required to be filed or furnished by the Company with the SEC under the Securities Act or the Exchange Act since May 20, 2015 (the “ Company SEC Documents ”).  None of the Subsidiaries of the Company is required to make any filings with the SEC.

 

(b)                                  As of its respective filing date, and, if amended or superseded by a subsequent filing, as of the date of the last amendment or superseding filing prior to the date of this Agreement, each Company SEC Document complied in all material respects with the requirements of the Exchange Act, the Securities Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations promulgated thereunder applicable to such Company SEC Document and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of the date of this Agreement, the Company has not received any SEC comments that remain outstanding or

 

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unresolved. To the Knowledge of the Company, as of the date of this Agreement, none of the Company SEC Documents is the subject of ongoing SEC review or outstanding SEC comment.

 

(c)                                   The consolidated financial statements of the Company included in the Company SEC Documents (including, in each case, any notes or schedules thereto) (the “ Company SEC Financial Statements ”) fairly present, in all material respects, the consolidated financial condition and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company and its Subsidiaries (on a consolidated basis) as of the respective dates of and for the periods referred to in the Company SEC Financial Statements, and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of any interim unaudited Company SEC Financial Statements, as permitted by Form 10-Q).

 

(d)                                  The Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by Rules 13a-15 and 15d-15 under the Exchange Act.  The Company’s disclosure controls and procedures are designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. The Company’s management has completed an assessment of the effectiveness of the Company’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Company SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation.  Based on the Company’s management’s most recently completed evaluation of the Company’s internal control over financial reporting, (i) the Company had no “significant deficiencies” or “material weaknesses” (each as defined in Rule 13a-15(f) of the Exchange Act) in the design or operation of its internal control over financial reporting that would reasonably be expected to adversely affect the Company’s ability to record, process, summarize and report financial information and (ii) the Company does not have Knowledge of any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.

 

(e)                                   The Company and its Subsidiaries do not have any material liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued) required by GAAP to be reflected or reserved on a consolidated balance sheet of the Company (or the notes thereto) except (i) as disclosed, reflected or reserved against in the most recent audited balance sheet included in the Company SEC Financial Statements or the notes thereto, (ii) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since the date of the most recent audited balance sheet included in the Company SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this

 

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Agreement, the Merger or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.

 

(f)                                    Section 3.5(f)  of the Company Disclosure Schedule contains a true, correct and complete list of all indebtedness for borrowed money of the Company and its Subsidiaries outstanding as of the date of this Agreement in excess of $10 million.

 

3.6                                Absence of Certain Changes or Events .  Since December 31, 2015 through the date of this Agreement, (a) the Company and its Subsidiaries have conducted their businesses in all material respects only in the ordinary course and in a manner consistent with past practice and (b) there has not been any Effect that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.  Since June 30, 2016 through the date of this Agreement, neither the Company nor any of its Subsidiaries has taken any action that would have constituted a breach of, or required Parent’s consent pursuant to, Sections 5.1(b) , (e) , (f) , (g) , (h) , (i) , (o)  or (p)  had the covenants therein applied since June 30, 2016.

 

3.7                                Information Supplied . None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement will, at the date that the Proxy Statement or any amendment or supplement thereto is mailed to holders of Shares or at the time of the Company Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (except that no representation or warranty is made by the Company to such portions thereof that relate to Parent and its Subsidiaries, including Merger Sub, or to statements made therein based on information supplied by or on behalf of Parent for inclusion or incorporation by reference therein).  The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and other applicable Law.

 

3.8                                Legal Proceedings .  There are no Proceedings pending, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective assets or properties or any of the officers or directors of the Company, except, in each case, for those that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.  Neither the Company nor any of its Subsidiaries nor any of their respective assets or properties is or are subject to any Order, except for those that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.

 

3.9                                Compliance with Laws and Orders .

 

(a)                                  The Company and its Subsidiaries are in compliance and since January 1, 2014 have been in compliance with all Laws, including Healthcare Laws, and Orders applicable to the Company or any of its Subsidiaries or any assets owned or used by any of them (except for such past noncompliance as has been remedied and imposes no continuing obligations or costs on the Company or its Subsidiaries) except where any non-compliance,

 

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individually or in the aggregate, has not had and would not reasonably be expected to have, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written communication since January 1, 2014 from a Governmental Entity that alleges that the Company or any of its Subsidiaries is not in compliance with any such Law or Order, except where any non-compliance, individually or in the aggregate, has not had and would not reasonably be expected to have, a Company Material Adverse Effect.

 

(b)                                  Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of their Representatives or agents acting for or on behalf of any of the foregoing, has, since January 1, 2013, made, offered, promised, or authorized any bribe, kickback, or other illegal payment on behalf of the Company or any of its Subsidiaries in order to obtain or retain business for the Company or its Subsidiaries, or has taken any act that would cause the Company or its Subsidiaries to be in violation of the United States Foreign Corrupt Practices Act, the UK Bribery Act 2010, the Canadian Corruption of Foreign Public Officials Act, or any other applicable anti-corruption or anti-bribery law or regulation.

 

(c)

 

(i)                                      Neither the Company nor any of its Subsidiaries, nor any of their respective directors or officers, nor, to the Company’s Knowledge, any of their affiliates, employees or agents is a Person that is, or is owned or controlled by a Person that is the target of any sanctions administered or enforced by the U.S. government including, without limitation, included on, or owned or controlled by a Person or entity included on, the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or on other similar economic or trade sanctions lists maintained by the U.S. government.

 

(ii)                                   Since January 1, 2013, the Company and its Subsidiaries have not engaged in and are not now engaged in any transactions or dealings with any Person, or in any country or territory that at the time of the transaction or dealing is or was the subject of sanctions administered by the U.S. government, the United Nations, the European Union, any European Union member state, or Her Majesty’s Treasury (including Cuba, Iran, North Korea, Sudan, Syria and the Crimea region of Ukraine) (collectively, “ Sanctions ”).

 

(iii)                                Since January 1, 2013, to the Knowledge of the Company, the Company and its Subsidiaries have not engaged in and are not now engaged in any dealings that would give rise to any violation of applicable Sanctions.

 

3.10                         Permits .  The Company and each of its Subsidiaries have all required governmental licenses, permits, certificates, approvals, billing and authorizations (“ Permits ”) necessary for the conduct of their business and the use of their properties and assets, as presently conducted and used, and each of the Permits is valid, subsisting and in full force and effect, except where the failure to have or maintain such Permit, individually or in the aggregate, has not had and would not reasonably be expected to have, a Company Material Adverse Effect.  The operation of the Company and its Subsidiaries as currently conducted is not, and has not been since January 1, 2015, in violation of, nor is the Company or its Subsidiaries in default or violation under, any Permit (except for such past violation or default as has been remedied and

 

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imposes no continuing obligations or costs on the Company or its Subsidiaries), and, to the Knowledge of the Company, no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation of any term, condition or provision of any Permit, except where such default or violation of such Permit, individually or in the aggregate, has not had and would not reasonably be expected to have, a Company Material Adverse Effect.  There are no actions pending or, to the Knowledge of the Company, threatened, that seek the revocation, cancellation or modification of any Permit, except where such revocation, cancellation or modification, individually or in the aggregate, has not had and would not reasonably be expected to have, a Company Material Adverse Effect.

 

3.11                         Employee Benefit Plans .

 

(a)                                  Section 3.11(a)  of the Company Disclosure Schedule sets forth a true and complete list of each material Company Benefit Plan.  “ Company Benefit Plan ” means each (i) “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, (ii) compensation, employment, consulting, end of service or severance, termination protection, change in control, transaction bonus, retention or similar plan, agreement, arrangement, program or policy; or (iii) other plan, Contract, policy or arrangement providing compensation or benefits, in each case whether or not written, (A) that is sponsored, maintained, administered, contributed to or entered into by the Company or its Subsidiaries, for the benefit of any current or former director, officer, employee or individual independent contractor of the Company or its Subsidiaries, (each, a “ Service Provider ”), or (B) for which the Company or any of its Subsidiaries has any direct or indirect liability; provided that Section 3.11(a)  of the Company Disclosure Schedule need not include any employment or consultancy Contracts for employees or consultants who are natural persons that (A) are terminable by the Company or its Subsidiaries upon notice of 60 days or less without any requirement to pay severance, or (B) where the base compensation provided under such employment or consultancy agreement is less than $350,000 per annum.

 

(b)                                  Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Company Benefit Plan has been administered in accordance with its terms and all applicable Laws, including ERISA and the Code, (ii) no Proceeding has been brought, or to the Knowledge of the Company is threatened, against or with respect to any such Company Benefit Plan, including any audit or inquiry by the IRS or United States Department of Labor (other than routine claims for benefits) and (iii) respect to the Company Benefit Plans, no event has occurred and, to the Knowledge of the Company, there exists no condition or set of circumstances which could subject the Company or any of its Subsidiaries to any Tax, lien, fine or penalty under ERISA or the Code.

 

(c)                                   Each Company Benefit Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualified status or is the subject of a favorable opinion from the IRS on the form of such Company Benefit Plan upon which the Company Benefit Plan is entitled to rely, and to the Company’s Knowledge no fact or event has occurred that would reasonably be expected to cause the loss of the qualified status of any such Company Benefit Plan.

 

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(d)                                  No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) or other pension plan subject to Title IV of ERISA.

 

(e)                                   No amount that could be received (whether in cash or property or the vesting of property), as a result of the consummation of the transactions contemplated by this Agreement, by any employee, officer or director of the Company or any of its Subsidiaries who is a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any Company Benefit Plan would reasonably be expected to be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).  No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or Section 409A of the Code or otherwise.

 

(f)                                    Other than Company Options and Company Restricted Shares as provided in Section 2.4 , neither the execution of this Agreement nor the consummation of the Transactions (alone or in conjunction with any other event, including any termination of employment) will (i) entitle any current or former Service Provider to any additional material compensation or benefit (including any bonus, retention or severance pay), (ii) accelerate the time of payment or vesting or result in any material increase, payment or funding of compensation or benefits under any of the Company Benefit Plans, or (iii) limit or restrict the right of the Company or any of its Subsidiaries to amend or terminate any Company Benefit Plan.

 

(g)                                   Except as required by Law, no Company Benefit Plan provides or represents an obligation to provide post-retirement, medical, disability or life insurance benefits to any former employee or their dependents.

 

3.12                         Employee and Labor Matters .

 

(a)                                  Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement, nor is any such agreement currently being negotiated.  As of the date hereof, to the Knowledge of the Company, there are no demands of any union for recognition or certification or union organizing activities pending or threatened against the Company or any of its Subsidiaries.  There is no labor strike, dispute, lockout, slowdown or stoppage pending or, to the Knowledge of the Company, threatened against or affecting the Company or any Subsidiary.

 

(b)                                  The Company and its Subsidiaries are and have been in compliance with all applicable Laws respecting employment and employment practices including, without limitation, all Laws respecting terms and conditions of employment, health and safety, wage payment, wages and hours, child labor, immigration and work authorizations, employment discrimination, disability rights or benefits, equal opportunity, plant closures and layoffs, affirmative action, workers’ compensation, labor relations, social welfare obligations and unemployment insurance, except for noncompliance as, individually or in the aggregate, has not had and would not reasonably be expected to have, a Company Material Adverse Effect.  Neither the Company nor any of the Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity, or any material settlement agreement relating to employees or employment practices.

 

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3.13                         Environmental Matters . Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:

 

(a)                                  The Company and each of its Subsidiaries (i) is and at all times since January 1, 2014 has been in compliance with all, and is not subject to any liability with respect to noncompliance with any, applicable Environmental Laws, (ii) has and holds, all Environmental Permits necessary for the conduct of their business and the use of their properties and assets, as currently conducted and used, and (iii) is in compliance with their respective Environmental Permits.

 

(b)                                  There are no Environmental Claims pending nor, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any written notification of any allegation of actual or potential responsibility for any Release or threatened Release of any Hazardous Materials.

 

(c)                                   None of the Company or any of its Subsidiaries (i) has entered into or agreed to any consent decree or consent order or is otherwise subject to any judgment, decree, or judicial or administrative order relating to compliance with Environmental Laws, Environmental Permits or to the investigation, sampling, monitoring, treatment, remediation, response, removal or cleanup of Hazardous Materials and no Environmental Claim is pending or, to the Knowledge of the Company, threatened with respect thereto, or (ii) is an indemnitor by contract or otherwise in connection with any claim, demand, suit or action threatened or asserted by any third-party for any liability under any Environmental Law or otherwise relating to any Hazardous Materials.

 

(d)                                  To the Knowledge of the Company, there are no Hazardous Materials at, in, on, or under any property or asset of the Company or any of its Subsidiaries, or to the Knowledge of the Company, any other properties or assets, under circumstance or conditions that would reasonably be expected to result in liability to the Company or any of its Subsidiaries under any applicable Environmental Law.

 

3.14                         Real Property; Title to Assets .

 

(a)                                  Section 3.14(a)  of the Company Disclosure Schedule sets forth (i) a true and complete list of all real property leased, subleased or otherwise occupied by the Company or any of its Subsidiaries (collectively, the “ Company Leased Real Property ”), (ii) the address for each parcel of Company Leased Real Property, and (iii) a description of the applicable lease, sublease or other agreement therefore and any and all amendments and modifications relating thereto.  Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Leased Real Property is subject to any Lien, including any right to the use or occupancy of any Company Leased Real Property, other than Permitted Liens.

 

(b)                                  Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each parcel of Company Leased Real Property is in compliance with all existing Laws applicable to such

 

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Company Leased Real Property, and (ii) neither the Company nor any of its Subsidiaries has received written notice of any Proceedings in eminent domain, condemnation or other similar Proceedings that are pending, and to the Company’s Knowledge there are no such Proceedings threatened, affecting any portion of the Company Leased Real Property.

 

(c)                                   The Company or a Subsidiary of the Company has good and marketable title to, or a valid and binding leasehold or other interest in, all tangible personal property necessary for the conduct of the business of the Company and its Subsidiaries, taken as a whole, as currently conducted, free and clear of all Liens (except for Permitted Liens) except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

3.15                         Tax Matters .  Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect,

 

(a)                                  all Tax Returns that are required to be filed by or with respect to any of the Company or its Subsidiaries have been timely filed (taking into account any extension of time within which to file), and all such Tax Returns are true, complete, and accurate;

 

(b)                                  each of the Company and its Subsidiaries has timely paid all Taxes due and owing by it, including any Taxes required to be withheld from amounts owing to, or collected from, any employee, creditor, or other third party (in each case, whether or not shown on any Tax Return), other than Taxes for which adequate reserves have been established in accordance with GAAP on the financial statements of the Company and its Subsidiaries;

 

(c)                                   no deficiencies for Taxes have been claimed, proposed or assessed by any Governmental Entity in writing against the Company or any of its Subsidiaries except for deficiencies which have been fully satisfied by payment, settled or withdrawn;

 

(d)                                  there is no ongoing, pending or threatened (in writing) audit, examination, investigation or other proceeding with respect to any Taxes of the Company or any of its Subsidiaries;

 

(e)                                   neither the Company nor any of its Subsidiaries has waived or extended any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency;

 

(f)                                    neither the Company nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355(a) of the Code (or any similar provision of state, local, or non-U.S. Law) in the two years prior to the date of this Agreement;

 

(g)                                   neither the Company nor any of its Subsidiaries is a party to any Tax allocation, sharing, indemnity, or reimbursement agreement or arrangement (other than any customary Tax indemnification provisions in ordinary course commercial agreements or arrangements, in each case, that are not primarily related to Taxes);

 

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(h)                                  neither the Company nor any of its Subsidiaries have been a member of a consolidated tax group other than a group of which the Company or one of its Subsidiaries has been the common parent or has any liability for Taxes of any Person (other than the Company and its Subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or non-U.S. Law, as a transferee or successor, or otherwise;

 

(i)                                      neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, as a result of any (i) change in method of accounting pursuant to Section 481 of the Code (or any similar provision of state, local or non-U.S. Law) prior to the Closing, (ii) installment sale, intercompany transaction, or open transaction disposition made or entered into prior to the Closing, (iii) prepaid amount received on or prior to the Closing, or (iv) “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) entered into prior to the Closing;

 

(j)                                     the Company is not and never has been a “United States real property holding corporation” within the meaning of Code Section 897(c)(2) of the Code within the past five (5) years;

 

(k)                                  there are no Liens for Taxes upon any property or assets of the Company or its Subsidiaries, except for Permitted Liens;

 

(l)                                      neither the Company nor any of its Subsidiaries has entered into any “listed transaction” within the meaning of U.S. Treasury Regulation Section 1.6011-4(b)(2) (or any similar provision of state, local or non-U.S. Law); and

 

(m)                              no written claim has been made in the last three years by a Governmental Entity in a jurisdiction where neither the Company nor any of its Subsidiaries files Tax Returns that the Company or any Subsidiary is or may be subject to taxation by that jurisdiction.

 

3.16                         Material Contracts .

 

(a)                                  All Contracts required to be filed as exhibits to the Company SEC Documents have been so filed.  Section 3.16(a)   of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of each of the following Contracts (other than Company Benefit Plans) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their assets or businesses are bound (and any material amendments, supplements and modifications thereto):

 

(i)                                      any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange Act);

 

(ii)                                   any Contract that materially limits the ability of the Company or any of its Subsidiaries to compete or provide services in any line of business or with any Person or in any geographic area;

 

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(iii)                                any Contract required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act;

 

(iv)                               any Contract or series of related Contracts relating to indebtedness for borrowed money (A) in excess of $10 million or (B) that becomes due and payable as a result of the Transactions, in each case other than any Credit Document;

 

(v)                                  any license, sublicense, or other Contract granting to the Company any rights to use or otherwise exploit any Intellectual Property owned by a third party, or granting to a third party any rights to use or otherwise exploit any Company Owned Intellectual Property, with the exception, in each case, of (A) shrink-wrap, click-wrap, and off-the-shelf software licenses, and (B) any other licenses of software that is commercially available to the public generally, with one-time or annual license, maintenance, support and other fees of $500,000 or less;

 

(vi)                               any Contract (other than any Credit Document) with the Company’s top ten (10) suppliers (including purchasing agreements, group purchasing agreements, and excluding any Contract described by clauses (vii) and (viii) below and excluding work orders, statements of work, purchase orders and similar contracts) (measured by dollar volume of purchases of the Company during the twelve (12) months ended June 30, 2016);

 

(vii)                            any Contract with the Company’s the top ten (10) customers (excluding any Contract described by clause (vi) above or clause (viii) below and excluding work orders, statements of work, purchase orders and similar contracts) (measured by volume of spending by the customer during the twelve (12) months ended June 30, 2016);

 

(viii)                         any Government Contract generating annual revenues in excess of $250,000 (excluding work orders, statements of work, purchase orders and similar contracts);

 

(ix)                               any acquisition or divestiture agreement entered into since January 1, 2013 with a purchase price in excess of $15 million or pursuant to which the Company or its Subsidiaries has outstanding indemnification, “earn-out” or other contingent payment obligations;

 

(x)                                  any Contract for any joint venture, partnership or similar arrangement;

 

(xi)                               any lease, sublease, license or other Contract granting the Company or any of its Subsidiaries rights in and to the Company Leased Real Property; or

 

(xii)                            any Contract that prohibits (i) the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, (ii) the pledging of the capital stock of the Company or any Subsidiary of the Company, or (iii) the issuance of guarantees by the Company or any Subsidiary of the Company.

 

(b)                                  Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all Contracts set

 

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forth or required to be set forth in Section 3.16(a)  of the Company Disclosure Schedule or filed or required to be filed as exhibits to the Company SEC Documents (the “ Company Material Contracts ”) are valid, binding and in full force and effect and are enforceable by the Company or the applicable Subsidiary in accordance with their terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought, (ii) the Company, or the applicable Subsidiary, has performed all obligations required to be performed by it under the Company Material Contracts, and it is not (with or without notice or lapse of time, or both) in breach or default thereunder and, to the Knowledge of the Company, no other party to any Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder and (iii) since January 1, 2016, neither the Company nor any of its Subsidiaries has received written notice of any actual, alleged, possible or potential violation of, or failure to comply with, any term or requirement of any Company Material Contract. A copy of each Company Material Contracts has either been made available to Parent or has, prior to the date of this Agreement, been filed as an exhibit to the Company SEC Documents.

 

3.17                         Intellectual Property .

 

(a)                                  Section 3.17(a)  of the Company Disclosure Schedule sets forth a list of all (i) issued patents and pending patent applications, (ii) trademark and service mark registrations and applications, (iii) copyright registrations and applications, and (iv) internet domain name registrations, in each case that are owned by the Company or any of its Subsidiaries (collectively, the “ Company Registered Intellectual Property ”).  With respect to each item of Company Registered Intellectual Property, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) either the Company or one of its Subsidiaries is the sole owner and possesses all right, title and interest in and to the item, free and clear of all Liens (other than Permitted Liens), and (ii) no Proceeding is pending or, to Knowledge of the Company, is threatened, that challenges the legality, validity, enforceability, registration, use or ownership of the item.  Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries own or have a license or right to use the Intellectual Property used in connection with the conduct of the Company’s and its Subsidiaries’ businesses as currently conducted.

 

(b)                                  Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the execution and delivery of this Agreement by the Company, nor the performance of this Agreement by the Company, will result in the loss, forfeiture, termination, or impairment of, or give rise to a right of any Person to limit, terminate, or consent to the continued use of, any rights of the Company or any of its Subsidiaries in any Intellectual Property.

 

(c)                                   Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the conduct of the business of the Company nor any of its Subsidiaries is infringing, misappropriating, diluting, or otherwise violating the Intellectual Property rights of any Person.  Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has received any charge, complaint, claim, demand, or

 

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notice since January 1, 2015 (or earlier, if presently not resolved) alleging any such infringement, misappropriation, dilution, or violation (including any claim that the Company or any of its Subsidiaries must license or refrain from using any Intellectual Property rights of any Person).  To the Knowledge of the Company, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Person is infringing, misappropriating, diluting or otherwise violating any Company Owned Intellectual Property.  Neither the Company nor any of its Subsidiaries has made or asserted any charge, complaint, claim, demand or notice since January 1, 2015 (or earlier, if presently not resolved) alleging any such infringement, misappropriation, dilution, or violation.

 

(d)                                  Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Company Owned Intellectual Property that derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use has been maintained in confidence in accordance with protection procedures that are adequate for protection, and in accordance with procedures customarily used in the industry to protect rights of like importance.  Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, to the Knowledge of the Company, there has been no unauthorized use or disclosure of any Company Material Intellectual Property, nor any material violations, breaches, or outages of the Company’s or its Subsidiaries’ Software Programs or systems.  All former and current officers, directors, employees, personnel, consultants, advisors, agents, and independent contractors of the Company and its Subsidiaries, and each of their predecessors, who have contributed to or participated in the conception and development of inventions, improvements, designs, or original works of authorship for such entities have entered into valid and binding proprietary rights agreements with the Company or one of its Subsidiaries or predecessors, vesting ownership of such Intellectual Property in the Company or one of its Subsidiaries.

 

3.18                         Broker’s Fees .  Except for the financial advisors’ fees set forth in Section 3.18 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors on behalf of the Company or such Subsidiaries has employed any financial advisor, broker or finder or incurred any liability for any financial advisory, broker’s fees, commissions or finder’s fees in connection with any of the Transactions.

 

3.19                         Opinion of Financial Advisor .  Goldman, Sachs & Co. and Barclays Capital Inc., the Company’s financial advisors, have each delivered to the Company Board their respective opinion to the effect that, as of the date thereof and based upon and subject to the factors and assumptions set forth therein, the $40.50 per Share to be paid to the holders of Shares pursuant to this Agreement is fair from a financial point of view to such holders.

 

3.20                         Government Contracts .  Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, with respect to each Government Contract, during the three years prior to the date hereof, (or with respect to any of the Company’s Subsidiaries acquired by the Company or a Subsidiary of the Company during the past three years, since the date of such acquisition), (i) neither the Company nor any of its Subsidiaries nor any of their respective current directors, current officers, or, to the

 

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Knowledge of the Company, current employees is suspended or debarred, or proposed for debarment or suspension from government contracting; (ii) no Governmental Entity nor prime contractor, or subcontractor has notified the Company or any of its Subsidiaries, as applicable, in writing of any breach or violation of any applicable Law that remains unresolved and pertains to any Government Contract; (iii) neither the Company nor any of its Subsidiaries has received any written notice of termination for default, cure notice, or show cause notice that remains unresolved and pertains to any Government Contract; (iv) neither the Company nor any of its Subsidiaries has received any written notice of any audits or investigations by any Governmental Entity that remains unresolved and pertains to a Government Contract (other than in the ordinary course of business, including such routine audits by the Defense Contract Audit Agency and the United States Office of Federal Contract Compliance Programs); and (v) neither the Company nor any of its Subsidiaries has made any voluntary or mandatory disclosure to any Governmental Entity with respect to any irregularity, misstatement, significant overpayment, or violation of law arising under or relating to any Government Contract.

 

3.21                         Related Person Transactions .  Except for compensation or other employment arrangements with Company employees in the ordinary course of business consistent with past practice, there are no, and since May 20, 2015, there have been no, Contracts, transactions, arrangements or understandings between the Company or any of its Subsidiaries, on the one hand, and any affiliate (including any director, officer or employee) thereof or any holder of 5% or more of the Shares or other Equity Interests of the Company, but not including any wholly owned Subsidiary of the Company, on the other hand, that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC in the Company’s Form 10-K or proxy statement pertaining to an annual meeting of stockholders.

 

3.22                         No Other Representations or Warranties .  Except for the representations and warranties expressly set forth in this Article 3 , none of the Company, any of its affiliates or any other Person on behalf of the Company makes any express or implied representation or warranty (and there is and has been no reliance by Parent, Merger Sub or any of their respective affiliates or Representatives on any such representation or warranty) with respect to the Company, its Subsidiaries or their respective businesses or with respect to any other information provided, or made available, to Parent, Merger Sub or their respective Representatives or affiliates in connection with the transactions contemplated hereby, including the accuracy or completeness thereof.  Without limiting the foregoing, neither the Company nor any other Person will have or be subject to any liability or other obligation to Parent, Merger Sub or their Representatives or affiliates or any other Person resulting from Parent’s, Merger Sub’s or their Representatives’ or affiliates’ use of any information, documents, projections, forecasts or other material made available to Parent, Merger Sub or their Representatives or affiliates, including any information made available in the electronic data room maintained by the Company for purposes of the transactions contemplated by this Agreement, teaser, marketing material, confidential information memorandum, management presentations, functional “break-out” discussions, responses to questions submitted on behalf of Parent, Merger Sub or their respective Representatives or in any other form in connection with the transactions contemplated by this Agreement, unless and to the extent any such information is expressly included in a representation or warranty contained in this Article 3 .

 

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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

 

Except as set forth in the disclosure schedule delivered by Parent and Merger Sub to the Company (the “ Parent Disclosure Schedule ”) prior to the execution of this Agreement (with specific reference to the representations and warranties in this Article 4 to which the information in such schedule relates; provided , that, disclosure in the Parent Disclosure Schedule as to a specific representation or warranty shall qualify any other sections of this Agreement to the extent (notwithstanding the absence of a specific cross reference) it is reasonably apparent that such disclosure relates to such other sections), Parent and Merger Sub hereby represent and warrant to the Company as follows:

 

4.1                                Corporate Organization .  Each of Parent and Merger Sub is a corporation or other entity duly organized, validly existing and, to the extent applicable, in good standing under the laws of the jurisdiction of its organization and has the requisite corporate or other entity power and authority to own or lease all of its properties, rights and assets and to carry on its business as it is now being conducted.  Each of Parent and Merger Sub is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties, rights and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified, has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

 

4.2                                Authority, Execution and Delivery; Enforceability . Each of Parent and Merger Sub has all necessary power and authority to execute and deliver this Agreement, to perform and comply with each of its obligations under this Agreement and to consummate the Transactions applicable to such party.  The execution and delivery by each of Parent and Merger Sub of this Agreement, the performance and compliance by Parent and Merger Sub with each of its obligations herein and the consummation by Parent and Merger Sub of the Transactions applicable to it have been duly and validly authorized by all necessary corporate action on the part of Parent and Merger Sub, and no other corporate proceedings on the part of Parent or Merger Sub and no stockholder votes are necessary to authorize this Agreement or the consummation by Parent and Merger Sub of the Transactions to which it is a party.  Each of Parent and Merger Sub has duly and validly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by the Company of this Agreement, this Agreement constitutes Parent’s and Merger Sub’s legal, valid and binding obligation, enforceable against each of Parent and Merger Sub in accordance with its terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought.

 

4.3                                No Conflicts .

 

(a)                                  The execution and delivery of this Agreement by Parent and Merger Sub, does not and will not, and the performance of this Agreement and the consummation of the Merger by Parent and Merger Sub will not, (i) conflict with or violate any provision of the certificate of incorporation, bylaws or similar organizational documents of

 

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Parent or Merger Sub, (ii) assuming that all consents, approvals, authorizations and permits described in Section 4.3(b)  have been obtained and all filings and notifications described in Section 4.3(b)  have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to Parent, Merger Sub or any other Subsidiary of Parent (each a “ Parent Subsidiary ” and, collectively, the “ Parent Subsidiaries ”), or by which any property or asset of Parent or any Parent Subsidiary is bound or affected or (iii) require any consent or approval under, result in any breach of or any loss of any benefit under, constitute a change of control or default (or an event which with notice or lapse of time or both would become a default) under or give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of Parent or any Parent Subsidiary, including Merger Sub, pursuant to, any Contract or Permit to which Parent or any Parent Subsidiary is a party, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences which would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

 

(b)                                  Assuming the accuracy of the representations and warranties of the Company in Section 3.4 , the execution and delivery of this Agreement by Parent and Merger Sub does not and will not, and the consummation by Parent and Merger Sub of the Transactions and compliance by Parent and Merger Sub with any of the terms or provisions hereof will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except (i) under the Exchange Act and the rules and regulations of the NYSE, (ii) under any applicable requirements of any Competition Laws, (iii) the filing and recordation of the Certificate of Merger as required by the DGCL (together with any applicable franchise tax reports) and (iv) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

 

4.4                                Litigation .  There is no Proceeding pending, or, to the Knowledge of Parent, threatened that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect, and neither Parent nor Merger Sub is subject to any outstanding Order that, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect or that challenges the validity or propriety of the Merger.

 

4.5                                Financing .  Parent has delivered to the Company a true and complete copy of the fully executed Debt Commitment Letter and Equity Commitment Letter (collectively, the “ Commitment Letters ” and each a “ Commitment Letter ”).  Neither of the Commitment Letters has been amended or modified in any manner prior to or as of the date of this Agreement, nor is any such amendment or modification contemplated except as permitted by Section 5.10(a)(i) .  Neither Parent nor any of its affiliates has entered into any agreement, side letter or other understanding or arrangement relating to the Debt Financing, other than as set forth in the Debt Commitment Letter.  The proceeds of the Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto), if funded, together with cash on hand at the Company, will be sufficient to consummate the transactions contemplated hereby, including the payment of the Closing Payments on the Closing Date.  As of the date hereof, the respective commitments contained in the Commitment Letters have not been withdrawn,

 

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terminated or rescinded in any respect.  The Commitment Letters are in full force and effect and represent a valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the conditions set forth in the Commitment Letters as of the date hereof and except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement thereof may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity).  Parent has fully paid (or caused to be fully paid) any and all commitment fees and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Financing and will pay (or cause to be paid) in full any such amounts due and payable on or before the Effective Time.  As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a breach or default on the part of Parent or, to the Knowledge of Parent, any other party thereto under any of the Commitment Letters.  Neither Parent nor Merger Sub has any reason to believe that it or any other party thereto will be unable to satisfy on a timely basis any term of the Commitment Letters or will not or will not be able to perform its obligations thereunder.  The only conditions precedent or other contingencies related to the funding of the Debt Financing on the Closing Date that will be included in the Debt Financing Documents shall be the conditions set forth in Section 6 of the Debt Commitment Letter as of the date hereof. Assuming satisfaction of the conditions set forth in Sections 6.1 and 6.3 , Parent has no reason to believe that (i) any of the conditions to the Commitment Letters will not be satisfied or (ii) the Financing will not be made available to Parent on the Closing Date.  Each of Parent and Merger Sub understands and acknowledges that under the terms of this Agreement, Parent’s and Merger Sub’s obligation to consummate the Merger is not in any way contingent upon or otherwise subject to Parent’s or Merger Sub’s consummation of any financing arrangements, Parent’s obtaining of any financing or the availability, grant, provision or extension of any financing to Parent or Merger Sub.

 

4.6                                Termination Equity Commitment Letter .  Concurrently with the execution of this Agreement, the Equity Investors have delivered to the Company the Termination Equity Commitment Letter dated as of the date hereof.  The Termination Equity Commitment Letter is in full force and effect and is a valid and binding obligation of the Equity Investors, enforceable against the Equity Investors in accordance with its terms, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity).  No event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of the Equity Investors under the Termination Equity Commitment Letter.

 

4.7                                Proxy Statement; Other Information .  None of the information supplied or to be supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Proxy Statement will, at the date that the Proxy Statement or any amendment or supplement thereto is mailed to holders of Shares and at the time of the Company Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (except that no representation or warranty is made by Parent or Merger Sub to such portions thereof that relate expressly to the Company or any of its Subsidiaries or to statements made therein based on

 

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information supplied by or on behalf of Company for inclusion or incorporation by reference therein).

 

4.8                                Ownership of Company Capital Stock .  None of Parent, Merger Sub or any Parent Subsidiary beneficially owns any Shares.  Neither Parent nor Merger Sub is, nor at any time during the last three years has it been, an “interested stockholder” of the Company as defined in Section 203 of the DGCL (other than as contemplated by this Agreement).

 

4.9                                Solvency .  Assuming (w) the satisfaction of the conditions set forth in Sections 6.1 and 6.3 , (x) the representations and warranties of the Company contained in this Agreement are true and correct in all respects, (y) any estimates, projections or forecasts of the Company and its Subsidiaries that have been made available to Parent have been prepared in good faith based upon assumptions that were, at the time made, and continue to be, at the Effective Time, reasonable and (z) immediately prior to the Effective Time the Company is solvent, after giving effect to the consummation of the Merger and the consummation of the Financing, the Surviving Corporation will not (i) be insolvent (either because its financial condition is such that the sum of its liabilities is greater than the fair market value of its assets or because the fair saleable value of its assets is less than the amount required to pay its liabilities as they come due), (ii) have unreasonably small capital with which to engage in its business or fail to satisfy any capital adequacy requirements under Law or (iii) have incurred obligations beyond its ability to pay them as they become due.

 

4.10                         Ownership of Parent and Merger Sub .  All of the outstanding Equity Interests of Parent and Merger Sub have been duly authorized and validly issued. All of the issued and outstanding Equity Interests of Merger Sub are, and at the Effective Time will be, owned directly or indirectly by Parent, and all of the issued and outstanding Equity Interests of Parent are, and at the Effective Time will be, owned directly or indirectly by the Equity Investors or their affiliates.  Merger Sub was formed solely for purposes of the Merger and, except for matters incident to formation and execution and delivery of this Agreement and the performance of the transactions contemplated hereby, Merger Sub has not prior to the date hereof engaged in any business or other activities.

 

4.11                         Brokers .  Except for the financial advisors’ fees set forth in Section 4.11 of the Parent Disclosure Schedule, neither Parent nor any Parent Subsidiary nor any of their respective officers or directors on behalf of Parent or such Parent Subsidiary has employed any financial advisor, broker or finder or incurred any liability for any financial advisory, broker’s fees, commissions or finder’s fees in connection with any of the Transactions.

 

4.12                         No Other Representations and Warranties; Non-Reliance .  Each of Parent and Merger Sub has conducted its own independent review and analysis of the business, operations, assets, Intellectual Property, technology, liabilities, results of operations, financial condition and prospects of the Company and each of them acknowledges that it and its Representatives have received access to such books and records, facilities, equipment, contracts and other assets of the Company that it and its Representatives have requested to review, and that it and its Representatives have had full opportunity to meet with the management of the Company and to discuss the business and assets of the Company.  Each of Parent and Merger Sub acknowledges that neither the Company nor any Person on behalf of the Company makes,

 

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and none of Parent or Merger Sub has relied upon, any express or implied representation or warranty with respect to the Company or any of its Subsidiaries or with respect to any other information provided to Parent or Merger Sub in connection with the transactions contemplated by this Agreement including the accuracy or completeness thereof other than the representations and warranties contained in Article 3 .  Each of Parent and Merger Sub acknowledges and agrees that, to the fullest extent permitted by applicable Law, the Company and its Subsidiaries, and their respective affiliates, stockholders, controlling persons or Representatives shall not have any liability or responsibility whatsoever to Parent, Merger Sub, any Parent Subsidiary, or their respective affiliates, stockholders, controlling persons or Representatives on any basis (including in contract or tort, under federal or state securities Laws or otherwise) based upon any information (including any statement, document or agreement delivered pursuant to this Agreement and any financial statements and any projections, estimates or other forward-looking information) provided or made available (including in any data rooms, management presentations, information or descriptive memorandum or supplemental information), or statements made (or any omissions therefrom), to Parent, Merger Sub, any Parent Subsidiary, or any of their respective affiliates, stockholders, controlling persons or Representatives, except as and only to the extent expressly set forth in Article 3 (as qualified by the Company Disclosure Schedule).

 

ARTICLE 5
COVENANTS

 

5.1                                Conduct of Business by the Company Pending the Closing .  The Company agrees that, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7 , except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, or with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries to, (i) conduct its operations only in the ordinary course of business in a manner consistent with past practice, and (ii) use its commercially reasonable efforts to keep available the services of the current officers, employees and consultants of the Company and each of its Subsidiaries and to preserve the goodwill and current relationships of the Company and each of its Subsidiaries with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has business relations.  Without limiting the foregoing, except as set forth in Section 5.1 of the Company Disclosure Schedule or as otherwise expressly contemplated by any other provision of this Agreement, or with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7 , directly or indirectly, take any of the following actions without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed):

 

(a)                                  amend or otherwise change the certificate of incorporation or bylaws or equivalent organizational documents of the Company or any of its Subsidiaries;

 

(b)                                  issue, sell, pledge, dispose of, grant, transfer or encumber any shares of capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries of

 

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any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Interests, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Interests or such convertible or exchangeable securities of the Company or any of its Subsidiaries, other than any pledge or encumbrance pursuant to the Credit Documents or the issuance of Shares upon the exercise of Company Options outstanding as of the date hereof in accordance with their terms;

 

(c)                                   sell, pledge, dispose of, transfer, lease, license, guarantee or encumber any material property or assets of the Company or any of its Subsidiaries (other than Intellectual Property), except (i) pursuant to the Credit Documents or (ii) the sale, pledge, disposition, transfer lease, license, guarantee or encumbrance of property or assets in the ordinary course of business or consistent with past practice or industry standards;

 

(d)                                  sell, assign, pledge, transfer, license, abandon, or otherwise dispose of any Company Material Intellectual Property, except in the ordinary course of business or any pledge pursuant to the Credit Documents;

 

(e)                                   declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock or other Equity Interests, except for dividends paid by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company;

 

(f)                                    reclassify, combine, split, subdivide, adjust or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other Equity Interests, except with respect to any wholly owned Subsidiary of the Company;

 

(g)                                   merge, combine or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, except with respect to any wholly owned Subsidiary of the Company;

 

(h)                                  acquire (including by merger, consolidation, or acquisition of stock or assets) any Person or assets, other than (i) acquisitions of inventory, raw materials and other property in the ordinary course of business consistent with past practice and (ii) any other acquisitions with a purchase price of less than $25 million;

 

(i)                                      incur, assume or modify the terms of any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any Person (other than a wholly-owned Subsidiary of the Company) for borrowed money, except (i) for borrowings under the Credit Documents, and (iii) indebtedness not to exceed $25 million in in the aggregate; provided , however , that any indebtedness incurred in accordance with this Section 5.1(i)  shall not reasonably be expected to adversely affect the ability of Parent or Merger Sub to consummate the Debt Financing;

 

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(j)                                     make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Subsidiary of the Company) in excess of $25 million in the aggregate;

 

(k)                                  terminate, cancel or renew, or agree to any material amendment to or waiver under any Company Material Contract, or enter into or amend any Contract that, if existing on the date hereof, would be a Company Material Contract, in a manner adverse to the Company and its Subsidiaries taken as a whole, in each case other than in the ordinary course of business or consistent with past practice or industry standards;

 

(l)                                      make any capital expenditure in excess of the Company’s capital expenditure budget as disclosed to Parent prior to the date hereof, other than capital expenditures that are not, in the aggregate, in excess of $25 million;

 

(m)                              except as required by applicable Law or the existing terms of any Company Benefit Plan, (i) increase the compensation or benefits payable or to become payable to its directors, officers or employees of the Company or any of its Subsidiaries, other than in the ordinary course of business consistent with past practice with respect to any non-officer, (ii) materially amend any Company Benefit Plan or establish, adopt, enter into any new such arrangement that if in effect on the date hereof would be a Company Benefit Plan, other than in connection with new hires of non-officer employees in the ordinary course of business consistent with past practice, (iii) except as provided in Section 2.4 , take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan or (iv) terminate (other than for cause) the employment of any officer;

 

(n)                                  make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Entity;

 

(o)                                  waive, compromise, settle or agree to settle any pending or threatened Proceeding or agree to any remedies with respect to any pending or threatened Proceeding other than waivers, compromises, settlements or agreements that involve only the payment of monetary damages not in excess of $10 million in the aggregate, in any case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries;

 

(p)                                  make, change or revoke any material Tax election, change any of its material methods of reporting income or deductions for Tax purposes, or change any accounting period or accounting method with respect to material Taxes, file any material amended Tax Return, surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment settle or compromise any material Tax liability or settle any material Tax claim, audit or dispute;

 

(q)                                  enter into any new line of business outside of the Company’s and its Subsidiaries’ existing business on the date of this Agreement;

 

(r)                                     recognize any union or other labor organization as the representative of any of the employees of the Company or any of its Subsidiaries, or enter into

 

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any new or amended collective bargaining agreement with any labor organization except as required by applicable Law;

 

(s)                                    (i) enter into or amend in any manner any Contract with any former or present director or officer of the Company or any of its Subsidiaries or with any affiliate of any of the foregoing Persons or any other Person covered under Item 404 of Regulation S-K under the Securities Act or (ii) make any payment to any affiliate of the Company or any other Person covered under Item 404 of Regulation S-K under the Securities Act (other than any payments pursuant to Contracts made available to Parent); or

 

(t)                                     authorize or enter into any Contract or otherwise make any commitment to do any of the foregoing.

 

5.2                                Access to Information; Confidentiality .

 

(a)                                  From the date of this Agreement to the earlier of the Effective Time and the termination of this Agreement in accordance with Article 7 , the Company shall, and shall cause each of its Subsidiaries to:  (i) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to interfere unreasonably with the business conducted by the Company or any of its Subsidiaries, upon prior notice to the Company, to the officers, employees, properties, assets, offices and other facilities of the Company and each of its Subsidiaries and to the books and records thereof and (ii) use commercially reasonable efforts to (A) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours, upon prior notice to the Company, to the Representatives of the Company and each of its Subsidiaries, and (B) furnish during normal business hours upon prior notice such information concerning the business, properties, Contracts, assets and liabilities of the Company and each of its Subsidiaries as Parent or its Representatives may reasonably request; provided , however , that the Company shall not be required to (or to cause any of its Subsidiaries to) afford such access or furnish such information to the extent that the Company believes that doing so would: (1) result in the loss of attorney-client privilege (but the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege), (2) result in the disclosure of any trade secrets of third parties or otherwise breach, contravene or violate any effective Contract existing on the date hereof to which the Company or any of its Subsidiaries is a party, or (3) breach, contravene or violate any applicable Law.  The standstill provisions of paragraph 12 of the Confidentiality Agreement are hereby waived by the Company only to the extent necessary to consummate the Merger upon the terms and subject to the conditions of this Agreement and with respect to any other action of Parent and Merger Sub contemplated by this Agreement including, without limitation, those taken under Section 5.3(g) .

 

(b)                                  The Confidentiality Agreement, dated June 9, 2016, by and between the Company and EQT Partners Inc. (the “ Confidentiality Agreement ”), shall apply with respect to information furnished under this Section 5.2 by the Company, its Subsidiaries and their Representatives.  Prior to the Closing, each of Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact or otherwise communicate with the employees (other than members of the Company’s senior leadership team), customers, suppliers, distributors of the Company and its Subsidiaries, or, except as required pursuant to Section 5.5 ,

 

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any Governmental Entity, regarding the business of the Company, this Agreement or the Transactions without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed.

 

5.3                                No Solicitation .

 

(a)                                  Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on the day that is 40 calendar days following the date of this Agreement (the “ Solicitation Period End Date ”), the Company, its Subsidiaries, directors, officers, employees and other Representatives shall have the right to, directly or indirectly, (i) solicit, initiate, facilitate and encourage any Acquisition Proposals or the making thereof, or any inquiry, expression of interest, proposal, offer or request for information, with respect to, or that could reasonably be expected to result in an Acquisition Proposal, including by way of furnishing non-public information to any Third Party pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided , however , that any non-public information concerning the Company or its Subsidiaries provided to any Third Party shall, to the extent not previously provided or made available to Parent or Merger Sub, be provided or made available to Parent or Merger Sub substantially concurrent with the time it is provided to a Third Party; and (ii) enter into, continue or otherwise participate in any discussions or negotiations with respect to any Acquisition Proposal or any inquiry, expression of interest, proposal, offer or request for information, with respect to, or that could reasonably be expected to result in an Acquisition Proposal, or otherwise cooperate with or assist or participate in or facilitate any such discussions or negotiations or any effort or attempt to make any Acquisition Proposal.

 

(b)                                  Except as expressly permitted by this Section 5.3 , from and after the Solicitation Period End Date, except with respect to any Exempted Person, the Company shall, shall cause its Subsidiaries to and shall use its reasonable best efforts to cause its and their Representatives to, (x) immediately cease and cause to be terminated any discussion or negotiation with any Third Party that may be ongoing with respect to any Acquisition Proposal, (y) promptly (and in no event later than two (2) Business Days) deliver written notice to each such Third Party that the Company is ending all such solicitations, discussions, communications and negotiations with such Third Party pursuant to this Agreement, which such written notice shall also request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries and (z) immediately terminate any electronic data room access (or other diligence access) of any such Third Party.  Except as expressly permitted by this Section 5.3 , from and after the Solicitation Period End Date until the receipt of the Company Stockholder Approval, or, if earlier, the termination of this Agreement in accordance with Article 7 , the Company shall not, shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and their Representatives not to, directly or indirectly, (A) initiate, solicit or knowingly facilitate or knowingly encourage an Acquisition Proposal or the making of an inquiry that could reasonably be expected to lead to an Acquisition Proposal, (B) enter into, continue or otherwise participate or engage in, knowingly facilitate or knowingly encourage, any discussions or negotiations regarding, or that could reasonably be expected to lead to, an Acquisition Proposal, except that , the Company may (1) contact a Person making an Acquisition Proposal to clarify the terms and conditions thereof and (2) inform Persons of the provisions contained in this Section 5.3 , (C) provide access to its properties, books and records

 

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or any non-public information to, any Third Party (other than Parent, Merger Sub or any of their Representatives) with respect to an Acquisition Proposal, (D) execute or enter into, any merger agreement, acquisition agreement, transaction agreement, letter of intent or other similar agreement for any Acquisition Proposal, (E) knowingly take any action to make the provision of any “control share acquisition,” “fair price,” “business combination” or other similar anti-takeover Law inapplicable to any transactions contemplated by an Acquisition Proposal or (F) authorize any of, or commit or agree to do any of, the foregoing.  Except as expressly permitted by this Section 5.3 , from and after the Solicitation Period End Date until the receipt of the Company Stockholder Approval, or, if earlier, the termination of this Agreement in accordance with Article 7 , neither the Company Board nor any committee thereof shall (i) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, transaction agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement), or (iv) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii) or (iv) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “ Change of Board Recommendation ”).  No later than two (2) Business Days following the Solicitation Period End Date, the Company shall notify Parent in writing of the identity of each Exempted Person, together with (x) an unredacted copy of the most recent Acquisition Proposal made by such Exempted Person, if in writing, incorporating any material modifications thereto or (y) a written summary of the material terms of such Acquisition Proposal, if oral, incorporating any material modifications thereto.

 

(c)                                   Notwithstanding anything to the contrary contained in Section 5.3(b) , if at any time following the Solicitation Period End Date and prior to the receipt of the Company Stockholder Approval (i) the Company has received a bona fide written Acquisition Proposal from a Third Party, (ii) the Company has not breached this Section 5.3 in any material respect with respect to such Acquisition Proposal, (iii) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and (iv) the Company Board (or a duly authorized committee thereof) shall have determined in good faith, after consultation with its outside legal counsel, that the failure to undertake the actions in clauses (A) and (B) would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Third Party making such Acquisition Proposal, its Representatives and potential sources of financing pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements and (B) participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal; provided , however, that any non-public information concerning the Company or its Subsidiaries provided to any Third Party shall, to the extent not previously provided or made available to Parent or Merger Sub, be provided to Parent or Merger Sub substantially concurrent with the time it is provided to a Third Party.

 

(d)                                  From and after the Solicitation Period End Date, the Company shall promptly (and in any event within 24 hours) notify Parent in writing in the event that the Company receives any Acquisition Proposal or an inquiry that could reasonably be expected to

 

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lead to an Acquisition Proposal.  The Company shall notify Parent promptly (and in any event within 24 hours) of the identity of such Person and provide to Parent a copy of such Acquisition Proposal or inquiry, including draft agreements or term sheets, financing commitments and other related documents submitted in connection therewith or, where no such copy is available, a reasonable written summary of the material terms, in each case, with any material modifications thereto.  In addition, from and after the Solicitation Period End Date, the Company shall (i) keep Parent reasonably informed in all material respects of the status and details (including any change to the terms thereof) of any Acquisition Proposal or inquiry that could reasonably be expected to lead to an Acquisition Proposal and (ii) provide Parent promptly after the receipt or delivery of all correspondence and other written material sent or provided to the Company, its Subsidiaries or its Representatives from any Person that describes any changes to the terms or conditions of any Acquisition Proposal or inquiry that could reasonably be expected to lead to an Acquisition Proposal.  The Company shall not, and shall cause the Company’s Subsidiaries not to, enter into any Contract with any Person that prohibits the Company from providing such information or any other information contemplated by this Section 5.3 to Parent or otherwise limits or impairs the Company’s, its affiliates’ or its Representatives’ ability to comply with their respective obligations in this Section 5.3 .

 

(e)                                   Notwithstanding anything to the contrary contained in Section 5.3(b) , if the Company has received a bona fide written Acquisition Proposal which did not result from a material breach of this Section 5.3 and that the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside counsel, that (x) such Acquisition Proposal constitutes a Superior Proposal and (y) the failure to take such action would be reasonably expected to be inconsistent with its fiduciary duties under applicable Law, the Company Board may at any time prior to the receipt of the Company Stockholder Approval, subject to complying with Section 5.3(g) , (i) effect a Change of Board Recommendation with respect to such Superior Proposal or fail to include the Company Board Recommendation in the Proxy Statement and/or (ii) terminate this Agreement pursuant to Section 7.1(f)  to concurrently enter into a definitive agreement with respect to such Superior Proposal, in either case subject to the requirements of this Section 5.3 ; provided , however , that as a condition precedent to terminating this Agreement pursuant to Section 7.1(f) , the Company pays to Parent the Company Termination Fee in accordance with Section 7.3.

 

(f)                                    Notwithstanding anything to the contrary contained in Section 5.3(b) , the Company Board (or any duly authorized committee thereof) may at any time prior to the receipt of the Company Stockholder Approval, subject to materially complying with Section 5.3(g) , effect a Change of Board Recommendation if the Company Board (or any duly authorized committee thereof) has determined in good faith, (i) after consultation with its outside counsel and financial advisors, that an Intervening Event has occurred and is continuing and (ii) after consultation with its outside counsel, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.

 

(g)                                   Notwithstanding anything to the contrary contained herein, the Company Board (or any duly authorized committee thereof) shall not be entitled to exercise its right to make a Change of Board Recommendation and the Company will not be entitled to terminate this Agreement in accordance with Section 7.1(f)  unless (i) the Company has complied

 

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in all material respects with this Section 5.3 , (ii) the Company promptly notifies Parent, in writing, at least four (4) Business Days before the Company Board (or any duly authorized committee thereof) or the Company takes such action, of its intention to take such action (which notification shall specify, to the extent an Intervening Event is the basis for the Change of Board Recommendation, the details of such event, and to the extent a Superior Proposal is the basis for the Change of Board Recommendation, the identity of the person making an Acquisition Proposal that was determined to constitute a Superior Proposal and the material terms thereof, together with copies of any written offer or proposal, proposed definitive agreement, proposed or committed financing documentation and any other material related documents in respect of such Acquisition Proposal), (iii) during such four (4) Business Day period, if requested by Parent, the Company and its Representatives shall be available to meet and engage in good faith negotiations with Parent and its Representatives to amend the terms and conditions of this Agreement in such a manner so that, with respect to an Acquisition Proposal, such Acquisition Proposal would cease to constitute a Superior Proposal or, with respect to an Intervening Event, would permit the Company Board (or any duly authorized committee thereof) to not take such actions, and (iv) following the end of such four (4) Business Day period, the Company Board (or any duly authorized committee thereof) shall have determined in good faith, after consultation with its outside counsel, and taking into account any changes to the terms of this Agreement agreed to in writing by Parent following any notice provided pursuant to this Section 5.3(g)  or otherwise, that the failure to take such action would be reasonably expected to be inconsistent with its fiduciary duties under applicable Law and, in the case of a Change of Board Recommendation in response to an Acquisition Proposal or termination under Section 7.1(f) , after consultation with its financial advisors, that the Acquisition Proposal giving rise to such notice continues to constitute a Superior Proposal; provided , however , that (x) any amendment to the financial terms or other material terms or conditions (including the provision of financing) of the Acquisition Proposal which was determined to constitute a Superior Proposal or (y) any material change in respect of such Intervening Event, in each case, shall require a new written notification from the Company and an additional two (2) Business Day period that (other than as to the four (4) Business Day time periods set forth herein) satisfies this Section 5.3(g) .

 

(h)                                  Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board (or any duly authorized committee thereof) from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided , however , that except as set forth in the following sentence, if such disclosure does not reaffirm the Company Board Recommendation, such disclosure shall be deemed to be a Change of Board Recommendation or (ii) the accurate disclosure of factual information regarding the business, financial condition or results of operations of the Company, which such disclosure shall comply with this Section 5.3 .  The issuance by the Company or the Company Board (or any duly authorized committee thereof) of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Board Recommendation.

 

(i)                                      For purposes of this Agreement:

 

(i)                                      Acquisition Proposal ” means any offer or proposal from a Third Party concerning (A) any merger, consolidation, business combination, recapitalization,

 

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reorganization, liquidation, dissolution, extraordinary dividend or distribution, repurchase or redemption of Shares, share exchange or other business combination transaction involving the Company, (B) a direct or indirect acquisition, purchase, sale, lease or other disposition, in one transaction or a series of related transaction, of assets of the Company (including Equity Interests of any Subsidiary of the Company) or its Subsidiaries or businesses representing 15% or more of the consolidated assets, net income or consolidated revenues of the Company and its Subsidiaries, taken as a whole, or more than 15% of any class of Equity Interests of the Company, (C) an issuance (including by way of merger, consolidation, business combination or share exchange) of Equity Interests representing 15% or more of the voting power of the Company, or (D) any combination of the foregoing (in each case, other the Merger).

 

(ii)                                   Superior Proposal ” means a bona fide written Acquisition Proposal (except the references therein to “15%” shall be replaced by “50%”) that the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside counsel, taking into account such factors (including but not limited to all financial, legal, timing, regulatory and other aspects of such proposal or offer (including any break-up fee, expense reimbursement provisions, conditions to consummation and financing terms) and the person making such proposal) as the Company Board (or any duly authorized committee thereof) considers in good faith to be appropriate, is more favorable from a financial point of view to the Company’s stockholders than the transactions contemplated by this Agreement (after giving effect to any changes to the terms of this Agreement agreed to in writing by Parent prior to the time of such determination).

 

(iii)                                Intervening Event ” means any event, change, effect, development, state of facts, condition or occurrence (including any acceleration or deceleration of existing changes or developments) that is material to the Company and its Subsidiaries that (A) was not known (or, if known, the consequences of which were not reasonably foreseeable) to the Company Board as of or prior to the date of this Agreement, and (B) does not involve or relate to an Acquisition Proposal.

 

(iv)                               Exempted Person ” means any Person or group of Persons (so long as, in the case of a group of Persons, the members of such group who were members of such group immediately prior to the Solicitation Period End Date constitute more than 50% of the equity financing of such group of Persons at all times following the Solicitation Period End Date), from whom the Company or any of its Representatives has received a bona fide Acquisition Proposal after the execution of this Agreement and prior to the Solicitation Period End Date that, on or before the Solicitation Period End Date, the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside counsel, constitutes or could reasonably be expected to lead to a Superior Proposal, and which Acquisition Proposal has not been withdrawn and has not expired or been terminated as of the Solicitation Period End Date.

 

5.4                                SEC Filings; Other Actions .

 

(a)                                  As promptly as reasonably practicable after the execution of this Agreement, but no later than within 20 Business Days, the Company shall prepare and file the Proxy Statement with the SEC, which shall, subject to Section 5.3 , include the Company Board

 

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Recommendation.  Parent and Merger Sub, and their counsel, shall be given a reasonable opportunity to review the Proxy Statement (or any amendment or supplement thereto) before it is filed with the SEC, and the Company shall consider in good faith and include any reasonable additions, deletions or changes suggested thereto by Parent and Merger Sub or their counsel.  The Company shall use all reasonable best efforts to respond to and resolve as promptly as practicable any comments by the SEC staff in respect of the Proxy Statement (or any amendment or supplement thereto) and to cause the definitive Proxy Statement to be mailed to the Company’s stockholders as of the record date established for the Company Meeting as promptly as practicable after the date of this Agreement, and in no event more than five (5) Business Days after the date on which the SEC confirms that it has no further comments on the Proxy Statement; provided , however , that the Company shall not be obligated to mail the definitive Proxy Statement to the Company’s stockholders prior to the date that is two (2) Business Days after the Solicitation Period End Date.  The Company shall provide Parent and its counsel with copies of any written comments, and shall provide them a summary of any oral comments, that the Company or its counsel receive from the SEC or its staff with respect to the Proxy Statement (or any amendment or supplement thereto) as promptly as practicable after receipt of such comments, and any written or oral responses thereto.  Parent and its counsel shall be given a reasonable opportunity to review any such responses and the Company shall consider in good faith the reasonable additions, deletions or changes suggested thereto by Parent and its counsel.  Parent and Merger Sub shall furnish all information that is customarily included in a proxy statement prepared in connection with transactions of the type contemplated by this Agreement concerning themselves and their affiliates as promptly as practicable after the date hereof.  If at any time prior to the Company Meeting any information relating to the Company or Parent, or any of their respective affiliates, is discovered by a party hereto, which information should be set forth in an amendment or supplement to the Proxy Statement, so that either the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party and the Company shall prepare (with the assistance of Parent) and mail to its stockholders such an amendment or supplement, in each case, to the extent required by applicable Law.  Each of the Company, Parent and Merger Sub agrees to promptly (i) correct any information provided by it specifically for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and (ii) supplement the information provided by it specifically for use in the Proxy Statement to include any information that shall become necessary in order to make the statements in the Proxy Statement, in light of the circumstances under which they were made, not misleading.  The Company agrees to cause the Proxy Statement as so corrected or supplemented promptly to be filed with the SEC and to be disseminated to its stockholders, in each case as and to the extent required by applicable Law.

 

(b)                                  Subject to the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with the DGCL, the Company Charter, the Company Bylaws and the applicable requirements of the NYSE to duly call, give notice of, convene and hold a meeting of its stockholders promptly following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “ Company Meeting ”), with the record date and meeting date of the Company Meeting to be selected after reasonable consultation with Parent, and (ii) subject to a Change of Board Recommendation in accordance with Section 5.3 , shall include the Company Board Recommendation in the Proxy

 

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Statement and use all reasonable best efforts to solicit from its stockholders proxies to obtain the Company Stockholder Approval.  The Company may postpone or adjourn the Company Meeting from time to time (A) with the consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (B) if a quorum has not been established at the time of the originally scheduled Company Meeting, (C) after consultation with Parent, with respect to any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside legal and financial advisors is necessary under applicable Law, to the extent necessary to (1) allow reasonable additional time for the filing and mailing of such supplemental or amended disclosure, and (2) ensure such supplemental or amended disclosure is provided to the stockholders of the Company within a reasonable amount of time in advance of the Company Meeting, (D) to allow reasonable additional time to solicit additional proxies if necessary in order to obtain the Company Stockholder Approval or (E) if required by Law. Unless this Agreement has been terminated pursuant to Article 7 , if the Company Board shall have made a Change of Board Recommendation, the Company shall nonetheless submit this Agreement to the stockholders at the Company Meeting and shall not submit an alternate Acquisition Proposal for adoption by stockholders of the Company.

 

5.5                                Appropriate Action; Consents; Filings .

 

(a)                                  Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable under this Agreement and applicable Law to consummate and make effective the Merger and the other Transactions contemplated by this Agreement as promptly as practicable, including using reasonable best efforts to accomplish the following: (i) obtain all consents, approvals or waivers from, or participation in other discussions or negotiations with, third parties, including under any Contract to which the Company or Parent or any of their respective Subsidiaries is party or by which such Person or any of their respective properties or assets may be bound, (ii) obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities (including, without limitation, those in connection with applicable Competition Laws), make all necessary registrations, declarations and filings with and take all steps as may be necessary to obtain an approval or waiver from, or to avoid any Proceeding by, any Governmental Entity (including, without limitation, in connection with applicable Competition Laws), (iii)  resist, contest or defend any Proceeding (including administrative or judicial Proceedings) challenging the Merger or the completion of the Transactions, including seeking to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that is in effect and that could restrict, prevent or prohibit consummation of the Transactions, and (iv) execute and deliver any additional instruments necessary to consummate the Transactions and fully to carry out the purposes of this Agreement.  Each of the parties shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing.  Subject to applicable Law relating to the exchange of information, the Company and Parent shall have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to the Company or Parent, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the Transactions.  In exercising the foregoing rights, each of the Company and Parent shall act

 

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reasonably and as promptly as practicable.  Subject to applicable Law and the instructions of any Governmental Entity, the Company and Parent shall keep each other reasonably apprised of the status of matters relating to the completion of the Transactions, including promptly furnishing the other with copies of notices or other written substantive communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other party and its counsel with the opportunity to participate in any meeting with any Governmental Entity in respect of any substantive filing, investigation or other inquiry in connection with the transactions contemplated hereby.  In furtherance and not in limitation of the foregoing, each of the Company and Parent shall, and shall cause their respective affiliates to, make or cause to be made all filings required under applicable Competition Laws with respect to the Transactions as promptly as practicable and, in any event, file all required HSR Act notifications within ten (10) Business Days after the date of this Agreement.

 

(b)                                  Without limiting this Section 5.5 , Parent agrees to use its best efforts to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to resolve, avoid or eliminate each and every impediment under any applicable Competition Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as promptly as practicable (and in any event, no later than the Outside Date), including (i) proposing, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, licensing or disposition of any assets, properties or businesses of Parent or the Company or any of their respective Subsidiaries or (ii) accepting any operational restrictions or otherwise taking or committing to take actions that limit Parent’s or any Parent Subsidiary’s freedom of action with respect to, or its ability to retain, any of the assets, properties, licenses, rights, product lines, operations or businesses of Parent or the Company or any of their respective Subsidiaries in each case, as may be required in order to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other Order in any suit or Proceeding, which would otherwise have the effect of preventing or delaying the Closing, as applicable. If such efforts fail to resolve, avoid or eliminate each and every impediment under any applicable Competition Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur, then Parent shall, at the written request of the Company, use its reasonable best efforts to avoid, resist, resolve, or, if necessary, defend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing from occurring as promptly as practicable (and in any event, no later than the Outside Date).  Notwithstanding the foregoing or any other provision of t


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