EXHIBIT 2.1
_________________________________
AGREEMENT AND PLAN OF MERGER
_________________________________
AMONG
PATRIOT HOLDING CORP.
AND
PATRIOT ACQUISITION CORP.
AND
TRANSPORT CORPORATION OF AMERICA, INC.
____________________________________
DATED OCTOBER 26, 2005
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TABLE OF CONTENTS
Page
----
ARTICLE I THE
MERGER...........................................................2
Section 1.01 The
Merger...................................................2
Section 1.02 Effective Time of the
Merger.................................2
Section 1.03
Closing......................................................2
Section 1.04 Effects of the
Merger........................................2
Section 1.05 Articles of Incorporation;
Bylaws............................2
Section 1.06 Officers and
Directors.......................................2
ARTICLE II CONTRIBUTION; CONVERSION OF
SECURITIES..............................3
Section 2.01 Contribution of
Shares.......................................3
Section 2.02 Conversion of Capital
Stock..................................3
(a) Capital Stock of
Sub....................................3
(b) Exchange Ratio for
Seller Common Stock..................3
(c) Seller Common
Stock Held by Purchaser or Sub............3
Section 2.03 Seller Stock
Options.........................................4
Section 2.04 Tax
Withholding..............................................4
Section 2.05 Exchange of
Certificates.....................................4
Section 2.06 Dissenting
Shares............................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES
OF SELLER...........................6
Section 3.01 Organization of
Seller.......................................6
Section 3.02 Seller Capital
Structure.....................................7
Section 3.03 Authority, No Conflict,
Required Filings and Consents........8
Section 3.04 SEC Filings; Financial
Statements............................9
Section 3.05 No Undisclosed
Liabilities..................................10
Section 3.06 Absence of Certain Changes
or Events........................10
Section 3.07
Taxes.......................................................11
Section 3.08
Properties..................................................12
Section 3.09 Intellectual
Property.......................................13
Section 3.10 Agreements, Contracts, and
Commitments......................14
Section 3.11
Litigation..................................................15
Section 3.12 Environmental
Matters.......................................15
Section 3.13 Employee Benefit
Plans......................................16
Section 3.14 Compliance with
Laws........................................18
Section 3.15 Opinion of Financial
Advisor................................18
Section 3.16 Rights
Agreement............................................18
Section 3.17 Information
Supplied........................................18
Section 3.18 Labor
Matters...............................................18
Section 3.19
Insurance...................................................19
Section 3.20
Customers...................................................19
Section 3.21 Affiliate
Transactions......................................19
Section 3.22 Vote
Required...............................................19
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Section 3.23 State Takeover
Statutes.....................................20
ARTICLE IV REPRESENTATIONS AND WARRANTIES
OF PURCHASER AND SUB................20
Section 4.01 Organization of Purchaser
and Sub...........................20
Section 4.02 Authority; No Conflict;
Required Filings and Contracts......20
Section 4.03
Litigation..................................................21
Section 4.04 Compliance with
Laws........................................21
Section 4.05 Interim Operations of
Sub...................................21
Section 4.06
Financing...................................................21
Section 4.07 Information
Supplied........................................22
ARTICLE V CONDUCT OF
BUSINESS.................................................22
Section 5.01 Covenants of
Seller.........................................22
Section 5.02
Cooperation.................................................24
ARTICLE VI ADDITIONAL AGREEMENTS AND
COVENANTS................................25
Section 6.01 No
Solicitation.............................................25
Section 6.02 Proxy
Statement.............................................27
Section 6.03 Access to
Information.......................................28
Section 6.04 Seller Shareholders'
Meeting................................28
Section 6.05 Legal Conditions to
Merger..................................28
Section 6.06 Payment of
Taxes............................................29
Section 6.07 Public
Disclosure...........................................29
Section 6.08
Consents....................................................29
Section 6.09 Brokers or
Finders..........................................29
Section 6.10 Employees and Employee
Benefit Plans........................29
Section 6.11 Notification of Certain
Matters.............................30
Section 6.12 Additional Agreements;
Reasonable Efforts...................30
Section 6.13 Director and Officer
Liability..............................30
Section 6.14
Financing...................................................31
Section 6.15 Section 16
Matters..........................................31
ARTICLE VII CONDITIONS TO
MERGER..............................................32
Section 7.01 Conditions to Each Party's
Obligation To Effect the Merger..32
(a) Shareholder
Approval...................................32
(b) HSR
Act................................................32
(c) No Injunctions or
Restraints; Illegality...............32
Section 7.02 Additional Conditions to
Obligations of Purchaser and Sub...32
(a) Representations
and Warranties.........................32
(b) Performance of
Obligations of Seller...................33
(c)
Consents...............................................33
(d)
Financing..............................................33
(e) Seller Rights
Agreement................................33
(f) Dissenters'
Rights.....................................33
Section 7.03 Additional Conditions to
Obligations of Seller..............33
(a) Representations
and Warranties.........................33
(b) Performance of
Obligations of Purchaser and Sub........33
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(c)
Consents...............................................33
ARTICLE VIII TERMINATION AND
AMENDMENT........................................34
Section 8.01
Termination.................................................34
Section 8.02 Effect of
Termination.......................................35
Section 8.03 Fees and
Expenses...........................................35
Section 8.04
Amendment...................................................37
Section 8.05 Extension;
Waiver...........................................38
ARTICLE IX
MISCELLANEOUS......................................................38
Section 9.01 Nonsurvival of
Representations, Warranties, and Agreements..38
Section 9.02
Notices.....................................................38
Section 9.03
Interpretation..............................................39
Section 9.04
Counterparts................................................39
Section 9.05 Entire Agreement, No Third
Party Beneficiaries..............39
Section 9.06 Governing
Law...............................................39
Section 9.07
Assignment..................................................40
ARTICLE X
DEFINITIONS.........................................................40
Section 10.01
Subsidiary..................................................40
Section 10.02
Knowledge...................................................40
Section 10.03 Defined
Terms...............................................40
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT
AND PLAN OF MERGER (the "Agreement"), dated October 26,
2005, is by and among PATRIOT HOLDING
CORP., a Minnesota corporation
("Purchaser"), PATRIOT ACQUISITION CORP., a
Minnesota corporation and a wholly
owned subsidiary of Purchaser ("Sub"), and
TRANSPORT CORPORATION OF AMERICA,
INC., a Minnesota corporation
("Seller").
WHEREAS, the
Board of Directors of Seller (the "Seller Board"), based upon
the unanimous recommendation of a special
committee thereof consisting solely of
independent directors (the "Special
Committee"), has unanimously approved this
Agreement and the transactions contemplated
hereby, including the merger of Sub
with and into Seller (the "Merger"), has
determined that this Agreement and the
transactions contemplated hereby, including
the Merger, are advisable to, fair
to, and in the best interests of, the
holders of Seller Common Stock (the
"Shareholders" and, each a "Shareholder")
and has resolved (subject to the terms
and conditions of this Agreement) to
recommend that the Shareholders vote for
approval of this Agreement and the
transactions contemplated hereby, including
the Merger;
WHEREAS, prior
to the Effective Time, Purchaser may offer to certain
management Shareholders the opportunity to
contribute shares of Seller Common
Stock (the "Contributed Shares") to
Purchaser in exchange for equity in
Purchaser (the "Contribution"), which are
intended to be treated for federal
income tax purposes as a contribution of
such Shareholders' Contributed Shares
to Purchaser pursuant to Section 351 of the
Code;
WHEREAS, as a
condition and inducement to the willingness of Purchaser and
Sub to enter into this Agreement, certain
of Seller's shareholders are entering
into voting agreements with Seller,
Purchaser and Sub of even date herewith
covering an aggregate number of shares and
Seller Stock Options representing, at
the time of signing, 19.75% of Seller's
outstanding shares of Seller Common
Stock, whereby they agree to support the
Merger (the "Voting Agreements"");
WHEREAS, the
respective Boards of Directors of Purchaser and Sub have each
approved this Agreement, the Voting
Agreements and the Merger; and
WHEREAS,
Purchaser, concurrently with the execution and delivery of this
Agreement, is approving this Agreement and
the transactions contemplated hereby,
including the Merger, as the sole
shareholder of Sub.
NOW, THEREFORE,
in consideration of the foregoing premises and the
representations, warranties, covenants, and
agreements set forth herein and
other good and valuable consideration, the
receipt and adequacy of which are
hereby acknowledged, and intending to be
legally bound hereby, the parties
hereto agree as follows:
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ARTICLE I
THE MERGER
Section 1.01
THE MERGER. Upon the
terms and subject to satisfaction or
waiver of the conditions set forth in this
Agreement, and in accordance with the
Minnesota Business Corporation Act (the
"MBCA"), at the Effective Time, the
separate existence of Sub shall cease and
Sub shall be merged with and into
Seller (Sub and Seller are sometimes
referred to herein as the "Constituent
Corporations"). As a result of the Merger,
the separate corporate existence of
Sub shall cease and Seller shall continue
as the surviving corporation of the
Merger (the "Continuing Corporation") and
shall be a wholly owned subsidiary of
Purchaser.
Section 1.02
EFFECTIVE TIME OF THE
MERGER. Subject to the provisions of
this Agreement, articles of merger (the
"Articles of Merger") in such form as
required by the relevant provisions of the
MBCA shall be duly prepared,
executed, and acknowledged by the
Constituent Corporations, and thereafter
delivered to the Secretary of State of the
State of Minnesota as provided in the
MBCA. The Merger shall become effective
upon the filing of the Articles of
Merger with the Secretary of State of the
State of Minnesota or at such later
time thereafter as is provided in the
Articles of Merger (the "Effective Time").
Section 1.03
CLOSING. The closing
of the Merger (the "Closing") will take
place at 10:00 a.m., Minneapolis time, on a
date to be specified by Purchaser
and Seller, which shall be no later than
the second business day after
satisfaction or waiver (by the party or
parties entitled to the benefit thereof)
of all the conditions set forth in Article
VII (the "Closing Date"), at the
offices of Robins, Kaplan, Miller &
Ciresi L.L.P., 2800 LaSalle Plaza, 800
LaSalle Avenue, Minneapolis, Minnesota
55402-2015, unless another date or place
is agreed to in writing by Purchaser and
Seller. All actions taken at the
Closing shall be deemed to have been taken
simultaneously at the time the last
of any such actions is taken or
completed.
Section 1.04
EFFECTS OF THE MERGER.
The Merger shall have the effects set
forth in Section 302A.641 subd. 2 of the
MBCA.
Section 1.05
ARTICLES OF
INCORPORATION; BYLAWS. The Articles of
Incorporation of Seller in effect
immediately prior to the Effective Time shall
be, from and after the Effective Time, the
Articles of Incorporation of the
Continuing Corporation (the "Surviving
Charter"), until amended as provided in
the Surviving Charter or by applicable law.
The Bylaws of Sub in effect
immediately prior to the Effective Time
shall be, from and after the Effective
Time, the Bylaws of the Continuing
Corporation (the "Surviving Bylaws"), until
amended in accordance with the Surviving
Charter, the Surviving Bylaws or by
applicable law.
Section 1.06
OFFICERS AND
DIRECTORS. The officers and directors of Sub
immediately prior to the Effective Time
shall be the officers and directors of
the Continuing Corporation, until the
earlier of their resignation or removal or
until their respective successors are duly
elected and qualified, as the case
may be.
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ARTICLE II
CONTRIBUTION; CONVERSION OF SECURITIES
Section 2.01
CONTRIBUTION OF
SHARES. Immediately prior to the Effective
Time, any Contributed Shares to be
contributed by certain Shareholders to
Purchaser pursuant to the Contribution
shall be contributed by such Shareholders
to Purchaser in exchange for equity of
Purchaser, with the equity of Purchaser
to be issued in exchange for each
Contributed Share having a value equal to the
Merger Consideration, and shall be on terms
and conditions mutual acceptable to
Purchaser and such Shareholders, in lieu of
payment of the Merger Consideration
with respect to the Contributed Shares.
Section 2.02
CONVERSION OF CAPITAL
STOCK. At the Effective Time, by virtue
of the Merger and without any action on the
part of the Shareholders or holders
of any capital stock of Sub:
(a) CAPITAL
STOCK OF SUB. Each share of the capital stock of Sub
issued and
outstanding immediately prior to the Effective Time shall be
converted into
and become one fully paid and nonassessable share of Common
Stock, $0.01 par
value per share, of the Continuing Corporation.
(b) EXCHANGE
RATIO FOR SELLER COMMON STOCK. Each share of Seller
Common Stock
issued and outstanding immediately prior to the Effective Time
(other than the
Contributed Shares and the shares to be cancelled or
converted
pursuant to Section 2.02(c) or Section 2.06) shall be converted
into the right
to receive $10.00 in cash, without interest (the "Merger
Consideration").
(c) SELLER
COMMON STOCK HELD BY PURCHASER OR SUB. Each share of
Seller Common
Stock issued and outstanding immediately prior to the
Effective Time
and held by Purchaser or Sub shall be cancelled without any
consideration
being paid therefor.
The Merger
Consideration shall be appropriately adjusted to reflect any
stock split,
stock dividend, recapitalization, exchange, subdivision,
combination of,
or other similar change in Seller Common Stock following
the date of this
Agreement. As of the Effective Time, all shares of Seller
Common Stock
shall no longer be outstanding and shall automatically be
canceled and
retired and shall cease to exist, and holders of certificates
which
immediately prior to the Effective Time represented shares of
Seller
Common Stock
(the "Certificates") shall cease to have any rights with
respect thereto,
except the right to receive the Merger Consideration upon
surrender of
such Certificates in accordance with Section 2.05 (other than
as set forth in
Section 2.01, Section 2.02(c) or Section 2.06).
Section 2.03
SELLER STOCK
OPTIONS.
(a) Each
outstanding option to purchase shares of Seller Common
Stock (a "Seller
Stock Option") under Seller's 1986 Stock Option Plan, as
amended, 1995
Stock Plan, as amended, and the Non-Plan Non-Qualified Stock
Option Agreement
dated November 12, 2001 by and between Seller and Michael
J. Paxton (the
"Seller Option Plans"), whether vested or unvested, shall
either be
exercised by the holder thereof prior to the Effective Time or
be
cancelled
immediately prior to the Effective Time in exchange for payment
of an amount in
cash equal to the product of (i) the number of unexercised
shares of Seller
Common Stock subject to such Seller Stock Option
immediately
prior to the Effective Time and (ii) the excess, if any, of the
Merger
Consideration over the per share exercise price of such Seller
Stock
Option.
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(b) Prior to
the Effective Time, the Seller Board (or, if
appropriate, a
committee administering the stock plans of Seller) shall
amend Seller's
Employee Stock Purchase Plan (the "Seller ESPP") to halt
purchases under
the Seller ESPP such that no issuances of any shares of
Seller Common
Stock shall be made following the date of this Agreement.
(c)
Except as
provided herein or as otherwise agreed by the
parties, Seller
and the Seller Board (or, if appropriate, a committee
administering
the stock plans of Seller) shall take all actions reasonably
necessary prior
to or as of the Effective Time such that each of the Seller
Option Plans,
and any other plan, program or arrangement with any current
or former
employee, officer, director or consultant providing for the
issuance or
grant of any interest in respect of the capital stock of
Seller, shall
terminate as of the Effective Time. Seller and the Seller
Board (or, if
appropriate, a committee administering the stock plans of
Seller) shall
take all reasonably necessary actions to ensure that,
following the
Effective Time, no current or former employee, officer,
director or
consultant shall have any option to acquire any shares of
Seller Common
Stock or any other equity interest in Seller under the Seller
Option Plans or
any other plan, program or arrangement maintained by
Seller.
Section 2.04
TAX WITHHOLDING.
Purchaser or the Paying Agent shall be
entitled to deduct and withhold from any
amounts otherwise payable pursuant to
this Agreement to any Shareholder or other
person such amounts as Purchaser or
the Paying Agent is required to deduct and
withhold with respect to the making
of such payment under the Internal Revenue
Code of 1986, as amended, (the
"Code"), or any provision of state, local
or foreign tax law. To the extent that
amounts are so withheld by Purchaser or the
Paying Agent, such withheld amounts
shall be treated for all purposes of this
Agreement as having been paid to the
Shareholder or other person in respect of
which such deduction and withholding
was made by Purchaser or the Paying
Agent.
Section 2.05
EXCHANGE OF
CERTIFICATES.
(a) At or
prior to the Effective Time, Purchaser shall deposit,
or shall cause
to be deposited, with LaSalle Bank, N.A. (the "Paying
Agent"), for the
benefit of the Shareholders, for exchange in accordance
with this
Section 2.05, cash in an amount required to be paid pursuant to
this Article II
(such cash being hereinafter referred to as the "Exchange
Fund").
(b) After the
Effective Time (and in any event within two
business days of
the Effective Time), Purchaser shall cause the Paying
Agent to mail to
each holder of record of a Certificate or Certificates (i)
a letter of
transmittal in customary form 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
be in such form
and have such other provisions as Purchaser and Seller may
reasonably agree prior
to the Effective Time and (ii) instructions for
effecting the
surrender of the Certificates in exchange for the Merger
Consideration.
Upon surrender of a Certificate for cancellation to the
Paying Agent,
together with a duly executed and completed, in accordance
with its terms,
letter of transmittal, and such other documents as may
reasonably be
required by the Paying Agent, the holder of such Certificate
shall be
entitled to receive in exchange therefor, the amount of cash
which
the number of
shares of Seller Common Stock previously represented by such
Certificate
shall have been converted into the right to receive pursuant to
this Article II
and the Certificate so surrendered shall forthwith be
cancelled. No
interest will be paid or accrued on the Merger Consideration.
In the event of
a transfer of ownership of shares of Seller Common Stock
which is not
registered on the transfer records of Seller, payment of the
Merger
Consideration may be issued to such transferee if the
Certificate
representing
such shares of Seller Common Stock held by such transferee is
presented to the
Paying Agent, accompanied by all documents required to
evidence and
effect such transfer and to evidence that any applicable stock
transfer taxes
have been paid.
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(c) In case of
any lost, mislaid, stolen, or destroyed
Certificate, the
holder thereof may be required, as a condition precedent
to the delivery
to such holder of the consideration described in Section
2.02, to deliver
to Purchaser a bond in such reasonable sum as Purchaser
may direct as
indemnity against any claim that may be made against the
Paying Agent,
Purchaser, or the Continuing Corporation with respect to the
Certificate
alleged to have been lost, mislaid, stolen, or destroyed.
(d) After the
Effective Time, there shall be no transfers on the
stock transfer
books of the Continuing Corporation of the shares of Seller
Common Stock
that were outstanding immediately prior to the Effective Time.
If, after the
Effective Time, Certificates are presented to the Continuing
Corporation for
transfer, they shall be canceled and exchanged for the
consideration
described in Section 2.02.
(e) Any
portion of the Exchange Fund which remains undistributed
to holders of
Certificates 180 days after the Effective Time shall be
delivered to
Purchaser, upon demand therefor, and holders of Certificates
who have not
theretofore complied with this Section 2.05 shall thereafter
look only to
Purchaser for the Merger Consideration payable in respect of
such shares of
Seller Common Stock, without any interest thereon.
(f) None of
Purchaser, Sub, the Continuing Corporation or the
Paying Agent
shall be liable to any person in respect of any cash from the
Exchange Fund
delivered to a public official pursuant to any applicable
abandoned
property, escheat or similar law. If any Certificates shall not
have been
surrendered prior to two years after the Effective Time (or
immediately
prior to such earlier date on which any Merger Consideration
would otherwise
escheat to or become the property of any Governmental
Entity), any
such Merger Consideration shall, to the extent permitted by
applicable laws,
become the property of Purchaser, free and clear of all
claims or
interest of any person previously entitled thereto.
(g) The Paying
Agent shall invest the cash in the Exchange Fund,
as directed by
Purchaser, on a daily basis. Any interest and other income
resulting from
such investments shall be paid to Purchaser upon termination
of the Exchange
Fund pursuant to this Article II.
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Section 2.06
DISSENTING SHARES.
(a)
Notwithstanding any other provisions of this Article II,
shares of Seller
Common Stock outstanding immediately prior to the
Effective Time
and held by a Shareholder who has not voted in favor of the
Merger and who
has properly exercised dissenters' rights in respect of such
shares of Seller
Common Stock in accordance with Sections 302A.471 and
302A.473 of the
MBCA, shall not be converted into or represent a right to
receive the
Merger Consideration as provided in Section 2.02, but shall be
entitled to
receive the fair value of the shares represented thereby in
accordance with
Section 302A.473; provided, however, that, if any such
Shareholder
shall have failed to perfect or withdraws or otherwise loses
such
Shareholder's dissenters' rights, each such Shareholder's shares
of
Seller Common
Stock shall thereupon be deemed to have been converted as of
the Effective
Time into the right to receive the Merger Consideration,
without any
interest thereon, pursuant to Section 2.02. Shares of Seller
Common Stock in
respect of which dissenters' rights have been exercised
shall be treated
in accordance with Sections 302A.471 and 302A.473 of the
MBCA.
(b) Seller
shall give Purchaser prompt notice of any demands
received by
Seller, along with copies of all documents with respect to each
such demand, for
the exercise of dissenters' rights and the opportunity to
participate
jointly with Seller in all negotiations and proceedings with
respect to such
demands. Seller will not voluntarily make any payment with
respect to any
demands delivered to Seller in connection with the exercise
of dissenters'
rights and will not, except with the prior written consent
of Purchaser,
settle or offer to settle any such demands. If, after the
Effective Time,
such holder fails to perfect or withdraws or otherwise
loses the
dissenters' rights, such shares of Seller Common Stock shall be
treated as if
they had been converted as of the Effective Time into a right
to receive the
Merger Consideration as provided in Section 2.02.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller
represents and warrants to Purchaser and Sub that the
statements
contained in this Article III are true and
correct, except as set forth in the
disclosure schedule delivered by Seller to
Purchaser on or before the date of
this Agreement (the "Seller Disclosure
Schedule"). The Seller Disclosure
Schedule shall be arranged in paragraphs
corresponding to the numbered and
lettered paragraphs contained in this
Article III and the disclosures in any
paragraph shall qualify only the
corresponding paragraph in this Article III,
except where the information in any such
section is disclosed in such a manner
to make its relevance to any other
representation or warranty readily apparent,
in which case such section shall be deemed
to also qualify such other
representation and warranty.
Section 3.01
ORGANIZATION OF SELLER. Each of Seller and its Subsidiaries
(as defined in Section 10.01) is a
corporation duly organized, validly existing,
and in good standing under the laws of the
jurisdiction of its incorporation,
has all requisite corporate power to own,
lease, and operate its property and to
carry on its business as now being
conducted, and is duly qualified to do
business and is in good standing as a
foreign corporation in each jurisdiction
in which the failure to be so qualified
would have a Material Adverse Effect on
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Seller. For the purposes of any provision
of this Agreement, a "Material Adverse
Effect" with respect to any party shall be
deemed to occur if any event, change,
effect, condition, occurrence or
development, individually or in the aggregate
with such other events, changes, effects,
conditions, occurrences or
developments, has occurred which would have
or would reasonably be expected to
have a material adverse effect on (a) the
business, assets (including intangible
assets), liabilities (contingent or
otherwise), results of operations or
condition (financial or otherwise) of such
party and its subsidiaries taken as a
whole or (b) the ability of such party to
consummate the transactions
contemplated by this Agreement; provided,
however, that a Material Adverse
Effect shall not include any event, change,
effect, condition, occurrence or
development directly or indirectly arising
out of or attributable to (i)
conditions, events, or circumstances
generally affecting the economy as a whole
or Seller's industry as a whole, but only
to the extent that any such condition,
event or circumstance does not have a
disproportionate effect on Seller as
compared to its competitors, (ii) any
event, change, effect, condition,
occurrence or development resulting from or
arising out of the public
announcement of the execution of this
Agreement or the transactions contemplated
hereby or (iii) any event, change, effect,
condition, occurrence or development
caused by the taking of any action required
by this Agreement or the taking of
any action by Seller that has been approved
in writing by Purchaser. Except as
set forth in the Seller SEC Reports (as
defined in Section 3.04), neither Seller
nor any of its Subsidiaries directly or
indirectly owns any equity or similar
interest in, or any interest convertible
into or exchangeable or exercisable
for, any corporation, partnership, joint
venture, or other business association
or entity excluding securities in any
publicly traded company held for
investment by Seller and comprising less
than one percent of the outstanding
stock of such company.
Section 3.02
SELLER CAPITAL
STRUCTURE.
(a) The
authorized capital stock of Seller consists of 15,000,000
shares of Common
Stock ("Seller Common Stock") and 150,000 shares of
Preferred Stock
("Seller Preferred Stock"). On September 30, 2005, (i)
6,563,636 shares
of Seller Common Stock were outstanding, all of which were
validly issued,
fully paid, and nonassessable, and no other shares of
Seller Common
Stock had been issued as of such date, (ii) 700,505 shares of
Seller Common
Stock were subject to outstanding stock options under the
Seller Option
Plans and 59,115 shares of Seller Common Stock were reserved
for future
grants under the Seller Option Plans, (iii) 1,346 shares of
Seller Common
Stock were reserved for issuance pursuant to options
presently
accrued under the Seller ESPP and 58,485 shares of Seller
Common
Stock were
reserved for future issuance under the Seller ESPP, and (iv) an
aggregate of
75,000 shares of Seller's Series A Junior Participating
Preferred Stock
("Seller Junior Preferred Stock") were reserved for future
issuance
pursuant to the Rights Agreement, as amended, dated as of
February
25, 1997,
between Seller and Norwest Bank Minnesota, N.A., as Rights
Agent
(the "Seller
Rights Agreement"). Since September 30, 2005, no shares of
Seller Common
Stock have been issued except pursuant to the exercise of
options granted under
the Seller Option Plans or pursuant to the Seller
ESPP. None of
the shares of Seller Preferred Stock are issued and
outstanding.
There are no obligations, contingent or otherwise, of Seller
or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any
shares of Seller
Common Stock or the capital stock of any Subsidiary or to
provide funds to
or make any investment (in the form of a loan, capital
contribution, or
otherwise) in any such Subsidiary or any other entity. All
of the
outstanding shares of capital stock of each of Seller's
Subsidiaries
are duly
authorized, validly issued, fully paid, and nonassessable and
all
such shares are
owned by Seller free and clear of all security interests,
liens, claims,
pledges, agreements, limitations in Seller's voting rights,
charges, or
other encumbrances of any nature.
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(b) Except for
outstanding warrants, options granted under the
Seller Option
Plans or as reserved for future grants of options or rights
under the Seller
Option Plans, shares reserved for issuance under the
Seller ESPP, or
for the shares of Seller Junior Preferred Stock reserved
for issuance
under the Seller Rights Agreement, there are no equity
securities of
any class of Seller or any of its Subsidiaries, or any
security
exchangeable into or exercisable for such equity securities,
issued, reserved
for issuance, or outstanding. Except as set forth in this
Section 3.02,
there are no options, warrants, equity securities, calls,
rights,
commitments, or agreements of any character to which Seller or
any
of its
Subsidiaries is a party or by which it is bound obligating Seller
or
any of its
Subsidiaries to issue, deliver, or sell, or cause to be issued,
delivered, or
sold, additional shares of capital stock of Seller or any of
its Subsidiaries
or obligating Seller or any of its Subsidiaries to grant,
extend,
accelerate the vesting of, or enter into any such option,
warrant,
equity security,
call, right, commitment, or agreement. Seller is not a
party to, nor is
Seller aware of, any voting agreement, voting trust,
proxy, or other
agreements or understandings with respect to the shares of
capital stock of
Seller or any agreement, arrangement, or understanding
providing for
registration rights with respect to any shares of capital
stock of
Seller.
Section 3.03
AUTHORITY, NO
CONFLICT, REQUIRED FILINGS AND CONSENTS.
(a) Seller has
all requisite corporate power and authority to
enter into this
Agreement and to consummate the transactions contemplated
by this
Agreement. The execution and delivery of this Agreement and the
consummation of
the transactions contemplated by this Agreement and the
Voting
Agreements have been duly authorized by all necessary corporate
action on the
part of Seller, subject only to the approval of this
Agreement and
the Merger by Seller's shareholders under the MBCA. This
Agreement has
been duly executed and delivered by Seller and constitutes
the valid and
binding obligation of Seller, enforceable in accordance with
its terms.
(b) Subject to
approval of this Agreement and the Merger by
Seller's
shareholders, the execution and delivery of this Agreement by
Seller does not,
and the consummation of the transactions contemplated by
this Agreement
will not, (i) conflict with, or result in any violation or
breach of any
provision of the Articles of Incorporation or Bylaws of
Seller, (ii)
result in any violation or breach of, or constitute (with or
without notice
or lapse of time, or both) a default (or give rise to right
of termination,
cancellation, or acceleration of any obligation or loss of
any benefit)
under any of the terms, conditions, or provisions of any note,
bond, mortgage,
indenture, lease, contract, or other agreement, instrument,
or obligation to
which Seller or any of its Subsidiaries is a party or by
which any of
them or any of their properties or assets may be bound, and
where such
violation, breach or default would have a Material Adverse
Effect on
Seller, any of its Subsidiaries or on the transactions
contemplated by
this Agreement, or (iii) conflict with or violate any
permit,
concession, franchise, license, judgment, order, decree,
statute,
law, ordinance,
rule, or regulation applicable to Seller or any of its
Subsidiaries or
any of its or their properties or assets where such
conflict or
violation would have a Material Adverse Effect on Seller, any
of its
Subsidiaries or the transactions contemplated by this
Agreement.
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<PAGE>
(c) No
material consent, approval, order, or authorization of, or
registration,
declaration, or filing with, any court, administrative
agency, or
commission or other governmental authority or instrumentality
("Governmental
Entity") is required by or with respect to Seller or any of
its Subsidiaries
in connection with the execution and delivery of this
Agreement or the
consummation of the transactions contemplated hereby,
except for (i)
the filing of the pre-merger notification report under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
("HSR
Act"), (ii) the
filing of the Articles of Merger, (iii) the filing of the
Proxy Statement
(as defined in Section 3.17 below) with the Securities and
Exchange
Commission ("SEC") in accordance with the Securities Exchange
Act
of 1934, as
amended (the "Exchange Act"), and (iv) such consents,
approvals,
orders, authorizations, registrations, declarations, and
filings
as may be
required under the applicable federal and state securities laws
or under any
applicable requirement of any Department of Transportation.
Section 3.04
SEC FILINGS; FINANCIAL
STATEMENTS.
(a) Seller has
filed all forms, reports, and documents required
to be filed by
Seller with the SEC since January 1, 2002 (including all
exhibits, notes,
and schedules thereto and documents incorporated by
reference
therein) (collectively, the "Seller SEC Reports"). The Seller
SEC
Reports (i) at
the time filed, with respect to all of the Seller SEC
Reports other
than registration statements filed under the Securities Act
of 1933, as
amended (the "Securities Act"), or at the time of their
respective
effective dates, with respect to registration statements filed
under the
Securities Act, complied in all material respects with the
applicable
requirements of the Securities Act and the Exchange Act, as the
case may be, and
(ii) did not at the time filed or at the time of their
respective
effective dates, as the case may be (or if amended or
superseded
by a filing
prior to the date of this Agreement, then on the date of such
filing), contain
any untrue statement of a material fact or omit to state a
material fact
required to be stated in such Seller SEC Reports or necessary
in order to make
the statements in such Seller SEC Reports, in the light of
the
circumstances under which they were made, not misleading. None
of
Seller's
Subsidiaries is required to file any forms, reports, or other
documents with
the SEC.
(b) Each of
the consolidated financial statements (including, in
each case, any
related notes) contained in the Seller SEC Reports at the
time filed or at
the time of their respective effective dates, as the case
may be, complied
as to form in all material respects with the applicable
published rules
and regulations of the SEC with respect thereto, was
prepared in
accordance with generally accepted accounting principles
applied on a
consistent basis throughout the periods involved (except as
may be indicated
in the notes to such financial statements or, in the case
of unaudited
statements, as permitted by Form 10-Q of the SEC) and fairly
presented the
consolidated financial position of Seller and its
Subsidiaries at
the respective dates and the consolidated results of their
operations and
cash flows for the periods indicated, except that the
unaudited
interim financial statements were or are subject to normal and
recurring
year-end adjustments. The audited balanced sheet of Seller as
of
December 31,
2004 is referred to herein as the "Seller Balance Sheet."
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<PAGE>
(c) Seller has
complied in all material respects with the
applicable
provisions of the Sarbanes-Oxley Act of 2002 and the related
rules and
regulations promulgated under such act or the Exchange Act.
Seller has
previously made available to Purchaser copies of all
certificates
delivered by officers and employees of Seller, including
Seller's chief
executive officer and chief financial officer, to the Seller
Board or any
committee thereof pursuant to the certification requirements
relating to
Seller's 2004 Form 10-K for the year ended December 31, 2004.
The management
of Seller has (i) implemented disclosure controls and
procedures (as defined in
Rule 13a-15(e) of the Exchange Act) to ensure
that material
information relating to Seller and its Subsidiaries is made
known to the
management of Seller by others within those entities and (ii)
disclosed, based
on its most recent evaluation, to the Seller's outside
auditors and the
audit committee of the Seller Board (A) all significant
deficiencies and
material weaknesses in the design or operation of internal
control over
financial reporting (as defined in Rule 13a-15(f) of the
Exchange Act)
that are reasonably likely to materially affect the Seller's
ability to
record, process, summarize and report financial data and (B)
any
fraud, whether
or not material, that involves management or other employees
who, in each
case, have a significant role in Seller's internal control
over financial
reporting.
(d) As used in
this Section 3.04, the term "file" shall be
broadly
construed to include any manner in which a document or
information
is furnished,
supplied or otherwise made available to the SEC.
Section 3.05
NO UNDISCLOSED
LIABILITIES. Except as disclosed in the Seller
SEC Reports, Seller and its Subsidiaries do
not have any liabilities, either
accrued or contingent (whether or not
required to be reflected in financial
statements in accordance with generally
accepted accounting principles), and
whether due or to become due, the effect of
which, individually or in the
aggregate, would reasonably be expected to
have a Material Adverse Effect on
Seller and its Subsidiaries, taken as a
whole, other than (i) liabilities
reflected in the Seller Balance Sheet and
(ii) normal or recurring liabilities
incurred since December 31, 2004, in the
ordinary course of business consistent
with past practices.
Section 3.06
ABSENCE OF CERTAIN
CHANGES OR EVENTS. Since the date of the
Seller Balance Sheet, Seller and its
Subsidiaries have conducted their
businesses only in the ordinary course and
in a manner consistent with past
practice and, since such date, there has
not occurred (i) any Material Adverse
Effect on Seller and any of its
Subsidiaries, taken as a whole, (ii) any damage,
destruction, or loss (whether or not
covered by insurance) with respect to any
property of Seller or any of its
Subsidiaries having a Material Adverse Effect
on Seller and its Subsidiaries, taken as a
whole, (iii) any material change by
Seller in its accounting methods,
principles, or practices, or (iv) any material
revaluation by Seller of any of its
material assets.
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<PAGE>
Section 3.07 TAXES.
(a) All Tax
Returns (as defined herein) required to be filed by
Seller or any of
its Subsidiaries have been duly filed on a timely basis.
All such Tax
Returns were complete and accurate in all material respects.
All Taxes shown
to be due on such Tax Returns, and all material Taxes
otherwise
required to be paid by Seller or any of its Subsidiaries have
been timely
paid. All Taxes due and payable by Seller and its Subsidiaries
have been
adequately provided for in the financial statements of Seller
and
its Subsidiaries
for all periods ending through the date hereof.
(b) There are
no audits or administrative proceedings, court
proceedings or
claims pending against Seller or any of its Subsidiaries
with respect to
any Taxes, no assessment, deficiency or adjustment has been
asserted or
proposed or threatened with respect to any Taxes or Tax Return
of or with
respect to Seller or any of its Subsidiaries that has not been
paid in full or
fully resolved in favor of the taxpayer, and there are no
liens for Taxes
upon the assets or properties of Seller or any of its
Subsidiaries, except liens
for Taxes not yet due. No issue has been raised
by any taxing
authority in any presently pending Tax audit that could
reasonably be
expected to have a Material Adverse Effect on Seller or any
of its
Subsidiaries after the Effective Time.
(c) There are
not in force any waivers of agreements,
arrangements, or
understandings by or with respect to Seller or any of its
Subsidiaries of
or for an extension of time for the assessment or payment
of any Taxes. Neither
Seller nor any of its Subsidiaries has received a
written ruling
of a taxing authority relating to Taxes or entered into a
written and
legally binding agreement with a taxing authority relating to
Taxes that would
have a continuing effect after the Closing Date.
(d) Neither
Seller nor any of its Subsidiaries requested any
extension of
time within which to file any Tax Return, which Tax Return has
not yet been
filed, or executed or filed any power of attorney with any
taxing
authority.
(e) Each of
Seller and its Subsidiaries has withheld and paid in
all material
respects all Taxes required to have been withheld and paid in
connection with
amounts paid or owing to any employee, creditor,
independent
contractor or other third party.
(f) Neither
Seller nor any of its Subsidiaries has any obligation
under any
agreement (either with any person or any taxing authority) with
respect to
Taxes.
(g) Neither
Seller nor any of its Subsidiaries has constituted
either a
"distributing corporation" or a "controlled corporation"
(within
the meaning of
Section 355(a)(1)(A) of the Code) in a distribution of stock
qualifying for
tax-free treatment under Section 355 of the Code since the
effective date
of Section 355(e) of the Code.
(h) Neither
Seller nor any of its Subsidiaries has (i) been a
member of an
affiliated group of corporations within the meaning of Section
1504 of the
Code, other than the affiliated group of which Seller is the
common parent or
(ii) any material liability for the Taxes of any other
person (other
than Seller or any of its Subsidiaries) under any state,
local or foreign
law, as a transferee or successor, by contract, or
otherwise.
11
<PAGE>
(i) No written
claim that could give rise to Taxes has been made
by a taxing
authority in a jurisdiction where Seller or any of its
Subsidiaries
does not file Tax Returns that Seller or any of its
Subsidiaries is
or may be subject to taxation in that jurisdiction.
(j) The Seller
has provided or made available to Purchaser
correct and
complete copies of (i) all income and franchise Tax Returns of
Seller and its
Subsidiaries for the preceding three taxable years and (ii)
any audit report
issued within the last three years (or otherwise with
respect to any
audit or proceeding in progress) relating to income or
franchise Taxes
of Seller or any of its Subsidiaries.
(k) Neither
Seller nor any of its Subsidiaries has entered into a
transaction that
has been identified by published guidance as a listed
transaction
under Treas. Reg. Section 1.6011-4(b)(2).
(l) Neither
Seller nor any of its Subsidiaries has been a United
States real
property holding corporation within the meaning of Section
897(c)(2) of the
Code during the applicable period specified in Section
897(c)(l)(A)(ii)
of the Code.
(m) For
purposes of this Agreement, (i) "Taxes" shall mean taxes
of any kind
(including those measured by or referred to as income,
franchise, gross
receipts, sales, use, ad valorem, profits, license,
withholding,
payroll, employment, excise, severance, stamp, occupation,
premium, value
added, property, windfall profits, customs, duties or
similar fees,
assessments or charges of any kind whatsoever) together with
any interest and
any penalties, additions to tax or additional amounts
imposed by any
taxing authority with respect thereto, domestic or foreign
and shall
include any transferee or successor liability in respect of
taxes
(whether by
contract or otherwise) and any several liability in respect of
any tax as a
result of being a member of any affiliated, consolidated,
combined,
unitary or similar group and (ii) "Tax Returns" shall mean any
return, report,
claim for refund, estimate, information return or statement
or other similar
document relating to or required to be filed with any
taxing authority
with respect to Taxes, including any schedule or
attachment
thereto, and including any amendment thereof.
Section 3.08
PROPERTIES.
(a) Seller has
provided to Purchaser a true and complete list of
all real
property owned by Seller or its Subsidiaries and real property
leased by Seller
or its Subsidiaries pursuant to leases (collectively, the
"Leases" and,
together with the owned real property, the "Real Property"),
and the name of
the lessor, the date of the Lease and each amendment to the
Lease, and the
aggregate annual rental or other fees payable under any such
Lease. The Real
Property has access, sufficient for the conduct of the
business of
Seller and its Subsidiaries as now conducted or as presently
proposed by
Seller to be conducted, to public roads and to all utilities
used in the
operation of the business at that location.
12
<PAGE>
(b) Seller
holds a valid and existing leasehold interest under
each of the
Leases. Seller has delivered to Purchaser complete and accurate
copies of each
of the Leases (including all notices exercising renewal,
expansion,
termination or other material rights under the Leases), and
none
of the Leases
has been modified in any material respect, except to the
extent that the
copies delivered to Purchaser disclose such modifications.
Neither Seller
nor any Subsidiary has leased or sublet, as lessor,
sublessor,
licensor or the like, any of the Real Property. No Lease is
subject to any
prime, ground or master lease, mortgage, deed of trust or
other
encumbrance or interest which would entitle the interest holder
to
interfere with
or disturb Seller's or any Subsidiary's rights under the
Lease while
Seller or such Subsidiary is not in default under the Lease.
Neither Seller
nor any Subsidiary is in material default, and no
circumstances
exist which, if unremedied, would, either with or without
notice or the
passage of time or both, result in such material default by
Seller or any of
its Subsidiaries under any of the Leases; nor, to the
Knowledge of
Seller, is any other party to any of the Leases in material
default.
(c) Seller and
its Subsidiaries own, or lease under valid leases,
all of the
buildings, fixtures, leasehold improvements, computers,
equipment and
other tangible and intangible assets, including, without
limitation, all
trucks, cabs and other rolling stock, necessary for the
conduct of the
business of Seller or its Subsidiaries as now conducted and
presently
proposed to be conducted, all of which, collectively, are in
good
condition and
repair, ordinary wear and tear excepted, and are usable in
the ordinary
course of business.
(d) Except for
leased or licensed property, Seller and its
Subsidiaries own
good and marketable title to each of the properties and
assets used by
Seller or its Subsidiaries, located on the premises of
Seller or its
Subsidiaries, or reflected on the Seller Balance Sheet or
acquired since
the date thereof.
Section 3.09
INTELLECTUAL
PROPERTY.
(a) Seller and
its Subsidiaries own or license all patents,
trademarks,
trade names, service marks, copyrights, any applications for
the foregoing, and any tangible or
intangible proprietary information (the
"Intellectual
Property") that is material or necessary to its business.
Schedule 3.09 of
the Seller Disclosure Schedule lists and describes all
registered
Intellectual Property, copyrights and proprietary software
owned
or licensed by
Seller or any Subsidiary, including identifying each
jurisdiction in
which applications have been filed or rights issued. All of
the Intellectual
Property rights are valid and enforceable in all material
respects, and
Seller has no Knowledge of facts showing, and has received no
written notice
of any party asserting, that any of the Intellectual
Property rights
are invalid or not enforceable. The business of Seller and
its Subsidiaries
as currently conducted does not infringe, misuse,
misappropriate,
or conflict with the Intellectual Property rights of others
in a way that is
likely to have a Material Adverse Effect on Seller and its
Subsidiaries,
taken as a whole. Either Seller or its Subsidiaries owns and
possesses all
right, title and interest, or holds a valid license, in and
to all of the
Intellectual Property in all material respects, free and
clear of any
material encumbrance, without any material conflict with the
rights of
others, and has taken all action necessary to protect the
Intellectual
Property in all material respects. No claim by any third party
contesting the
validity of any of the Intellectual Property has been made,
received, is
currently outstanding or, to the Knowledge of Seller, is
threatened or
reasonably expected to arise.
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<PAGE>
(b) Seller or
any of its Subsidiaries owns or has a valid and
enforceable
right to use all computer software and systems used by Seller
or any of its
Subsidiaries in the operation of their business as presently
conducted or
proposed to be conducted, without taking into account the
transactions
contemplated hereby ("Internal Use Software"), without any
conflict with
the rights of others. Seller and any of its Subsidiaries do
not use, rely on
or contract with any Person to provide services bureau,
outsourcing or
other computer processing services which are material to
Seller or its
Subsidiaries, in lieu of or in addition to their use of the
Internal Use
Software. Seller or any of its Subsidiaries has the right to
use all
databases Seller and its Subsidiaries use internally (the
"Databases"),
and neither Seller nor any of its Subsidiaries has received
any written
notice alleging that Seller's or any Subsidiary's use,
reproduction or
distribution of the Databases infringes any third party's
rights. Neither
Seller nor the Subsidiaries sell or license the Databases
to third
parties. Neither Seller nor any of its Subsidiaries has done
anything to
compromise the secrecy, confidentiality, ownership, rights in
or to, or value
of any of the Intellectual Property. Seller and its
Subsidiaries
have taken all reasonable security measures to protect the
secrecy,
confidentiality and value of the Intellectual Property.
Section 3.10
AGREEMENTS, CONTRACTS,
AND COMMITMENTS.
(a) Seller has
not breached, or received in writing any claim or
threat that it
has breached, any of the terms and conditions of any
agreement,
contract, or commitment required to be filed as an exhibit to
the Seller SEC
Reports ("Seller Material Contracts") in such a manner as
would permit any
other party to cancel or terminate the same or would
permit any other
party to seek material damages from Seller under any
Seller Material
Contract. Each Seller Material Contract that has not
expired or been
terminated is in full force and effect and is not subject
to any material
default thereunder of which Seller is aware by any party
obligated to
Seller pursuant to Seller Material Contracts.
(b) Except as
set forth in Seller SEC Reports filed prior to the
date of this
Agreement or as provided for in this Agreement, neither Seller
nor any of its
Subsidiaries is a party to any oral or written (i)
consulting
agreement providing for annual payments by Seller or any of its
Subsidiaries in
excess of $100,000, (ii) agreement with any executive
officer or other
key employee of Seller or any of its Subsidiaries the
benefits of
which are contingent or vest, or the terms of which are
materially
altered, upon the occurrence of a transaction involving Seller
or any of its
Subsidiaries of the nature contemplated by this Agreement,
(iii) agreement
with respect to any executive officer or other key employee
of Seller or any of its
Subsidiaries providing any term of employment or
compensation
guarantee, (iv) agreement or plan, including any stock option,
stock
appreciation right, restricted stock or stock purchase plan, any
of
the benefits of
which will be increased, or the vesting of the benefits of
which will be
accelerated, by the occurrence of any of the transactions
contemplated by
this Agreement or the value of any of the benefits of which
will be
calculated on the basis of any of the transactions contemplated
by
this Agreement,
(v) agreement that would restrict Seller's or any
Subsidiary's
ability to compete in any business in any location, (vi)
agreements
concerning a partnership or joint venture, (vii) loan
agreements,
promissory notes, security agreements, deeds of trust and other
agreements
relating to indebtedness for borrowed money or deferred
purchase
price of
property (other than trade payables arising in the ordinary
course
of business),
(viii) any agreement relating to business acquisitions or
dispositions not
yet consummated, including any separate Tax or
indemnification
agreements, and (ix) any other agreement that would be
required to be
filed as an exhibit to an Annual Report on Form 10-K of
Seller if Seller
were to file such a report on the date of this Agreement
(assuming for
this purpose that the fiscal year covered thereby ended on
the date of this
Agreement).
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<PAGE>
(c) All Seller
Material Contracts and such other agreements
required to be
disclosed in Section 3.10 of the Seller Disclosure Schedule
are valid and
binding and are in full force and effect and enforceable
against Seller
or its Subsidiaries in accordance with their respective
terms, except as
to the effect, if any, of (i) applicable bankruptcy or
other similar
laws affecting the rights of creditors generally, (ii) rules
of law governing
specific performance, injunctive relief and other
equitable
remedies and (iii) to the extent applicable, the enforceability
of provisions
regarding indemnification in connection with the sale or
issuance of
securities. Neither Seller nor any of its Subsidiaries is in
material
violation or breach of or default under, or has received notice
of
any material
violation or breach of or default under, any such Seller
Material
Contracts or other agreements required to be disclosed in
Section
3.10 of the Seller
Disclosure Schedule. To the Knowledge of Seller, no
other party to a
Seller Material Contract or any other agreement required
to be disclosed
in Section 3.10 of the Seller Disclosure Schedule is in
material
violation or breach of or default under any such Seller
Material
Contract or
other such agreement, as the case may be.
Section 3.11
LITIGATION. Except as
described in the Seller SEC Reports,
there are no claims, actions, suits,
investigation or proceedings pending or, to
the Knowledge of Seller, threatened against
or affecting Seller or any of its
Subsidiaries or any of their respective
assets or properties, at law or in
equity, before or by any Federal, state,
municipal or other governmental agency
or authority, foreign or domestic, or
before any arbitration board or panel,
wherever located, which would, or could
reasonably be expected to, require
payments by Seller or any of its
Subsidiaries in excess of $100,000 individually
or $1,000,000 in the aggregate, not fully
recoverable from insurance.
Section 3.12
ENVIRONMENTAL
MATTERS.
(a) Within the
last three years, Seller has conducted its
business
operations in compliance, in all material respects, with all
applicable
Environmental Laws and has obtained and maintained in full
force
and effect all
material permits, licenses, approvals and other governmental
authorizations
required under any Environmental L
