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ADVANCED POWER TECHNOLOGY, INC. | POWERSICEL, INC. | POWERSICEL ACQUISITION CORPORATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 2.4
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
AMONG
ADVANCED POWER TECHNOLOGY, INC.
POWERSICEL, INC.
AND
POWERSICEL ACQUISITION CORPORATION
, 2004
TABLE OF CONTENTS
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”) is made and entered into as of December [ ], 2004 (the “ Agreement Date ”) by and among Advanced Power Technology, Inc., a Delaware corporation (“ Parent ”), PowerSicel Acquisition Corporation, a Colorado corporation that is a wholly-owned subsidiary of Parent (“ Sub ”), PowerSicel, Inc., a Colorado corporation (“ Company ”), and Paul Jacobi, as representative of the shareholders of the Company (the “ Representative ”).
RECITALS
A. The parties intend that, subject to the terms and conditions hereinafter set forth, Sub will merge with and into Company (the “ Merger ”), with Company to be the surviving corporation of the Merger, all pursuant to the terms and conditions of this Agreement and applicable law.
B. The Boards of Directors, or a duly authorized committee thereof, of Parent, Sub and Company have determined that the Merger is in the best interests of their respective companies and stockholders or shareholders, as applicable, of each of Parent, Sub and Company have approved and declared advisable an Agreement and Plan of Merger substantially in the form of this Agreement and, accordingly, have agreed to effect the Merger provided for herein upon the terms and conditions of this Agreement.
C. Concurrently with the execution and delivery of this Agreement, certain key employees of the Company, as identified on Exhibit F , are executing and delivering employment agreements pursuant to which such employees shall continue their employment with Company, effective upon the Closing (as defined in Section 3.1 ), for a period of at least three years following the Closing.
D. Concurrently with the execution and delivery of this Agreement, the Company has obtained unanimous written shareholder consent for the approval of the Merger and the adoption of this Agreement from all of the outstanding shares of Company Common Stock and Company Preferred Stock (each as defined below).
E. Upon the Effective Time (as defined in Article 1 ), and subject to the terms and conditions hereof, (i) the shares of capital stock of Company that are outstanding immediately prior to the Effective Time will be converted into the right to receive a certain amount of cash from Parent, (ii) all options to purchase capital stock of Company under the Company Plan shall be assumed or replaced with options to purchase Parent Common Stock subject to and on the terms provided herein, (iv) all other rights to purchase capital stock of Company that are outstanding immediately prior to the Effective Time shall terminate, and (iii) Sub will be merged with and into Company, in each case, as provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and conditions contained herein, the parties hereby agree as follows:
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CERTAIN DEFINITIONS
As used in this Agreement, the following terms will have the meanings set forth below:
“ Affidavit ” has the meaning given in Section 3.2.1 .
“ Agreement ” has the meaning given in the introductory paragraph.
“ Agreement Date ” has the meaning given in the introductory paragraph.
“ Alternative Transaction ” means any commitment, agreement or transaction, other than as contemplated by this Agreement, involving or providing for (a) the possible disposition of all or any substantial portion of Company’s business, assets or capital stock, whether by way of merger, consolidation, sale of assets, sale of stock, stock exchange, tender offer and/or any other form of business combination, or (b) any initial public offering of capital stock or other securities of Company pursuant to a registration statement filed under the Securities Act.
“ Articles of Merger ” means the Articles of Merger in substantially the form attached hereto as Exhibit A .
“ Balance Sheet ” has the meaning given in Section 4.8 .
“ Balance Sheet Date ” has the meaning given in Section 4.8 .
“ Cash Consideration ” means (i) Merger Consideration, less (ii) the Company Option Consideration.
“ Closing ” has the meaning given in Section 3.1 .
“ Closing Date ” has the meaning given in Section 3.1 .
“ Code ” shall mean the Internal Revenue Code of 1986, as amended.
“ Colorado Law ” means The Colorado Business Corporations Act.
“ Common Stock Distribution Amount ” means that portion of the Cash Consideration equal to an amount per share of Company Common Stock to be distributed in accordance with the provisions of Section A.2 of the Company’s Articles of Incorporation, including all amendments thereto, as more fully set forth in the Consideration Allocation Certificate.
“ Company ” has the meaning given in the introductory paragraph.
“ Company Ancillary Agreements ” has the meaning given in Section 4.3 .
“ Company Business ” means the business of Company as presently conducted, and shall also include any products of Company currently under development.
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“ Company Certificates ” has the meaning given in Section 3.2.1 .
“ Company Common Stock ” means the common stock of Company.
“ Company Disclosure Schedule ” has the meaning given in the introductory paragraph of Article 4 .
“ Company Financial Statements ” has the meaning given in Section 4.8 .
“ Company IP Rights ” has the meaning given in Section 4.13.1 .
“ Company IP Rights Agreements ” has the meaning given in Section 4.13.2 .
“ Company-Licensed IP Rights ” has the meaning given in Section 4.13.1 .
“ Company Material Agreements ” has the meaning given in Section 4.11 .
“ Company-Owned IP Rights ” has the meaning given in Section 4.13.1 .
“ Company Option Consideration ” means an amount equal to the product of all shares of Parent Common Stock that will be issuable upon exercise of the Parent Options into which the Company Options convert times the Parent Common Stock Value.
“ Company Options ” has the meaning given in Section 2.2.1 .
“ Company Plan ” has the meaning given in Section 2.2.2 .
“ Company Preferred Stock ” means the Series A Preferred.
“ Company Shareholders ” means the record holders of issued and outstanding Company Stock immediately prior to the Effective Time.
“ Company Shareholders’ Approval ” means the irrevocable approval by all Company Shareholders to the adoption of this Agreement and the transactions contemplated thereby.
“ Company Stock ” means Company Common Stock and Company Preferred Stock.
“ Consideration Allocation Certificate ” has the meaning given in Section 2.1.2 .
“ Contested Claim ” has the meaning given in Section 11.8.2 .
“ Damage Threshold ” has the meaning in Section 11.3.1 .
“ Damages ” has the meaning given in Section 11.2 .
“ Effective Time ” means the date and time on which the Merger first becomes legally effective under the laws of the State of Colorado as a result of the filing with the Colorado Secretary of State of the Articles of Merger meeting the requirements of Colorado Law.
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“ Employee Plans ” has the meaning given in Section 4.16.3 .
“ Employment Agreement ” has the meaning given in Section 6.12 .
“ Encumbrance ” means, with respect to any asset, any mortgage, deed of trust, lien, pledge, charge, security interest, title retention device, collateral assignment, claim, charge, restriction or other encumbrance of any kind in respect of such asset (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset), excluding Permitted Encumbrances.
“ Environmental Law ” means any federal, state or local statute, law regulation or other legal requirement relating to pollution or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including any law or regulation relating to emissions, discharges, releases or threatened releases of any Material of Environmental Concern, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of any Material of Environmental Concern.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.
“ Escrow Agent ” means U.S. Bank National Association.
“ Escrow Agreement ” has the meaning given in Section 2.3 .
“ Escrow Fund ” has the meaning given in Section 2.3 .
“ Escrow Release Date ” has the meaning given in Section 2.3 .
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Governmental Authority ” means any federal, state, or local, domestic, foreign or supranational governmental, regulatory, or self-regulatory authority, agency, court, tribunal, commission, or other governmental, regulatory, or self-regulatory entity, or any other political subdivision thereof, or any agency or instrumentality of any such governmental or political subdivision, or any other entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government.
“ Governmental Permits ” has the meaning given in Section 4.14.3 .
“ Intellectual Property ” means, collectively, all worldwide industrial and intellectual property rights, including patents, patent applications, patent rights, trademarks, trademark registrations and applications therefor, trade dress rights, trade names, service marks, service mark registrations and applications therefor, copyrights, copyright registrations and applications therefor, mask work rights, mask work registrations and applications therefor, franchises, licenses, trade secrets, or know-how, (collectively “ Intellectual Property Rights ”), and all rights in and to any Internet domain names, Internet and World Wide Web URLs or addresses,
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inventions, customer lists, supplier lists, proprietary processes and formulae, software source code and object code, algorithms, net lists, architectures, structures, screen displays, photographs, images, layouts, inventions, development tools, designs, blueprints, specifications, technical drawings (or similar information in electronic format) and all documentation and media constituting, describing or relating to the foregoing, including manuals, programmers’ notes, memoranda and records.
“ Knowledge ” means, with respect to any fact, circumstance, event or other matter in question as of the Agreement Date or as of the Effective Time, as applicable, the actual knowledge of such fact, circumstance, event or other matter of (a) an individual, if used in reference to an individual, or (b) any executive officer of such party, if used in reference to Company or any Person that is not an individual. Any such individual executive officer will be deemed to have actual knowledge of a particular fact, circumstance, event or other matter if such knowledge could have been obtained through reasonable inquiry by such Person.
“ Legal Requirements ” means any federal, state, local, municipal, foreign or other law, statute, constitution, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“ Material Adverse Change ” or “ Material Adverse Effect ,” when used with reference to any entity or group of related entities, means any event, change, violation or effect that is or is reasonably likely to be, individually or in the aggregate, materially adverse to the condition (financial or otherwise), properties, employees, assets (including intangible assets), operations or results of operations of such entity and its Subsidiaries, taken as a whole with its Subsidiaries; provided , however , that in no event shall (i) a change in the price of the publicly traded stock of Parent; (ii) changes in general economic conditions or changes affecting the industry generally in which Parent or Company operates; or (iii) any adverse change or effect resulting from (A) compliance by Company with the terms of this Agreement, including any action taken by the Company at Parent’s direction, any action referred to in Section 6.3 taken by the Company with Parent’s consent, and the failure to take any action referred to in Section 6.3 that was not taken by the Company because Parent withheld its consent, (B) the announcement of the Merger or the pendency or consummation of the transactions contemplated by this Agreement (including, without limitation, any cancellations of or delays in customer orders, any reduction in sales or profits, any disruption in supplier, distributor, partner or similar relationships or any loss of employees), (C) the incurring of legal, accounting, or other fees or expenses in connection with the transactions contemplated by this Agreement (but not including any collateral or secondary effects resulting from the incurrence of such fees), or (D) in the case of the Company, any breach by Parent or Sub of any provision of this Agreement, constitute, in and of itself (individually or in combination), or be taken into account in determining whether there has been, a Material Adverse Change or Material Adverse Effect in Parent or Company, as the case may be.
“ Material of Environmental Concern ” means any chemicals, pollutants, contaminants, wastes, toxic substances, petroleum and petroleum products and any other substance that is currently regulated by an Environmental Law or that is otherwise a danger to health, reproduction or the environment
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“ Merger ” has the meaning given in Recital A.
“ Merger Consideration ” means consideration in the aggregate amount of approximately $5,850,000, payable in the form of cash and the Company Option Consideration as herein provided.
“ Non-Disclosure Agreement ” has the meaning given in Section 12.14 .
“ Notice of Claim ” has the meaning given in Section 11.5 .
“ Option Exchange Ratio ” shall mean the price equal to the Common Stock Distribution Amount for each share of Company Common Stock divided by the Parent Common Stock Value.
“ Parent ” has the meaning given in the introductory paragraph.
“ Parent Ancillary Agreements ” has the meaning given in Section 5.2.1 .
“ Parent Common Stock ” has the meaning given in Section 2.2.2 .
“ Parent Common Stock Value ” means a price of $7.2920 per share of Parent Common Stock.
“ Parent Disclosure Schedule ” has the meaning given in the introductory paragraph of Article 4.
“ Parent Indemnified Person ” has the meaning given in Section 11.2.1 .
“ Person ” means any individual, corporation (including any not-for-profit corporation), partnership, limited liability partnership, joint venture, estate, trust, firm, company (including any limited liability company or joint stock company), association, organization, entity or Governmental Authority.
“ Permitted Encumbrance ” shall mean (a) liens for taxes and assessments or governmental charge or levies not at the time due or in respect of which the validity thereof shall currently be contested in good faith by appropriate proceedings; (b) liens in respect of pledges or deposits under workers’ compensation laws or similar legislation, carriers’, warehousemen’s, mechanics’, laborers’, materialmen’s, contractor’s and similar liens, if the obligations secured by such liens are not then delinquent or are being contested in good faith by appropriate proceedings; (c) statutory liens to secure obligations to landlords, lessors or renters under leases or rental agreements; and (d) such imperfections of title and encumbrances, if any, which do not detract from the value or interfere with the present use of the property subject thereto or affected thereby.
“ Pro Rata Share ” means each Company Shareholder’s pro rata interest in the Escrow Fund, as indicated in the Consideration Allocation Certificate.
“ Regulations ” has the meaning given in Section 4.7.1 .
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“ Representative ” means Paul Jacobi.
“ Requirements of Law ” means , with respect to any Person, any law (including common law), ordinance judgment, order, decree, injunction, permit, statute, treaty, rule or regulation or determination of (or an agreement with) an arbitrator or a Governmental Authority, in each case binding on that Person or any amount of its property or assets.
“ SEC ” means the Securities and Exchange Commission.
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Series A Preferred ” means the Company’s Series A Preferred Stock, par value $0.01 per share.
“ Series A Preferred Stock Distribution Amount ” means that portion of the Cash Consideration equal to an amount per share of Series A Preferred to be distributed in accordance with the provisions of Section A.2 of the Company’s Articles of Incorporation, including all amendments thereto, as more fully set forth in the Consideration Allocation Certificate.
“ Sub ” has the meaning given in the introductory paragraph.
“ Sub Ancillary Agreements ” has the meaning given in Section 5.2.1 .
“ Subsidiary ” of a specified entity means any corporation, partnership, limited liability company, joint venture or other legal entity of which the specified entity (either alone or through or together with any other subsidiary) owns, directly or indirectly, 50% or more of the stock or other equity or partnership interests the holders of which are generally entitled to vote for the election of the Board of Directors or other governing body of such corporation or other legal entity.
“ Surviving Corporation ” has the meaning given in Section 2.4 .
“ Tax or Taxes ” means all federal, state, local and foreign income, alternative or add-on minimum income, gains, franchise, excise, property, property transfer, sales, use, employment, license, payroll, services, ad valorem, documentary, stamp, withholding, occupation, recording, value added or transfer Taxes, governmental charges, fees, customs duties, levies or assessments (whether payable directly or by withholding), and, with respect to any such Taxes, any estimated Tax, interest, fines and penalties or additions to Tax and interest on such fines, penalties and additions to Tax.
“ Tax Return or Tax Returns ” means all reports, estimates, declarations of estimated Tax, information statements and returns relating to, or required to be filed in connection with, any Taxes, including information returns or reports with respect to backup withholding and other payments to third parties.
“ Terminating Party ” has the meaning given in Section 10.3 .
“ Termination Date ” means January 17, 2005.
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“ Third-Party Claim ” has the meaning given in Section 11.6.1 .
“ Uncertificated Shares ” means uncertificated shares of Company Stock issuable upon the exercise of any Company Options between the Agreement Date and the Effective Time.
THE MERGER
2.1 Effect of Merger on Capital Stock .
2.1.1 Conversion of Sub Stock . At the Effective Time upon the terms and conditions of this Agreement, and in accordance with the Colorado Law, each share of Sub common stock that is issued and outstanding immediately prior to the Effective Time will be converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each certificate evidencing ownership of shares of Sub common stock will evidence ownership of such shares of common stock of the Surviving Corporation.
2.1.2 Effect on Company Stock . Subject to the terms and conditions of this Agreement, at the Effective Time, each share of Company Stock held by a Company Shareholder that is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without the need for any further action on the part of the holder thereof (except as expressly provided herein), be converted into and represent the right to receive such portion of the Cash Consideration as set forth below and as more fully set forth on a consideration allocation certificate to be delivered by the Company at Closing (the “ Consideration Allocation Certificate ”).
(a) Each holder of Company Preferred Stock issued and outstanding immediately prior to the Effective Time shall be entitled to receive the Series A Preferred Distribution Amount for each share of Company Preferred Stock.
(b) Each holder of Company Common Stock issued and outstanding immediately prior to the Effective Time shall be entitled to receive the Common Stock Distribution Amount for each share of such Company Common Stock.
2.2 Company Options .
2.2.1 Options, Warrants and Other Rights . Other than as explicitly provided in Section 2.2.2 below, no options, warrants or other rights to purchase Company Common Stock (collectively, “ Company Options ”), shall be assumed by Parent.
2.2.2 Options . At the Effective Time, each outstanding Company Option under the Company’s 2002 Incentive Stock Option Plan, as amended (the “ Company Plan ”) will be assumed by Parent and converted into an option to purchase shares of Parent Common Stock (each a “ Parent Option ”) as set forth in this Section 2.2.2 . Schedule 2.2.2 hereto sets forth a true and complete list as of the date hereof of all holders of outstanding Company Options, including the number of shares of Company Common Stock subject to each such Company Option, the exercise or vesting schedule, the exercise price per share and the term of each such Company
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Option. Each Company Option assumed by Parent under this Agreement shall retain its respective vesting schedule, and shall continue to be subject to the terms and conditions set forth under its respective stock option agreement and the Company Plan, except that (i) each such Company Option will be exercisable for that number of whole shares of Common Stock of Parent (“ Parent Common Stock ”) equal to the product of the number of shares of Company Common Stock that would be issuable upon exercise of such Company Option immediately prior to the Effective Time, assuming that all vesting conditions applicable to such Company Option were then satisfied, multiplied by the Option Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock, and the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such assumed or replaced Company Option will be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Option was exercisable immediately prior to the Effective Time by the Option Exchange Ratio, rounded up to the nearest whole cent. Except as set forth on Schedule 2.2.2 or as contemplated by Section 6.3 , the Company shall not accelerate the exercisability or vesting of such Company Options or the shares of Parent Common Stock which will be subject to those options upon the assumption of the Company Options in connection with the Merger. As soon as practicable after the Effective Time, Parent shall deliver to each holder of an outstanding Company Option an appropriate notice, including a prospectus in the form required by Form S-8 under the Securities Act, setting forth such holder’s rights pursuant thereto and that such Company Option shall continue in effect on the same terms and conditions (subject to the adjustments required by this Section 2.2.2 after giving effect to the Merger).
2.3 Escrow . At the Effective Time, Parent will withhold from the amounts of cash to be paid to Company Shareholders in the Merger in respect of their Company Stock pursuant to Section 2.1.2 , each such Company Shareholder’s Pro Rata Share of 10% of the Cash Consideration as set forth in the Consideration Allocation Certificate (such withheld amount of cash, the “ Escrow Fund ”). At the Effective Time, Parent shall deposit with the Escrow Agent the Escrow Fund and Escrow Agent will hold the Escrow Fund as security for the indemnification obligations of the Company Shareholders for Damages under Article 11 and an Escrow Agreement in substantially the form attached hereto as Exhibit B to be entered into among the Company, Parent and the Representative (the “ Escrow Agreement ”), until the day twelve (12) months after the Closing Date (the “ Escrow Release Date ”).
2.4 Effects of the Merger . At and upon the Effective Time:
(a) the separate existence of Sub will cease and Sub will be merged with and into Company, and Company will be the surviving corporation of the Merger (sometimes referred to herein as the “ Surviving Corporation ”) pursuant to the terms of this Agreement, the Articles of Merger and Colorado Law.
(b) the Articles of Incorporation of the Surviving Corporation will be amended in their entirety to read as set forth in the Articles of Merger filed with the Colorado Secretary of State;
(c) the Bylaws of Sub will continue unchanged and be the Bylaws of the Surviving Corporation immediately after the Effective Time;
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(d) each share of Company Stock that is outstanding immediately prior to the Effective Time and will be converted into the right to receive cash as provided in this Article 2 ;
(e) subject to obtaining any required consents, and in accordance with Colorado Law, each Company Option shall be assumed or replaced by Parent and converted into a Parent Option as provided in Section 2.2.2 ;
(f) each share of Sub common stock that is outstanding immediately prior to the Effective Time will be converted into one validly issued, fully paid and nonassessable share of common stock, no par value per share, of the Surviving Corporation as provided in Section 2.1.1 ;
(g) the officers of the Surviving Corporation immediately after the Effective Time will be those individuals who were the officers of Sub immediately prior to the Effective Time, and each such individual shall, immediately after the Effective Time, hold the same office or offices of the Surviving Corporation as the office or offices that such individual held with Sub immediately prior to the Effective Time;
(h) the members of the Board of Directors of the Surviving Corporation immediately after the Effective Time will be those individuals who were the members of the Board of Directors of Sub immediately prior to the Effective Time; and
(i) the Merger will, from and after the Effective Time, have all of the effects provided by applicable law.
2.5 Further Assurances . If, at any time after the Effective Time, any further instruments, deeds, assignments, assurances or other actions are reasonably necessary or desirable to vest the Surviving Corporation with all of the rights and property of the Company or to carry out the purposes and intent of this Agreement, the officers and directors of Company and Sub are fully authorized on behalf of Company or Sub, as the case may be, to execute and deliver all such proper instruments, deeds, assignments and assurances and do all other things necessary or desirable to carry out the purposes and intent of this Agreement.
CLOSING MATTERS
3.1 Closing . Subject to termination of this Agreement as provided in Article 10 , the closing of the transactions to consummate the Merger (the “Closing”) will take place at the offices of Davis Wright Tremaine LLP, 130 SW Fifth Avenue, Suite 2300, Portland, Oregon 97201at 2:00 p.m., Pacific Time on January 7, 2005, provided, that on such date the conditions to Closing set forth in Article 8 and Article 9 have been satisfied and/or waived in accordance with this Agreement, or at such other place, time or date as Parent and Company may mutually agree (the “ Closing Date ”). Concurrently with the Closing or at such later date and time as may be mutually agreed by Parent and Company, the Articles of Merger will be filed with the Colorado Secretary of State.
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3.2 Exchange .
3.2.1 At the Effective Time, shares of Company Stock outstanding as of immediately prior to the Effective Time will, by virtue of the Merger and without further action, be cancelled and extinguished, and all such shares will be automatically converted into the right to receive from Parent, and shall be exchangeable for, the amount of cash to which the holder thereof is entitled pursuant to Section 2.1.2 , subject to the provisions of this Section 3.2 .
(a) Promptly following the Agreement Date, Parent shall exchange, for those amounts distributable pursuant to Section 2.1.2 hereof, certificates (the “ Company Certificates ”) and Uncertificated Shares, in each case representing shares of Company Stock outstanding as of immediately prior to the Effective Time. Prior to the Effective Time, Parent shall set aside and make available, an amount equal to the Cash Consideration to be paid in respect of Company Stock outstanding as of immediately prior to the Effective Time. As promptly as reasonably practicable following the Closing, and in any event within two business days, Parent shall send to each Company Shareholder, (i) a letter of transmittal in substantially the form attached hereto as Exhibit D and (ii) instructions for use in effecting the exchange of Company Certificates and Uncertificated Shares for the cash payment distributable pursuant to Section 2.1.2 .
(b) Each holder of Company Stock that, by virtue of the Merger, has been canceled and extinguished and automatically converted into the right to receive the Cash Consideration shall be entitled to receive, upon surrender to Parent of (i) a Company Certificate (or upon delivery of an affidavit of lost certificate and an indemnity in form and substance satisfactory to Parent (an “ Affidavit ”)), provided , however , that the holders of Uncertificated Shares identified as such on the Consideration Allocation Certificate shall not be required to comply with clause (i) with respect to such Uncertificated Shares; together with (ii) a properly executed and completed letter of transmittal, the Cash Consideration payable for each share of Company Stock represented by such Company Certificate, Affidavit, or Uncertificated Shares, as the case may be.
3.2.2 After the Effective Time there will be no further registration of transfers on the stock transfer books of Company or its transfer agent of any shares of capital stock of Company that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Company Certificates or an Affidavit are presented for any reason, they will be cancelled and exchanged as provided in this Section 3.2 .
3.2.3 Until Company Certificates representing shares of Company Stock that are outstanding immediately prior to the Effective Time are surrendered pursuant to Section 3.2.1 , such Company Certificates will be deemed, for all purposes, to evidence only ownership of the right to receive cash in the amounts determined in accordance with the provisions of Section 2.1.2 .
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REPRESENTATIONS AND WARRANTIES OF COMPANY
Except as set forth in the letter addressed to Parent from Company and dated as of the Agreement Date (including all schedules thereto) which has been delivered by Company to Parent concurrently herewith (the “ Company Disclosure Schedule ”), Company hereby makes the representations and warranties to Parent contained in this Article 4 . For all purposes of this Agreement, the statements contained in the Company Disclosure Schedule shall also be deemed to be representations and warranties made and given by Company under Article 4 of this Agreement.
4.1 Organization and Good Standing . Company is a corporation duly organized and validly existing under the laws of the State of Colorado. Company has the corporate power and authority to own, operate and lease its properties and to carry on its business as now conducted and as currently proposed to be conducted, and is qualified or licensed to do business and is in good standing in each jurisdiction in which the failure to be so qualified or licensed would have a Material Adverse Effect on Company. Company has delivered to Parent true and complete copies of its currently effective Articles of Incorporation and Bylaws, each as amended to date. Company is not in violation of its Articles of Incorporation or Bylaws.
4.2 Subsidiaries . Company has no Subsidiaries or any equity or ownership interest, whether direct or indirect, in, or loans to, any corporation, partnership, limited liability company, joint venture or other business entity. Company is not obligated to make, nor bound by any agreement or obligation to make, any investment in or capital contribution in or on behalf of any other entity.
4.3 Power , Authorization and Validity; Power and Authority . Company has the right, power, legal capacity, and authority to enter into and perform its obligations under this Agreement and all agreements and documents to which Company is or will be a party that are required to be executed pursuant to this Agreement (the “ Company Ancillary Agreements ”). The execution, delivery and performance of this Agreement and the Company Ancillary Agreements have been duly and validly approved and authorized by the board of directors of the Company.
4.3.1 No Consents . No consent, approval, permit, order or authorization from, or registration, declaration, or filing with, any Governmental Authority (in its capacity as an entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government) is necessary or required to be made or obtained by Company at or prior to the Effective Time in order to enable Company to lawfully execute and deliver, enter into, and to perform its respective obligations under, this Agreement or the Company Ancillary Agreements, and for Company to consummate the Merger, except for the filing of the Articles of Merger with the Colorado Secretary of State.
4.3.2 Enforceability . This Agreement has been, and as of the Closing Date, the Company Ancillary Agreements will be, duly executed and delivered by Company. This Agreement is a valid and binding obligation of Company enforceable against Company in
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accordance with its terms, assuming the due authorization, execution and delivery by the other parties hereto and binding effect hereof on such other parties and subject only to the effect now or hereafter, if any, of (a) applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting the rights of creditors generally and (b) rules of law and equity governing specific performance, injunctive relief, and other equitable remedies.
4.4 Capitalization of Company; Outstanding Securities . The authorized capital stock of Company consists entirely of: (a) Six Million, Eighty-Six Thousand, Five Hundred and Fifty-Eight (6,086,558) shares of Company Common Stock, of which, as of the Agreement Date, a total of Seven Hundred Three Thousand Four Hundred and Seventy (703,470) shares are issued and outstanding, and (b) Two Million, Four Hundred Thirteen Thousand, Four Hundred and Forty-Two (2,413,442) shares of Company Preferred Stock, which are designated Series A Preferred and of which, One Million Four Hundred Five Thousand Eight Hundred and Seventy-Three (1,405,873) are issued and outstanding. The numbers of issued and outstanding shares of Company Common Stock and Company Preferred Stock held by each of the Company Shareholders are set forth in Schedule 4.4 of the Company Disclosure Schedule. Except as expressly set forth in Schedule 4.4 of the Company Disclosure Schedule, no shares of Company Common Stock or Company Preferred Stock are issued or outstanding as of the Agreement Date. As of the Agreement Date, an aggregate of Three Hundred Twenty Seven Thousand, Four Hundred and Fifty-Six (327,456) shares of Company Common Stock are reserved and authorized for issuance pursuant to outstanding Company Options. True and complete copies of each agreement for each Company Option have been delivered by Company to Parent.
4.4.1 Valid Issuance Other than shares of Company Common Stock issued upon the exercise of Company Options listed on Schedule 2.2.2 , as of the Closing Date, there will have been no change in the authorized or outstanding capital stock of Company as represented in Section 4.4 above. All issued and outstanding shares of Company Stock have been duly authorized and validly issued, are fully paid and nonassessable, are not subject to any preemptive right, right of first refusal, right of first offer or right of rescission, and have been offered, issued, sold and delivered by Company in compliance with (a) all registration or qualification requirements (or applicable exemptions therefrom) of all applicable securities laws (both state and federal) and other applicable Legal Requirements and (b) all requirements set forth in applicable agreements or instruments.
4.4.2 No Other Options, Warrants or Rights . Other than as set forth above in this Section 4.4 or as set forth in Schedule 4.4.2 of the Company Disclosure Schedule, there are no options, warrants, stock appreciation rights, convertible securities or other securities, calls, commitments, conversion privileges, preemptive rights, rights of first refusal, rights of first offer or other rights or agreements outstanding to purchase or otherwise acquire (whether directly or indirectly) any shares of Company’s authorized but unissued capital stock or any securities convertible into or exchangeable for any shares of Company’s capital stock or obligating Company to grant, issue, extend, or enter into any such option, warrant, convertible security or other security, call, commitment, conversion privilege, preemptive right, right of first refusal, right of first offer or other right or agreement to obtain any shares of Company’s capital stock, and there is no liability for dividends accrued but unpaid. No bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for
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securities having the right to vote) on any matters on which stockholders of the Company may vote, are issued or outstanding.
4.4.3 No Voting Arrangements or Registration Rights . There are no voting agreements, voting trusts, or proxies applicable to any of Company’s outstanding capital stock or any Company Options or to the conversion of any shares of Company’s capital stock in the Merger pursuant to any agreement or obligation to which Company or, to Company’s knowledge, pursuant to any other agreement or obligation. Company is not under any obligation to register under the Securities Act any of its presently outstanding shares of stock or other securities or any stock or other securities that may be subsequently issued.
4.5 No Conflict . Neither the execution and delivery of this Agreement nor any of the Company Ancillary Agreements by Company, nor the consummation by the Company of the Merger or any of the other transactions contemplated hereby or thereby, will (a) conflict with, or (with or without notice or lapse of time, or both) result in a termination, breach, impairment or violation of, or constitute a default under, (i) any provision of the Articles of Incorporation or Bylaws of Company, as currently in effect, or (ii) any Requirements of Law or (iii) any material instrument, obligation, or agreement to which Company is a party or by which its properties or assets are bound, or result in the creation of any lien, charge or other encumbrance (other than Permitted Encumbrances) upon any of the properties of Company under the terms of any note, bond, mortgage or indenture or any other material instrument, obligation or agreement, or (b) except as set forth in Schedule 4.5 of the Company Disclosure Schedule, require the consent, approval, assignment, notice, release, waiver, authorization, or other certificate of any third party to ensure that, following the Effective Time, any Company Material Agreement to which Company is a party or by which Company or any of its assets or properties are bound continues to be in full force and effect without any breach or violation thereof by the Company. Except as set forth in Schedule 4.5 of the Company Disclosure Schedule, neither Company’s entering into this Agreement, nor the consummation of the Merger or any other transaction contemplated by this Agreement or any Company Ancillary Agreement, will give rise to, or trigger the application of, any rights of any third party that would come into effect upon the consummation of the Merger to terminate or cancel any obligation of such third party pursuant to any Company Material Agreement or to accelerate any obligations of Company pursuant to any Company Material Agreement.
4.6 Litigation . There is no action, suit, arbitration, mediation, proceeding, claim or, to Company’s knowledge, investigation pending against Company (or against any officer, director, employee or agent of Company in their capacity as such or relating to their employment, services or relationship with Company) before any court, Governmental Authority or arbitrator, nor, to Company’s knowledge, has any such action, suit, arbitration, mediation, proceeding, claim or investigation been threatened. There is no judgment, decree, injunction, rule or order of any court, Governmental Authority or arbitrator outstanding against Company. To Company’s knowledge, there is no reasonable basis for any Person to assert a claim against Company based upon: (a) Company’s entering into this Agreement, any Company Ancillary Agreement, or consummating the Merger or any of the transactions contemplated by this Agreement or any Company Ancillary Agreement; (b) any claim that Company has agreed to sell or dispose of all or any substantial portion of its assets or business or shares of Company Stock to any party other than Parent, whether by way of merger, consolidation, sale or assets or
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otherwise; (c) any wrongful failure by Company to issue any of its stock or other securities to any party; (d) any rights under any agreement among Company and the Company Shareholders; or (e) a claim of ownership of, or options, warrants or other rights to acquire ownership of, any shares of the capital stock of Company or any rights as a Company Shareholder, including any option, warrant or preemptive rights or rights to notice or to vote.
4.7 Taxes .
4.7.1 Except as set forth in Schedule 4.7.1 of the Company Disclosure Schedule, the Company has timely filed all material federal, state, local, and foreign Tax and information Tax Returns and reports required by law to be filed by it prior to the Effective Time, has timely paid all Taxes required to be paid by it as shown on such Tax Returns, except to the extent that an accrual or reserve for such Taxes has been reflected on the Balance Sheet, has established an adequate accrual or reserve for the payment of all Taxes payable in respect of the periods subsequent to the periods covered by its most recent applicable Tax Returns (which accrual or reserve as of the Balance Sheet Date is fully reflected on the Balance Sheet and in any more recent balance sheet of Company provided by Company to Parent on or before the Agreement Date), has made all required estimated Tax payments and, as of the Balance Sheet Date, has no liability for Taxes in excess of the amount so paid or accruals or reserves so established. The amount of Company’s liability for unpaid Taxes for all periods ending on or before the Effective Time shall not, in the aggregate, exceed the amount of the current liability accrual or reserve for Taxes (excluding reserves for deferred Taxes), as such accrual or reserve is reflected on the Balance Sheet, as adjusted for operations and transactions in the ordinary course of business since the Balance Sheet Date in accordance with past custom and practice. All such Tax Returns and reports are true, correct, and complete in all respects, and Company has provided Parent with true and correct copies of all federal and state income or franchise Tax Returns for the Company for all periods since inception as well as any other Tax Returns and reports that have been requested by Parent. Except as set forth in Schedule 4.7.1 of the Company Disclosure Schedule, Company is not delinquent in the payment of any Tax or in the filing of any Tax Returns, and, to the Company’s knowledge, no deficiencies for any Tax have been threatened, claimed, proposed or assessed against Company. Company has not received any notification from the Internal Revenue Service or any other taxing authority regarding any potential assessments that: (a) are currently pending before the Internal Revenue Service or any other taxing authority (including, but not limited to, any sales or use Tax authority) regarding Company Taxes, or (b) have been raised by the Internal Revenue Service or other taxing authority and not yet finally resolved. No Tax Return of Company is, to the Company’s knowledge, under audit by the Internal Revenue Service or any other taxing authority, and any such past audits (if any) have been completed and fully resolved and all Taxes and any penalties or interest determined by such audit to be due from Company have been paid in full to the applicable taxing authorities. No Tax liens are currently in effect against any assets of Company other than liens which arise by operation of law for Taxes not yet due and payable. There is not in effect any waiver by Company of any statute of limitations with respect to any Taxes or agreement to any extension of time for filing any Tax Return which has not been filed, and Company has not consented to extend to a date later than the date hereof the period in which any Tax may be assessed or collected by any Governmental Authority. Company is not a “personal holding company” within the meaning of Section 542 of the Code. Company has not filed any election under Section 341(f) of the Code. Company has withheld all material Taxes required to be withheld, and paid such withheld amounts to the appropriate taxing authority within the time prescribed by law. Since its inception, Company has not been a “United States real property holding corporation,” as defined
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in Section 897(c)(2) of the Code, and in Section 1.897-2(b) of the Treasury Regulations issued thereunder (the “ Regulations ”). Company is neither a party to, nor has any obligation under, any Tax-sharing, Tax indemnity or Tax allocation agreement or arrangement. Company has never been involved in a distribution, either as a distributing corporation or a controlled corporation, in a transaction qualifying, or intended to be qualified, under Section 355 of the Code. Company has never been a member of an affiliated group filing consolidated Tax Returns. Company has disclosed on its federal income Tax Returns all positions taken therein that could give rise to a substantial understatement penalty within the meaning of Section 6662 of the Code.
4.7.2 The Company is not obligated to make any “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), nor will any excess parachute payment be deemed to have occurred as a result of or arising out of the Merger to the extent Section 280G of the Code is applicable to Company.
4.8 Financial Statements . The Company has delivered to Parent its audited financial statements (balance sheet and statement of operations) at December 31, 2003 and for the fiscal year then ended, and its unaudited financial statements (balance sheet, statement of operations and statement of cash flows) as at and for the nine-month period ended September 30, 2004 (the “ Company Financial Statements ”). The Company Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis. The Company Financial Statements fairly present the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein. Without limitation of the foregoing, the Company Financial Statements prepared as of September 30, 2004 (“ Balance Sheet Date ”) have been prepared in accordance with generally accepted accounting principles for interim financial information necessary, subject to changes resulting from normal year-end adjustments for recurring accruals and to the absence of footnote disclosure. Except as set forth or adequately provided for in the balance sheet at the Balance Sheet Date (“ Balance Sheet ”), the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to the Balance Sheet Date and (ii) liabilities not yet due and payable or obligations under contracts and commitments listed in Schedule 4.11 of the Company Disclosure Schedule and not required under generally accepted accounting principles to be reflected on the Balance Sheet or otherwise in the Company Financial Statements and (iii) those incurred pursuant to or in connection with the execution, delivery or performance of this Agreement. Except as disclosed in the Company Financial Statements, the Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation.
4.9 Title to Properties . Company has good and marketable title to, or a valid leasehold interest in, all of the assets and properties used in Company’s business, free and clear of all Encumbrances, other than liens for current Taxes that are not yet due and payable and except for liens which in the aggregate do not secure more than $25,000 in liabilities. All machinery, vehicles, equipment, and other tangible personal property owned or leased by Company or used in its business are in good condition and repair, normal wear and tear excepted, and all leases of real or personal property to which Company is a party are fully effective and afford Company peaceful and undisturbed leasehold possession of the real or personal property that is the subject of the lease. Company is not in violation of any zoning, building, safety, or environmental ordinance, regulation or requirement or other law or regulation applicable to the operation of its owned or leased properties, nor has Company received any notice of violation of
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any Requirements of Law with which it has not complied. Company does not own any real property. Schedule 4.9 of the Company Disclosure Schedule sets forth a true, complete, and accurate list and a brief description of all real and personal property owned or leased by Company with an individual value of $25,000 or greater, and the record owner of any such leased property.
4.10 Absence of Certain Changes . Except as set forth in Schedule 4.10 of the Company Disclosure Schedule, between the Balance Sheet Date and the Agreement Date, there has not been with respect to Company any:
(a) Material Adverse Change;
(b) amendment or change in the Articles of Incorporation or Bylaws;
(c) incurrence, creation or assumption by Company of (i) any Encumbrance on any of the assets or properties of Company, (ii) any indebtedness for borrowed money (other than with respect to expense reimbursement commitments to officers, directors and employees, incurred in the ordinary course of business, consistent with past practice), or (iii) any contingent liability as a guarantor or surety with respect to the obligations of others;
(d) grant or issuance of any options, warrants or other rights to acquire from Company, directly or indirectly, except as described in Section 4.4 , or any offer, issuance or sale by Company of, any debt or equity securities of Company;
(e) acceleration or release of any vesting condition to the right to exercise any option, warrant, or other right to purchase or otherwise acquire any shares of Company’s capital stock, or any acceleration or release of any right to repurchase shares of Company’s capital stock upon any shareholder’s termination of employment or services with Company or pursuant to any right of first refusal;
(f) payment or discharge by Company of any liability of Company or Encumbrance on any asset or property of Company in an amount in excess of $10,000 for any liability or Encumbrance, other than payments or discharges by Company in the ordinary course of business, consistent with past practices;
(g) purchase, license, sale, assignment or other disposition or transfer, or any agreement or other arrangement for the purchase, license, sale, assignment or other disposition or transfer, of any of the assets, properties, or goodwill of Company, other than purchases, licenses, sales, assignments, or other dispositions or transfers in the ordinary course of business, consistent with past practices;
(h) damage, destruction, or loss of any material property or asset, whether or not covered by insurance;
(i) declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock of Company, or any split, combination or recapitalization of the capital stock of Company or any direct or indirect redemption, purchase or
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other acquisition of any capital stock of Company or any change in any rights, preferences, privileges or restrictions of any outstanding security of Company;
(j) change or increase in the compensation, including severance compensation, payable or to become payable to any of the officers, directors, employees or consultants of Company or in any bonus or pension, insurance or other benefit payment or arrangement (including stock awards, stock option grants, stock appreciation rights or stock option grants) made to or with any of such officers, employees or agents, other than changes or increases in the ordinary course of business, consistent with past practices;
(k) change with respect to the management or other key personnel of Company;
(l) obligation or liability incurred by Company to any of its officers, directors or shareholders, except for normal and customary compensation and expense allowances payable to Company officers and directors in the ordinary course of Company’s business, consistent with its past practice;
(m) making by Company of any loan, advance or capital contribution to, or any investment in, any officer, director or shareholder of Company or any firm or business enterprise in which any such Person had a direct or indirect material interest at the time of such loan, advance, capital contribution or investment;
(n) entering into, amendment of, relinquishment, termination or non-renewal by Company of any contract, lease, transaction, commitment, or other right or obligation that would constitute a Company Material Agreement if in effect on the Agreement Date, other than in the ordinary course of business, consistent with its past practice, or any written or oral indication or assertion by the other party thereto of any material problems with Company’s services or performance under such contract;
(o) to the Company’s Knowledge, assertion by any customer of Company of any material complaint regarding Company’s services or products that has not been addressed or is being addressed by Company by such methods that Company employs in the ordinary course of business, consistent with past practices;
(p) agreement made by Company to provide exclusive services to any Person or not to engage in any type of business activity;
(q) material change in the manner in which Company extends discounts, credits or warranties to customers or otherwise deals with its customers;
(r) entering into by Company or any transaction, contract, of agreement that by its terms requires or contemplates a current and/or future financial commitment, expense (inclusive of overhead expenses) or obligation on the part of Company that involves in excess of $20,000 or that is not entered into in the ordinary course of the Company Business, consistent with past practice;
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(s) license, transfer, or grant of a right under any Company IP Rights, other than non-exclusive licenses to end user customers in the ordinary course of business, consistent with past practice;
(t) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Company or any material revaluation by Company of any of its material assets;
(u) action taken by the Company, that if taken after the date hereof, would violate Section 6.3 (b), (c), (i)-(l), (o), (r), (s), (u) , or (v) of this Agreement; or
(v) action taken by Company that is not in the ordinary course of Company Business, consistent with past practice.
4.11 Contracts and Commitments/Licenses and Permits . Schedule 4.11 of the Company Disclosure Schedule sets forth a list of each of the following written or oral contracts, agreements, leases, licenses, permits, assignments, mortgages, transactions, obligations, commitments, or other instruments to which Company is a party or to which Company or any of its assets or properties is bound:
(a) any contract or agreement providing for payments (whether fixed, contingent or otherwise) by or to Company in an aggregate amount of $50,000 or more;
(b) any contract providing for the development of any software, content (including textual content and visual, photographic or graphics content), technology or intellectual property for (or for the benefit or use of) Company, or providing for the purchase or license of any software, content (including textual content and visual, photographic or graphics content), technology, or intellectual property to (or for the benefit or use of) Company, which software, content, technology, or intellectual property is in any manner used or incorporated (or is contemplated by Company to be used or incorporated) in connection with any aspect or element of any product, service or technology of Company (other than software generally available to the public at a per copy license fee of less than $500 per copy);
(c) any joint venture or partnership contract or other agreement which has involved, or is reasonably expected to involve, a sharing of profits, expenses or losses with any other party;
(d) any contract or commitment for or relating to the employment of any officer, employee or consultant of Company or any other type of contract or understanding with any officer, employee or consultant of Company that is not immediately terminable by Company without cost or other liability;
(e) any indenture, mortgage, trust deed, promissory note, loan agreement, security agreement, guarantee or other agreement or commitment for the borrowing of money, for a line of credit or for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board;
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(f) any lease or other agreement under which Company is lessee of or holds or operates any items of tangible personal property or real property owned by any third party;
(g) any agreement, contract, covenant, or license that restricts Company from engaging in any aspect of its business, from participating or competing in any line of business or market, from freely setting prices for Company’s products, services, or technologies (including, but not limited to, most favored customer pricing provisions), from engaging in any business in any market or geographic area, or from soliciting potential employees, consultants, contractors, or other suppliers or customers;
(h) any Company IP Rights Agreement other than object code licenses of commercial off-the-shelf computer software under shrink-wrap or other non-negotiated agreements having a cost of less than $500 per seat;
(i) any agreement relating to the sale, issuance, grant, exercise, award, purchase, repurchase, or redemption of any shares of capital stock or other securities of Company or any options, warrants, or other rights to purchase or otherwise acquire any such shares of capital stock, other securities or options, warrants, or other rights therefor;
(j) any contract with or commitment to any labor union;
(k) any Governmental Permit;
(l) any contract, commitment, or agreement relating to the acquisition by Company of any operating business or the capital stock of any other Person; and
(m) any broker, exclusive dealing, or exclusivity, distributor, dealer, manufacturers’ representative, reseller, agency, and sales promotion contracts or agreements involving payments in excess of $10,000, or any other contract or agreement that compensates any Person, other than employees or consultants of Company, based on any sales by Company.
A true and complete copy of each agreement or document required by these subsections (a) through (m) of this Section 4.11 to be listed on Schedule 4.11 of the Company Disclosure Schedule (such agreements and documents being herein collectively referred to as the “ Company Material Agreements ”) and a copy of each Governmental Permit required by subsection (k) of this Section 4.11 to be listed on Schedule 4.11 of the Company Disclosure Schedule has been delivered to Parent’s legal counsel.
4.12 No Default ; No Restrictions
4.12.1 Company is not, nor to Company’s knowledge is any other party, in material breach or default under any Company Material Agreement. No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) could reasonably be expected to, (i) result in a violation or breach by Company, or to Company’s knowledge, by any other p | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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