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Agreement and Plan of Merger

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MONSTER WORLDWIDE, INC. | MERLIN GLOBAL ACQUISITION, INC | MONSTER WORLDWIDE, INC | RANDSTAD NORTH AMERICA, INC

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Title: AGREEMENT AND PLAN OF MERGER among
Governing Law: Delaware     Date: 8/9/2016
Industry: Business Services     Law Firm: Dechert;Jones Day     Sector: Services

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Exhibit 2.1

 

EXECUTION COPY

 

 

 

 

 

 

 

 

AGREEMENT AND PLAN OF MERGER

among

 
MONSTER WORLDWIDE, INC.

 
RANDSTAD NORTH AMERICA, INC.

 
and

 
MERLIN GLOBAL ACQUISITION, INC.

 
August 8, 2016

 

 

 

 

 

 


 

TABLE OF CONTENTS

 

 

 

Page

ARTICLE 1    DEFINITIONS

2

Section 1.01.    Definitions

2

Section 1.02.    Other Definitional and Interpretative Provisions

15

 

 

ARTICLE 2    THE OFFER AND THE MERGER

15

Section 2.01.    The Offer

15

Section 2.02.    Company Actions

18

Section 2.03.    The Closing

19

Section 2.04.    The Merger

19

Section 2.05.    Conversion of Shares

20

Section 2.06.    Surrender and Payment

20

Section 2.07.    Dissenting Shares

22

Section 2.08.    Treatment of Equity Awards

22

Section 2.09.    Adjustments

24

Section 2.10.    Withholding Rights

25

Section 2.11.    No Liability

25

Section 2.12.    Lost Certificates

25

 

 

ARTICLE 3    THE SURVIVING CORPORATION

25

Section 3.01.    Certificate of Incorporation

25

Section 3.02.    Bylaws

26

Section 3.03.    Directors and Officers

26

 

 

ARTICLE 4    REPRESENTATIONS AND WARRANTIES OF THE COMPANY

26

Section 4.01.    Corporate Existence and Power

26

Section 4.02.    Organizational Documents

26

Section 4.03.    Corporate Authorization

26

Section 4.04.    Governmental Authorization

27

Section 4.05.    Non-contravention

27

Section 4.06.    Capitalization

28

Section 4.07.    Subsidiaries

30

Section 4.08.    SEC Filings and the Sarbanes-Oxley Act

31

Section 4.09.    Financial Statements; Internal Controls

32

Section 4.10.    Disclosure Documents

33

Section 4.11.    Absence of Certain Changes

34

Section 4.12.    No Undisclosed Liabilities

34

Section 4.13.    Litigation

34

Section 4.14.    Compliance with Applicable Law; Permits

34

Section 4.15.    Material Contracts

35

Section 4.16.    Taxes

37

Section 4.17.    Employee Benefits Plans

39

 

 

 

 

 


TABLE OF CONTENTS

(cont’d)

 

 

 

Section 4.18.    Labor and Employment Matters

41

Section 4.19.    Insurance Policies

42

Section 4.20.    Environmental Matters

42

Section 4.21.    Intellectual Property and Privacy

43

Section 4.22.    Real Property

46

Section 4.23.    Anticorruption Matters; Sanctions

47

Section 4.24.    Government Contracts

47

Section 4.25.    Brokers’ Fees

49

Section 4.26.    Opinion of Financial Advisor

49

Section 4.27.    Vote Required

49

Section 4.28.    Takeover Laws

50

Section 4.29.    No Other Representations or Warranties

50

 

 

ARTICLE 5    REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

50

Section 5.01.    Corporate Existence and Power

50

Section 5.02.    Authorization; Enforceability

50

Section 5.03.    Governmental Authorization

51

Section 5.04.    Non-contravention

51

Section 5.05.    Ownership and Operation of Merger Sub

51

Section 5.06.    No Vote of Parent Stockholders; Required Approval

52

Section 5.07.    Disclosure Documents

52

Section 5.08.    Litigation

52

Section 5.09.    Section 203 of DGCL; Ownership

52

Section 5.10.    Available Funds; Solvency

53

Section 5.11.    Brokers’ Fees

53

Section 5.12.    No Other Representations or Warranties

53

 

 

ARTICLE 6    COVENANTS

54

Section 6.01.    Conduct of the Company

54

Section 6.02.    Unsolicited Proposals

58

Section 6.03.    Approval of Merger

62

Section 6.04.    Access to Information; Confidentiality

62

Section 6.05.    Notice of Certain Events

63

Section 6.06.    Employee Benefit Plan Matters

63

Section 6.07.    Termination of 401(k) Plan

65

Section 6.08.    State Takeover Laws

65

Section 6.09.    Obligations of Parent

66

Section 6.10.    Director and Officer Liability

66

Section 6.11.    Efforts

67

Section 6.12.    Stockholder Litigation

70

Section 6.13.    Public Announcements

70

Section 6.14.    Section 16 Matters

70

 

 

ii

 

 


TABLE OF CONTENTS

(cont’d)

 

 

 

Section 6.15.    Rule 14d-10 Matters

71

Section 6.16.    Treatment of Company Notes

71

Section 6.17.    Stock Exchange De-listing

71

Section 6.18.    Treatment of Certain Company Indebtedness

71

 

 

ARTICLE 7    CONDITIONS TO THE MERGER

72

Section 7.01.    Conditions to the Obligations of Each Party

72

 

 

ARTICLE 8    TERMINATION

72

Section 8.01.    Termination

72

Section 8.02.    Effect of Termination

74

 

 

ARTICLE 9    MISCELLANEOUS

74

Section 9.01.    Notices

74

Section 9.02.    Survival of Representations, Warranties and Covenants

75

Section 9.03.    Amendments and Waivers

75

Section 9.04.    Fees; Expenses

76

Section 9.05.    Assignment; Benefit

77

Section 9.06.    Governing Law

78

Section 9.07.    Jurisdiction

78

Section 9.08.    Waiver of Jury Trial

78

Section 9.09.    Specific Performance; Remedies

78

Section 9.10.    Severability

79

Section 9.11.    Entire Agreement

79

Section 9.12.    Rules of Construction

79

Section 9.13.    Counterparts; Effectiveness

80

 

 

Exhibit A – Conditions to the Offer

Exhibit B – Form of Amended and Restated Certificate of Incorporation
of the Surviving Corporation

 

 

 

 

iii

 

 


 

 

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated August 8, 2016, is entered into among MONSTER WORLDWIDE, INC., a Delaware corporation (the “ Company ”), RANDSTAD NORTH AMERICA, INC., a Delaware corporation (“ Parent ”), and MERLIN GLOBAL ACQUISITION, INC., a Delaware corporation and a wholly-owned subsidiary of Parent (“ Merger Sub ”).

WHEREAS, the Boards of Directors of each of the Company, Parent and Merger Sub have approved the acquisition of the Company by Parent on the terms and conditions set forth in this Agreement;

WHEREAS, in furtherance of such acquisition, Parent has agreed to cause Merger Sub to commence a tender offer (as it may be amended from time to time as permitted under this Agreement, the “ Offer ”) to purchase any and all of the shares of common stock, par value $0.001 per share, of the Company (the “ Company Common Stock ”) issued and outstanding (each, a “ Share ”) at a price per Share of $3.40 (such amount, or any other amount per Share paid pursuant to the Offer in accordance with this Agreement, the “ Offer Price ”), net to the seller in cash, without interest, less any applicable Tax withholding, and on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, following consummation of the Offer, the parties intend that Merger Sub will be merged with and into the Company (the “ Merger ,” and together with the Offer, the “ Transactions ”), with the Company surviving the Merger as a wholly-owned Subsidiary of Parent in accordance with the Delaware General Corporation Law (the “ DGCL ”) and each Share that is not (a) tendered and accepted pursuant to the Offer, (b) a Dissenting Share or (c) cancelled pursuant to Section 2.05(b) , will thereupon be cancelled and converted into the right to receive cash in an amount equal to the Merger Consideration, on the terms and subject to the conditions set forth herein;

WHEREAS, Parent, Merger Sub and the Company acknowledge and agree that the Merger shall be governed by and effected pursuant to Section 251(h) of the DGCL and shall be consummated as soon as practicable following consummation of the Offer;

WHEREAS, the Company Board has (a) determined that this Agreement and the Transactions are advisable, fair to and in the best interests of the Company and the Company’s stockholders, (b) approved and declared advisable this Agreement and the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth herein, and (c) determined to recommend that the stockholders of the Company accept the Offer and tender their Shares to Merger Sub pursuant to the Offer;

WHEREAS, the Board of Directors of Merger Sub has approved and declared it advisable for Merger Sub to enter into this Agreement and consummate the Transactions on the terms and subject to the conditions set forth herein; and

WHEREAS, the Board of Directors of Parent has approved this Agreement and the Transactions on the terms and subject to the conditions set forth herein, and Parent, in its capacity

 

 


 

 

as the sole stockholder of Merger Sub, will adopt this Agreement immediately following execution of this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, the parties hereto agree as follows:

 

ARTICLE I

DEFINITIONS

Section 1.01. Definitions .

(a)    As used herein, the following terms have the following meanings:

Acceptable Confidentiality Agreement ” means a confidentiality agreement containing terms, in the aggregate, no less favorable to the Company than the terms set forth in the Confidentiality Agreement (it being understood that any such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with any Person or having the effect of prohibiting the Company from satisfying any of its obligations under this Agreement); provided , however , that such confidentiality agreement shall not be required to include standstill provisions that prohibit or restrict the making or amendment of any private or public Acquisition Proposal; provided , further , that in the event any such Acceptable Confidentiality Agreement shall have a standstill provision that is less favorable to the Company than the Confidentiality Agreement, then the standstill provisions of the Confidentiality Agreement shall be deemed automatically amended to reflect such terms.

Acquisition Proposal ” means any written offer or written proposal related to an Acquisition Transaction.

Acquisition Transaction ” means any transaction or series of related transactions with a Third Party relating to (i) the acquisition of 15% or more of the assets of, equity interests in or business (as determined by reference to either consolidated revenues or consolidated net income) of the Company and the Company Subsidiaries, taken as a whole, whether pursuant to a merger, reorganization, recapitalization, consolidation or other business combination, sale of shares of capital stock, sale of assets, tender offer, exchange offer or other similar transaction, license, lease, joint venture or otherwise, (ii) the issuance, sale or other disposition to such Third Party (or Affiliate thereof) of securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable or exercisable for, such securities) representing 15% or more of the combined voting power of the Shares, (iii) any tender offer or exchange offer that if consummated would result in such Third Party (or Affiliate thereof) beneficially owning 15% or more of the combined voting power of the Shares or (iv) any merger, reorganization, recapitalization, consolidation or other business combination or similar transaction involving the Company or any of the Company Subsidiaries in which such Third Party (or Affiliates or equityholders thereof) will own 15% or more of the combined voting power of the parent entity resulting from any such transaction.

Affiliate ” means, with respect to any Person, any other Person that directly or indirectly, including through one or more intermediaries, controls, is controlled by or is under common control with such Person. As used in this definition, the term “controls” (including the terms “controlled

 

2


 

 

by” and “under common control with”) means possession, directly or indirectly, including through one or more intermediaries, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.

Anticorruption Laws ” means the US Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 or any other anticorruption or anti-bribery Applicable Law applicable to the Company or any of the Company Subsidiaries.

Applicable Law ” means any international, national, federal, state or local law, constitution, treaty, convention, statute, ordinance, code, rule, ruling, regulation or common law or other legal requirement issued, enacted, adopted, promulgated or applied by any Governmental Authority, each as amended and now and hereafter in effect.

Audited Balance Sheet ” means the audited consolidated balance sheet of the Company as at December 31, 2015.

Audited Balance Sheet Date ” means the date of the Audited Balance Sheet.

Business Day ” means a day other than Saturday, Sunday or other day on which commercial banks in New York, New York or Amsterdam, The Netherlands are authorized or required by Applicable Law to close.

Closing Date ” means the date of the Closing.

Code ” means the Internal Revenue Code of 1986, as amended.

Company Board ” means the Board of Directors of the Company.

Company Equity Awards ” means the Company Restricted Stock Units, the Company Restricted Shares, the Company Post-March 1, 2016 Restricted Stock Units, the Company Post-March 1, 2016 Performance Shares, the Company Non-Employee Director Restricted Stock Units, the Company Senior Executive Stock Price Restricted Stock Units and the Company Stock Options.

Company IP Rights ” means all Intellectual Property owned by the Company and the Company Subsidiaries.

Company Material Adverse Effect ” means any circumstance, event, change, development, occurrence, state of facts, condition or effect (each, an “ Effect ”) that, individually or in combination with any other Effect, (i) has had, or would reasonably be expected to have a material adverse effect on the business, financial condition, assets or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided , however , that no Effect shall constitute or contribute to a Company Material Adverse Effect pursuant to this clause (i) to the extent that such Effect arises out of, or results directly or indirectly from, and none of the following will be taken into account in determining whether a Company Material Adverse Effect has occurred or is continuing pursuant to this clause (i): (A) general economic, business or regulatory conditions in the United States or elsewhere in the world; (B)  credit, debt, financial or capital markets, interest or exchange rates or

 

3


 

 

commodity prices, in each case, in the United States or elsewhere in the world; (C) conditions generally affecting the industry in which the Company and the Company Subsidiaries operate; (D) any military conflict, declared or undeclared war, armed hostilities, acts of foreign or domestic terrorism or civil disobedience; (E) any hurricane, flood, tornado, earthquake or other natural disaster or pandemic; (F) changes or proposed changes in any Applicable Law or GAAP after the date of this Agreement (or interpretation thereof); (G) any failure by the Company or any of the Company Subsidiaries to meet any internal or external projections, estimates, expectations, earnings predictions or forecasts for any period, or to meet its internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations for any period (but excluding, in each case, the underlying causes of such failure unless such underlying causes would otherwise be excepted from this definition); (H) changes in the trading volume or trading price of the Company Common Stock (but excluding, in each case, the underlying causes of such changes unless such underlying causes would otherwise be excepted from this definition); (I) the public announcement or pendency of this Agreement, the Offer or the anticipated consummation of the Offer or the Merger (including the identity of Parent as the acquirer of the Company), including the impact thereof on relationships, contractual or otherwise, with officers, employees, customers, suppliers, distributors, vendors, licensors, licensees, lenders or Governmental Authorities or Government Officials; (J) any action expressly required to be taken by the Company or any of the Company Subsidiaries pursuant to this Agreement; (K) any Stockholder Litigation; or (L) any action taken by Parent or its Affiliates (including any disclosure regarding its plans with respect to the conduct of the Company’s business following the Effective Time); provided , further , that any Effect referred to in clause (A), (B), (C), (D), (E) or (F) above may constitute, and be taken into account in determining the occurrence of, a Company Material Adverse Effect if and only to the extent that such change or event has a disproportionately adverse impact on the Company and the Company Subsidiaries, taken as a whole, as compared to the other companies that operate in the industry in which the Company and the Company Subsidiaries operate, or (ii) does or would reasonably be expected to prevent or delay beyond the End Date the Company from consummating the Transactions ( provided , that no Effect shall constitute or contribute to a Company Material Adverse Effect pursuant to this clause (ii) to the extent that such Effect arises out of, or results directly or indirectly from, seeking the Governmental Consents).

Company Non-Employee Director Restricted Stock Unit ” means a restricted stock unit with respect to shares of Company Common Stock granted pursuant to the Company Stock Plans to a non-employee director of the Company.

Company Post-March 1, 2016 Performance Share ” means each right to receive Shares granted pursuant to the Company Stock Plans after March 1, 2016 that vests based on the level of achievement of performance goals, other than a Company Post-March 1, 2016 Restricted Stock Unit.  

Company Post-March 1, 2016 Restricted Stock Unit ” means a restricted stock unit with respect to shares of Company Common Stock granted pursuant to the Company Stock Plans after March 1, 2016, whether or not subject to any performance based vesting or other performance conditions and whether settled in cash or Shares; provided that, Company Post-March 1, 2016 Restricted Stock Unit shall not include any Company Non-Employee Director Restricted Stock Unit.  

 

4


 

 

Company Restricted Share ” means a restricted share of Company Common Stock granted pursuant to the Company Stock Plans.  

Company Restricted Stock Unit ” means a restricted stock unit with respect to shares of Company Common Stock granted pursuant to the Company Stock Plans, whether or not subject to any performance-based vesting or other performance conditions and whether settled in cash or Shares; provided that, Company Restricted Stock Unit shall not include any Company Post- March 1, 2016 Restricted Stock Unit, any Company Post-March 1, 2016 Performance Share or any Company Senior Executive Stock Price Restricted Stock Unit.

Company Senior Executive Stock Price Restricted Stock Unit ” means a restricted stock unit with respect to shares of Company Common Stock granted pursuant to the Company Stock Plans on January 7, 2015 that vests based on the achievement of applicable stock price targets set forth in the applicable award agreement.

Company Software ” means Software the rights to which are included in Company IP Rights.

Company Stock Option ” means an option to acquire shares of Company Common Stock, whether or not subject to any performance-based vesting or other performance conditions, granted pursuant to the Company Stock Plans.  

Company Stock Plans ” means the Company’s Amended and Restated 2008 Equity Incentive Plan and 1999 Long Term Incentive Plan, as amended, and all related award agreements.

Company Subsidiary ” means each Subsidiary of the Company.

Company’s Knowledge ” means, as to a particular matter, the actual knowledge of any one or more of the individuals listed on Section 1.01(a)(I) of the Company Disclosure Schedules; provided , however , that solely for purposes of Section 4.18(e) , “Company’s Knowledge” shall mean the actual knowledge of any one or more of the individuals listed on Section 1.01(a)(II) of the Company Disclosure Schedules.

Confidentiality Agreement ” means the confidentiality agreement, dated as of June 20, 2016, between Ultimate Parent and the Company, as the same may be deemed to have been automatically amended from time to time pursuant to the terms of this Agreement.

consummate ” (and with its correlative meanings “ consummation ” and “ consummating ”), as such term is used with respect to the Offer, has the meaning ascribed to it in Section 251(h) of the DGCL.

Contract ” means any legally binding written or oral contract, agreement or other legally binding instrument, obligation, arrangement or understanding of any kind, including any legally binding note, bond, indenture, mortgage, guarantee, undertaking, commitment, promise, option, lease, sublease, license, sublicense, joint venture, warranty or sales or purchase order.

 

5


 

 

Copyrights ” has the meaning set forth in the definition of “Intellectual Property.”

Credit Agreement ” means the Third Amended and Restated Credit Agreement, dated as of October 31, 2014 (as amended, modified and supplemented from time to time), among the Company, certain of the Company Subsidiaries, Bank of America, N.A., as administrative agent, swing line lender and l/c issuer, and the other lenders party thereto.

Data Room ” means the electronic data site established for Project Merlin by Intralinks on behalf of the Company and to which Parent and its Representatives have been given access in connection with the Transactions.

DOJ ” means the Antitrust Division of the U.S. Department of Justice.

Effect ” has the meaning set forth in the definition of “Company Material Adverse Effect.”

Environmental Law ” means any Applicable Law relating to (i) pollution, (ii) the protection of the environment or natural resources or (iii) Releases of or exposure to Hazardous Substances.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate ” of any entity means any other entity that, together with such entity, would be treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA.

EU Merger Regulation ” means Council Regulation 139/2004 of the European Union.

Evercore ” means Evercore Group L.L.C.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder.

Foreign Benefit Plan ” means any plan, fund (including any superannuation fund) or other similar program established or maintained outside the United States by the Company or any Company Subsidiary primarily for the benefit of employees of the Company or any Company Subsidiary residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment and which plan is not subject to ERISA, other than any such plan, fund or program required by applicable law to be established, maintained or contributed to in any jurisdiction outside of the United States.

FTC ” means the U.S. Federal Trade Commission.

GAAP ” means United States generally accepted accounting principles.

 

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Governmental Authority ” means any U.S. or non-U.S. federal, state, provincial, local or other government, department, authority, court, tribunal, commission, regulatory body or self-regulatory organization (including any securities exchange) or any political or other subdivision, department, agency or branch of any of the foregoing, or any mediator, arbitrator or arbitration tribunal or body or other non-governmental authority with applicable jurisdiction.

Government Contract ” means any Contract between the Company or any Company Subsidiary and (i) any Governmental Authority, (ii) any prime contractor to any Governmental Authority or (iii) any subcontractor (of any tier) in connection with or with respect to any Contract between another Person and any Governmental Authority.

Government Contract Bid ” means any offer, proposal, bid or quote for goods or services by the Company or any Company Subsidiary that is outstanding as of the date of this Agreement that if awarded or accepted by a Governmental Authority would result in a Government Contract.

Government Official ” means any (i) employee or official of a (A) Governmental Authority, (B) instrumentality of a Governmental Authority, including any state-owned or controlled enterprise, or government agency or (C) public international organization, (e.g., The World Bank), (ii) political party or party official, (iii) candidate for political office or (iv) any Person working in an official capacity on behalf of any of the foregoing.

Hazardous Substance ” means any pollutant, contaminant, chemical, petroleum or any fraction thereof, asbestos or asbestos-containing material, polychlorinated biphenyls or industrial, solid, toxic, radioactive, infectious, disease-causing or hazardous substance, material, waste or agent, including all substances, materials, wastes or agents which are identified, regulated by, the subject of liability or requirements for investigation or remediation under, or otherwise subject to, any Environmental Law.

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

Indebtedness ” of any Person at any date means, without duplication, all obligations of such Person to pay principal, interest, penalties, fees, guarantees, reimbursements, damages, “make-whole” amounts, costs of unwinding and other liabilities with respect to (i) indebtedness for borrowed money, whether current or funded, fixed or contingent, secured or unsecured, (ii) indebtedness evidenced by bonds, debentures, notes, mortgages or similar instruments or debt securities, (iii) leases that are required to be capitalized in accordance with GAAP under which such Person is the lessee, (iv) obligations under interest rate, currency swap, hedging, cap, collar or futures Contracts or other derivative Contracts and (v) direct or indirect guarantees or other forms of credit support of obligations described in clauses (i) through (iv) above of any Person; provided , however , that, with respect to the Company, “Indebtedness” shall not be deemed to include any intercompany Indebtedness owing by the Company to any of its wholly-owned Subsidiaries, by a wholly-owned Subsidiary of the Company to the Company or by one wholly-owned Subsidiary of the Company to another wholly-owned Subsidiary of the Company.

Indenture ” means that certain Indenture, dated as of October 22, 2014, under which the Notes were issued, between the Company and Wilmington Trust, National Association, as trustee.

 

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Intellectual Property ” means all intellectual property rights in any jurisdiction, whether registered or unregistered, including: (i) patents and patent applications and any and all divisions, extensions, continuations, continuations-in-part, reexaminations, continuing patent applications, reissues, counterparts claiming priority therefrom, foreign equivalents and utility models (collectively, “ Patents ”), and inventions, whether or not patentable; (ii) trademarks, service marks and trade dress and any other indicators of product or service origin (collectively, “ Marks ”) and Internet domain names; (iii) copyrights and copyrightable works, including moral rights, all rights in compilations, databases, or other collections of information or data, and all rights in mask works (collectively, “ Copyrights ”); (iv) computer programs, whether embodied in software, firmware or otherwise, and all related specifications and documentation, including system documentation, user manuals, and training materials, all descriptions, flowcharts and other work product used to design, plan, organize, and develop any of the foregoing, and including any and all forms in which any of the foregoing is embodied (whether in source code, object code, executable code or human readable form) (collectively, “ Software ”); (v) trade secrets (as defined in the Uniform Trade Secrets Act and under corresponding state or foreign statutory or common Applicable Law) and confidential know-how and information (collectively, “ Trade Secrets ”); and (vi) any and all other intellectual or industrial property rights recognized by any Governmental Authority under the Applicable Laws of any country throughout the world, as well as, in (i) – (iv) above, any registrations of, applications for registration and renewals and extensions thereof with or by any Governmental Authority in any jurisdiction.

Intervening Event ” means any Effect occurring or arising after the date of this Agreement that (i) is material to the Company and the Company Subsidiaries, taken as a whole, (ii) was not known (or, if known, the consequences of which were not known) to the Company Board as of the date of this Agreement, (iii) becomes known to the Company Board prior to the consummation of the Offer and (iv) does not relate to or involve any Acquisition Proposal; provided that (i) any fluctuation in the market price or trading volume of the Shares shall, in any case not constitute an Intervening Event (it being understood that the Effects giving rise or contributing to such fluctuations that are not otherwise excluded from the definition of an “Intervening Event” may be taken into account) and (ii) in no event shall any Effect that has had or would reasonably be expected to have an adverse effect on the business or financial condition of Parent or any of its Affiliates constitute an Intervening Event (it being understood that the Effects giving rise or contributing to such adverse effect that are not otherwise excluded from the definition of an “Intervening Event” may be taken into account).

Intentional and Knowing Breach ” means a breach by a party hereto of the terms of this Agreement where both the action that constituted the breach was deliberate and not inadvertent and, at the time, the party or its Representatives taking or authorizing such action knew that such action would constitute, or would reasonably be expected to result in, a breach.

IRS ” means the Internal Revenue Service.

Key Suppliers ” means each third party provider or supplier of the Company or any Company Subsidiary listed on Section 1.01(b) of the Company Disclosure Schedules.

 

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Liabilities ” means any and all Indebtedness, liabilities, commitments or obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, liquidated or unliquidated, determined or determinable, on- or off-balance sheet, whether or not required to be recorded or reflected on a balance sheet under GAAP, and whether arising in the past, present or future, and including those arising under any Contract, Proceeding or Order.

Licensed Company IP Rights ” means all Intellectual Property that is licensed to the Company or any of the Company Subsidiaries from Third Parties.

Lien ” means, with respect to any property or asset, any charge, claim, adverse interest, community property interest, pledge, hypothecation, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, deed of trust, encumbrance, easement, encroachment, lease, sublease license, right of way, right of first refusal or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership, or any interest or restriction similar in substance to any of the foregoing.

Made Available ” means that such information, document or material was (i) publicly available on the SEC EDGAR database, (ii) made available for review by Parent’s Representatives in the Data Room or (iii) otherwise provided by or on behalf of the Company to Parent’s Representatives, in the case of each of clauses (i), (ii) and (iii), as of 4:00 p.m. (New York City time) on the date of this Agreement.

Material Government Contract ” means any Government Contract that (i) has or would reasonably be expected to result in payments owed to the Company and the Company Subsidiaries of not less than $1,000,000 with respect to the calendar year ending December 31, 2016, (ii) requires or would reasonably be expected to require the Company or a Company Subsidiary to obtain any security clearance other than Public Trust Positions, or (iii) is or would reasonably be expected to be subject to NISPOM.

Material Government Contract Bid ” means any Government Contract Bid would result in a Material Government Contract.

Marks ” has the meaning set forth in the definition of “Intellectual Property.”

Notes ” means the Company’s 3.50% convertible senior notes due 2019 issued pursuant to the Indenture.

NYSE ” means The New York Stock Exchange.

Open Source Software ” means any Software that is licensed, distributed or conveyed as “open source software,” “free software,” “copyleft” or under a similar licensing or distribution model, or under a contract that requires as a condition of its use, modification or distribution that it, or other Software into which such Software is incorporated, integrated or with which such Software is combined or distributed or that is derived from or linked to such Software, be disclosed or distributed in source code form, delivered at no charge or be licensed, distributed or conveyed under some or all of the terms as such contract (including Software licensed under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, Microsoft Shared Source License, Common Public License, Netscape Public License,

 

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Sun Community Source License (SCSL), Sun Industry Standards License (SISL), Apache License and any license listed at www.opensource.org).

Order ” means, with respect to any Person, any order, injunction, judgment, decision, determination, award, writ, ruling, stipulation, assessment or decree or other similar requirement of, or entered, enacted, adopted, promulgated or applied by, with or under the supervision of, a Governmental Authority or arbitrator.

Organizational Documents ” means, with respect to any Person that is not a natural person, the articles of incorporation, certificate of incorporation, charter, bylaws, articles of formation, certificate of formation, operating agreement, partnership agreement, certificate of limited partnership and all other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of such Person, including any amendments thereto or restatements thereof.

Parent Material Adverse Effect ” means any Effect that, individually or in combination with any other Effect, does or would reasonably be expected to prevent or delay beyond the End Date Merger Sub or Parent from consummating the Transactions ( provided , that no Effect shall constitute or contribute to a Parent Material Adverse Effect to the extent that such Effect arises out of, or results directly or indirectly from, seeking the Governmental Consents).

Patents ” has the meaning set forth in the definition of “Intellectual Property.”

Permits ” means all permits, licenses, consents, franchises, approvals, privileges, immunities, authorizations, exemptions, registrations, certificates, variances and similar rights obtained from a Governmental Authority.

Permitted Liens ” means (i) Liens for Taxes or governmental assessments, charges or claims of payment not yet due and delinquent, and the amount or validity of which are being contested in good faith or for which adequate accruals or reserves have been established in the most recent balance sheet included in the Company SEC Documents as of the date of this Agreement, (ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business which are being contested in good faith or for which adequate accruals or reserves have been established in the most recent balance sheet included in the Company SEC Documents as of the date of this Agreement, (iii) zoning, entitlements, building codes or other land use or environmental regulations, ordinances or legal requirements imposed by any Governmental Authority that are not materially violated by any current use, occupancy or activity conducted by the Company or any of the Company Subsidiaries, (iv) title exceptions disclosed by any title insurance commitment or title insurance policy for any real property owned or leased by the Company and the Company Subsidiaries issued by a title company and Made Available to Parent, (v) statutory Liens in favor of lessors arising in connection with any property leased to the Company and the Company Subsidiaries, (vi) any defects, irregularities or imperfections of title, encroachments, easements, servitudes, permits, rights of way, flowage rights, restrictions, leases, licenses, covenants, sidetrack agreements and oil, gas, mineral and any mining reservations, rights, licenses and leases, which, in each case, has not had and would not reasonably be expected to have, individually or in the aggregate, a material impact on the operation of the business or the Company and the Company Subsidiaries, taken as a whole, (vii) Liens that are disclosed on the Audited

 

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Balance Sheet or notes thereto (or securing liabilities reflected on such Audited Balance Sheet), (viii) any Liens issued in connection with the obligations under the Credit Agreement, (ix) any non-exclusive licenses to Intellectual Property granted by the Company or any Company Subsidiary (expressly or implicitly) in connection with the sale, lease or transfer of products or services to customers in the ordinary course of business and that are limited to the respective customer’s use or receipt of Company and Company Subsidiary products or services, or (x) Liens that, individually or in the aggregate, do not detract in any material respect from the value of any of the property, rights, or assets of the business of the Company or any of the Company Subsidiaries or interfere in any material respect with the use thereof as currently used by the Company or the Company Subsidiaries.

Person ” means any individual, general or limited partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated organization, joint venture, firm, association or other entity or organization (whether or not a legal entity), including any Governmental Authority (or any department, agency or political subdivision thereof).

Personal Information ” means any information that, alone or in combination with other information, identifies or allows the identification of, or contact with, any individual, including an individual’s name, address, telephone number, e-mail address, date of birth, photograph, social security number or tax identification number, credit card number, bank information, or biometric identifiers.

PPACA ” means the Patient Protection and Affordable Care Act.

Privacy and Security Laws ” means Applicable Laws regarding collecting, accessing, using, disclosing, electronically transmitting, securing, sharing, transferring and storing Personal Information and Protected Health Information, including federal, state, or foreign Applicable Laws regarding (i) data privacy, data collection, data protection and information security, (ii) data breach notification (as applicable) or (iii) trespass, computer crime and other Applicable Laws governing unauthorized access to or use of electronic data.

Proceeding ” means any suit (whether civil, criminal, administrative or judicial), action, litigation, arbitration, mediation, proceeding (including any civil, criminal, administrative or appellate proceeding), hearing, audit, investigation, criminal prosecution or SEC “Wells” process, in each case commenced, brought, conducted or heard by or before any court or other Governmental Authority or any mediator, arbitrator or arbitration panel.

Protected Health Information ” means individually identifiable health information transmitted or maintained by a covered entity or its business associates in any form or medium as defined at 45 C.F.R. § 160.103.

Release ” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata).

Representatives ” means, with respect to any Person, the directors, officers, employees,

 

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financial advisors, attorneys, accountants, consultants, agents and other authorized representatives and advisors of such Person.

Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002.

SEC ” means the U.S. Securities and Exchange Commission.

Securities Act ” means the Securities Act of 1933, as amended, and the rules promulgated thereunder.

Software ” has the meaning set forth in the definition of “Intellectual Property.”

Stockholder Litigation ” means any claim or Proceeding (including any class action or derivative litigation) relating directly or indirectly to the Agreement, the Merger, the Offer or the other Transactions.

Subsidiary ” means, with respect to any Person, any other Person with respect to which such first Person (alone or in combination with any of such first Person’s other Subsidiaries) owns (i) capital stock or other equity interests having the ordinary voting power to elect a majority of the board of directors or other governing body of such Person or (ii) if no such governing body exists, a majority of the outstanding voting securities of such Person.

Superior Proposal ” means an Acquisition Proposal ( provided , that for this purpose the reference to “15%” in the definition of Acquisition Transaction shall be deemed to be a reference to “75%”) made by a Third Party and that the Company Board determines in good faith, after consultation with the Company’s financial advisor and outside legal counsel, and considering such factors as the Company Board considers in good faith to be appropriate in the exercise of its fiduciary duties (including the conditionality and the timing and likelihood of consummation of such proposal), is (i) reasonably capable of being consummated in accordance with its terms, and (ii) on terms that are more favorable to the stockholders of the Company than the Transactions (including after giving effect to the Proposed Changed Terms, if such are proposed by Parent in accordance with Section 6.02(e)(ii) ) from a financial point of view.

Tax ” means any federal, state, local or foreign tax, impost, levy, duty or fee (including any net income, gross receipts, capital, sales, use, ad valorem, deed recordation, abandoned/unclaimed property, escheat, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, Medicare, unemployment, excise, severance, stamp, occupation, net worth, real or personal property and estimated tax, customs duty, or other tax), together with any interest, penalty or addition to tax imposed by any Taxing Authority responsible for the imposition of any such tax with respect thereto.

Taxing Authority ” means, with respect to any Tax, any Governmental Authority that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such Governmental Authority.  

Tax Return ” means any return, report, information return, election, claim for refund, estimated tax filing or declaration or similar filing (including any attached schedules, supplements and additional or supporting material) filed or required to be filed with respect to Taxes, including

 

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any amendments thereof.

Third Party ” means any Person or “group” (as defined under Section 13(d) of the Exchange Act) of Persons, other than Parent, Merger Sub, the Company or any of their respective Affiliates or Representatives (in their capacity as representatives of Parent, Merger Sub or the Company).

Trade Secrets ” has the meaning set forth in the definition of “Intellectual Property.”

Transaction Expenses ” means the legal, accounting, consulting, investment banking and financial advisory fees and expenses incurred (including any such fees or expenses triggered by consummation of the Transactions (i.e., payment of a success fee)) or paid prior to or as of the Effective Time by the Company to the Persons listed on Section 1.01(c) of the Company Disclosure Schedules, in each case, in connection with this Agreement and the Transactions.

Treasury Regulations ” means the regulations promulgated under the Code by the United States Department of Treasury.

Ultimate Parent ” means Randstad Holding nv.

(b)    Each of the following terms is defined in the Section set forth opposite such term:

Term

Section

 

 

Agreement

Preamble

Alternative Acquisition Agreement

6.02(c)

Board Recommendation

4.03(b)

Capitalization Date

4.06(a)

Certificate of Merger

2.04(a)

Certificates

2.06(a)

Change in Recommendation

6.02(c)

Closing

2.03

Company

Preamble

Company Class B Common Stock

4.06(a)

Company Common Stock

Recitals

Company Cumulative Preferred Stock

4.06(a)

Company Disclosure Schedules

Article 4

Company Employee Plan

4.17(a)

Company Employees

4.17(a)

Company Permits

4.14(b)

Company Preferred Stock

4.06(a)

Company-Related Parties

9.04(g)

Company SEC Documents

4.08(a)

Company Securities

4.06(c)

Company Stock Plans

4.06(b)

Company Subsidiary Securities

4.07(c)

 

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Term

Section

Continuing Employees

6.06(a)

Contributor

4.21(b)

Current Premium

6.10(a)

D&O Indemnification Agreement

6.10(b)

Deferred Payments

2.08(g)

DGCL

Recitals

Disaster Recovery Plans

4.21(k)

Dissenting Shares

2.07

Effective Time

2.04(b)

End Date

8.01(b)(i)

FAR

4.24(a)

Fees

9.04(f)

Governmental Consents

6.11(a)

Indemnified Party

6.10(b)

Lease Agreement

4.22(b)

Material Contracts

4.15(a)

Material Lease Agreement

4.22(b)

Merger

Recitals

Merger Agreement

Exhibit A

Merger Consideration

2.05(a)

Merger Sub

Preamble

Minimum Tender Condition

Exhibit A

NISPOM

4.24(c)

OFAC

4.23(c)

OCI

4.24(b)

Offer

Recitals

Offer Conditions

2.01(b)

Offer Documents

2.01(f)

Offer Expiration Time

2.01(c)

Offer Price

Recitals

Parent

Preamble

Parent Benefit Plans

6.06(a)

Paying Agent

2.06(a)

Payment Fund

2.06(a)

Pre-Closing Period

6.01(a)

Proposed Changed Terms

6.02(e)(ii)

Regulatory Law

6.11(f)

Review Period

6.02(e)

Schedule 14D-9

2.02(b)

Schedule TO

2.01(f)

Share

Recitals

Stockholder List Date

2.02(c)

Superior Proposal Notice

6.02(e)

 

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Term

Section

Surviving Corporation

2.04(c)

Transactions

Recitals

Termination Fee

9.04(b)

Uncertificated Shares

2.06(a)

 

 

Section 1.02. Other Definitional and Interpretative Provisions . The words “hereof,” “herein,” “hereto” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified, and references to clauses without a cross-reference to a Section or subsection are references to clauses within the same Section or, if more specific, subsection. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. The term “or” is not exclusive. References (a) to “$” and “dollars” are to the currency of the United States, (b) from or through any date shall mean, unless otherwise specified, from and including or through and including, respectively, (c) to “days” shall be calendar days unless otherwise indicated and (d) to any Contract, Applicable Law or Permit is a reference to it as amended, modified and supplemented as of the applicable time that such Contract, Applicable Law or Permit is referenced in this Agreement (and, in the case of a Applicable Law, to (i) any successor provision and (ii) the rules and regulations promulgated thereunder, in each case as of the time that such Applicable Law is referenced in this Agreement).

ARTICLE 2
THE OFFER AND THE MERGER

Section 2.01. The Offer .

(a)     Commencement of the Offer . Provided that this Agreement shall not have been terminated in accordance with Section 8.01 , as promptly as practicable but in no event later than 20 Business Days after the date of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated by the SEC under the Exchange Act) the Offer.

(b)     Terms and Conditions of the Offer . The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any Shares validly tendered and not validly withdrawn pursuant to the Offer are subject to the conditions set forth in Exhibit A (the “ Offer Conditions ”). Except for the Offer Conditions set forth in paragraphs (i) and (iv) of Exhibit A , the

 

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Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances (including any action or inaction by Parent or Merger Sub). Merger Sub expressly reserves the right (but is not obligated to) at any time and from time to time in its sole discretion to waive any Offer Condition or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) modify or waive the Minimum Tender Condition or the Offer Condition set forth in clause (iv) of Exhibit A , (iv) add to the Offer Conditions or otherwise modify or waive any terms of the Offer in a manner adverse to the holders of Shares, (v) extend the Offer (except as required or permitted by the other provisions of this Section 2.01 ), (vi) change the form of consideration payable in the Offer or (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the 1934 Act.

(c)     Expiration and Extension of the Offer . The expiration date and time for the Offer, as the same may be extended from time to time in accordance with this Agreement, is referred to as the “ Offer Expiration Time .” The initial Offer Expiration Time shall be midnight (New York City time) on the 20th Business Day following (and including the day of) commencement of the Offer (determined pursuant to Exchange Act Rule 14d-1(g)(3)). Merger Sub may extend the Offer Expiration Time at any time with the Company’s written consent. Merger Sub may, without the Company’s consent, (i) extend the Offer for any period required by any Applicable Law or interpretation or position of the SEC or the staff thereof or NYSE applicable to the Offer (including in order to comply with Exchange Act Rule 14e-1(b) in respect of any change in the Offer Price) or (ii) if, as of any Offer Expiration Time, any Offer Condition is not satisfied and has not been waived, extend the Offer on one or more occasions in consecutive increments of up to 10 Business Days each (or such longer period as the parties hereto may mutually agree), until such time as all Offer Conditions are satisfied or waived; provided , however , that, without the Company’s written consent, Merger Sub shall not extend the Offer beyond the earlier of the End Date and the termination of this Agreement. Without limiting the rights of the parties to terminate this Agreement pursuant to and in accordance with Article 8 , if, as of any Offer Expiration Time, any Offer Condition is not satisfied and has not been waived by Merger Sub in accordance with this Agreement, Merger Sub shall extend the Offer Expiration Time on one or more occasions in consecutive increments of 10 Business Days each (or such longer period as the parties hereto may mutually agree), until such time as all Offer Conditions are satisfied or waived; provided , however , that Merger Sub shall not be required to extend the Offer beyond the End Date.

(d)     Consummation of the Offer; Payment . On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly (within the meaning of Section 14e-1(c) promulgated under the Exchange Act) after the Offer Expiration Time and, in any event, no more than two Business Days after the consummation of the Offer. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash without interest, upon the terms and subject to the conditions of the Offer.

 

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(e)     Termination of the Offer . Other than in connection with a valid termination of this Agreement pursuant to Article 8 , Merger Sub shall not terminate or withdraw the Offer without the prior written consent of the Company. In the event that this Agreement is terminated pursuant to Article 8 , prior to any scheduled expiration thereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within two Business Days of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof in accordance with the terms of the Offer and Applicable Law.

(f)     Offer Documents . On the date of commencement of the Offer (determined pursuant to Exchange Act Rule 14d-2), Parent and Merger Sub shall file with the SEC, in accordance with Exchange Act Rule 14d-3, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “ Schedule TO ”). The Schedule TO shall contain as an exhibit an offer to purchase and a related letter of transmittal, summary advertisement, notice of guaranteed delivery and other ancillary offer documents pursuant to which the Offer will be made (such Schedule TO and documents, together with any supplements or amendments thereto, the “ Offer Documents ”). The Company shall promptly furnish in writing to Parent and Merger Sub all information concerning the Company and the Company Subsidiaries that may be required by Applicable Laws or that is reasonably requested by Parent and Merger Sub for inclusion in the Offer Documents and, unless previously withdrawn or modified in accordance with Section 6.02 , Parent and Merger Sub shall be entitled to include a description of the Board Recommendation in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub shall take all steps reasonably necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by the Exchange Act. Parent shall (i) give the Company reasonable opportunity to review and comment upon the Offer Documents and any amendments and supplements thereto prior to filing such documents with the SEC or dissemination of such documents to the stockholders of the Company, (ii) give reasonable and good faith consideration to any comments made by the Company, (iii) provide the Company in writing any comments Parent or Merger Sub or their respective Representatives may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments (and shall give the Company prompt telephonic notice of any material discussions with the SEC staff), (iv) provide the Company a reasonable opportunity to review and comment upon the responses to any such comments and a copy of any proposed written responses thereto prior to the filing thereof and (v) give reasonable and good faith consideration to any comments made by the Company on any such responses.

(g)     Guaranteed Delivery . For purposes of this Agreement and the Offer, unless mutually agreed by Parent and the Company, any Shares subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer (including for purposes of determining whether the Minimum Tender Condition has been satisfied) unless and until the Shares underlying such notices of guaranteed delivery are received, as defined by Section 251(h)(6) of the DGCL.

 

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Section 2.02. Company Actions .

(a)     Approval . The Company hereby approves of and consents to the Transactions.

(b)     Schedule 14D-9 . On the date the Schedule TO is filed with the SEC (which shall in no event be prior to 20 Business Days after the date of the Agreement without the consent of the Company), the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the “ Schedule 14D-9 ”), which Schedule 14D-9 shall include the Board Recommendation (subject to the Board Recommendation not having been withdrawn or modified in accordance with Section 6.02 ) and a copy of the fairness opinion described in Section 4.26 , and a notice of appraisal rights in accordance with Section 262 of the DGCL. The Company shall (i) disseminate the Schedule 14D-9 to holders of Shares and (ii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL. Parent and Merger Sub shall promptly furnish in writing to the Company all information concerning Parent and Merger Sub that may be required by Applicable Law or that is reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps reasonably necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by the Exchange Act. Prior to a Change in Recommendation, the Company shall (i) give Parent and Merger Sub reasonable opportunity to review and comment upon the Schedule 14D-9 and any amendments and supplements thereto prior to filing such documents with the SEC or dissemination of such documents to the stockholders of the Company, (ii) give reasonable and good faith consideration to any comments made by Parent or Merger Sub, (iii) provide Parent or Merger Sub in writing any comments the Company or its Representatives may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments (and shall give Parent and Merger Sub prompt telephonic notice of any material discussions with the SEC staff), (iv) provide Parent and Merger Sub a reasonable opportunity to review and comment upon the responses to any such comments and a copy of any proposed written responses thereto prior to the filing thereof and (v) give reasonable and good faith consideration to any comments made by Parent or Merger Sub on any such responses.

(c)     Stockholder Lists . In connection with the Offer, the Company shall cause its transfer agent to furnish Merger Sub promptly with mailing labels containing the names and addresses of the record holders of Shares as of the most recent practicable date and of those persons becoming record holders subsequent to such date, together with copies of all lists of and computer or other electronic files containing stockholders’ names and addresses, security position listings and all other information in the Company’s possession containing information about the beneficial owners of the Shares as may be reasonably requested by Merger Sub for the purpose of communicating the Offer to such beneficial owners in accordance with Applicable Law, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Parent may reasonably request for the purpose of communicating the Offer to the holders of Shares in accordance with Applicable Law (the date of the list used to determine the Persons to whom the Offer Documents and the Schedule 14D-9 are first disseminated, the “ Stockholder List Date ”). Subject to Applicable Law, and except for such steps as are necessary

 

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to communicate the Offer to the holders of Shares, Parent and Merger Sub and their Representatives (i) shall hold in confidence such lists, files and information and will use such information only in connection with the Offer and the Merger (all in accordance with the terms of the Confidentiality Agreement) and (ii) following the termination of this Agreement, shall promptly either deliver to the Company or destroy, and shall cause their Representatives to deliver to the Company or destroy, all copies and any extracts or summaries of such information then in their possession or control and notify the Company that all such material has been so returned or destroyed.

Section 2.03. The Closing . Upon the terms and subject to the conditions set forth herein, the closing of the Merger (the “ Closing ”) will take place at 9:00 a.m., Eastern time, as soon as practicable (and in any event within one Business Day) following the satisfaction or, to the extent permitted hereunder, waiver of all conditions set forth in Article 7 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder) of such conditions), unless this Agreement has been terminated pursuant to its terms or unless another time or date is agreed to in writing by the parties hereto. The Closing shall be held at the offices of Jones Day, 1420 Peachtree Street N.E., Atlanta, GA 30309, unless another place is agreed to in writing by the parties hereto.

Section 2.04. The Merger .

(a)     Effecting the Merger . Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, on the Closing Date, Parent and the Company shall cause a certificate of merger (the “ Certificate of Merger ”) to be executed, acknowledged and delivered to the Office of the Secretary of State of the State of Delaware for filing, all in accordance with the applicable provisions of the DGCL, and take all other necessary or appropriate actions to cause the Merger to be effected under Section 251(h) of the DGCL without the adoption of this Agreement by the stockholders of the Company. The Merger shall be effected under Section 251(h) of the DGCL.

(b)     Effective Time . The Merger shall become effective on such date and at such time as when the Certificate of Merger has been received for filing by the Secretary of State of the State of Delaware or at such later time and date as may be agreed by the parties hereto in writing and specified in the Certificate of Merger (the “ Effective Time ”).

(c)     Surviving Corporation . At the Effective Time, Merger Sub shall be merged with and into the Company in accordance with the DGCL, whereupon the separate existence of Merger Sub shall cease, and the Company shall be the surviving corporation in the Merger (the “ Surviving Corporation ”), and the separate corporate existence of the Company, with all its rights, privileges, immunities, powers and franchises, shall continue unaffected by the Merger.

(d)     Effects of the Merger . The Merger shall have the effects set forth in the applicable provisions of the DGCL, this Agreement and the Certificate of Merger.

 

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Section 2.05. Conversion of Shares . At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, the stockholders thereof or any other Person:

(a)    except as otherwise provided in Section 2.05(b) , Section 2.07 or Section 2.08 , each Share outstanding immediately prior to the Effective Time shall be cancelled and converted into the right to receive an amount in cash equal to the Offer Price without interest (the “ Merger Consideration ”);

(b)    each Share owned by Parent, Merger Sub or the Company (including Shares held by the Company as treasury stock) or held by any wholly-owned Subsidiary thereof immediately prior to the Effective Time shall be cancelled and cease to exist, and no payment shall be made with respect thereto, and each holder of a Certificate representing any such Shares shall cease to have any rights with respect thereto; and

(c)    each share of common stock of Merger Sub outstanding immediately prior to the Effective Time shall be converted into and become one fully paid, nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation, and such shares shall constitute the only outstanding shares of capital stock of the Surviving Corporation as of the Effective Time.

Section 2.06. Surrender and Payment .

(a)     Paying Agent and Payment Fund . Prior to the Effective Time, Parent shall appoint and enter into a customary exchange agreement with a paying agent reasonably acceptable to the Company (the “ Paying Agent ”) for the purpose of paying the Merger Consideration. At or prior to the Effective Time, Parent shall have deposited with the Paying Agent the aggregate Merger Consideration to be held in trust for the benefit of the holders of Shares at the Effective Time who are entitled to receive Merger Consideration (the “ Payment Fund ”). To the extent the amount of the Payment Fund is below the level required to make prompt payment of the aggregate Merger Consideration for any reason (including in the event any Dissenting Shares cease to be Dissenting Shares), Parent and the Surviving Corporation shall promptly replace or restore the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. Any investment of the Payment Fund shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $10 billion (based on the most recent financial statements of such bank that are then publicly available). No such investment or loss thereon shall affect the amounts payable to the former holder of Shares pursuant to this Article 2 . Promptly after the Effective Time and in any event no later than the third Business Day after the Effective Time, Parent shall send, or shall cause the Paying Agent to send, to each record holder of Shares at the Effective Time, in each case whose Shares were converted into the right to receive the Merger Consideration pursuant to Section 2.05(a) , a letter of transmittal and instructions (which shall specify that the delivery of any certificate or certificates (the “ Certificates ”) which immediately prior to the Effective Time represented outstanding Shares shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent and the Company agree prior to the

 

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consummation of the Offer) for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof) and non-certificated Shares represented by book-entry (“ Uncertificated Shares ”) in exchange for the Merger Consideration payable in respect thereof pursuant to the provisions of this Article 2 .

(b)     Surrender of Shares . Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of such Shares promptly upon (i) in the case of Shares represented by a Certificate, surrender to the Paying Agent of such Certificate (or affidavit of loss in lieu thereof), together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Paying Agent, or (ii) in the case of Uncertificated Shares, adherence to the procedures set forth in the letter of transmittal and receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request). Until so surrendered or transferred, each Certificate and Uncertificated Share shall represent from and after the Effective Time for all purposes only the right to receive the Merger Consideration payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of such Certificate or Uncertificated Share. The foregoing payments shall be made via check or wire transfer of immediately available funds, at each such holder’s election as specified in the applicable letter of transmittal.

(c)     Unregistered Transferees . If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the Paying Agent any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Paying Agent that such Tax has been paid or is not payable.

(d)     No Other Rights . All Merger Consideration paid upon the surrender of Certificates or Uncertificated Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificate and the Uncertificated Shares and, from and after the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of Shares on the stock transfer books of the Surviving Corporation. If, after the Effective Time, any Certificate is presented to the Surviving Corporation, Parent or the Paying Agent for transfer, the holder of such Certificate shall be given a copy of a letter of transmittal and instructed to comply with the instructions therein in order to receive the Merger Consideration to which such holder is entitled pursuant to the Merger.

(e)     Termination of the Payment Fund . Any portion of the Payment Fund that remains unclaimed by the holders of Shares 12 months after the Effective Time shall be delivered to the Surviving Corporation, upon demand, and any such holder who has not exchanged Shares for the Merger Consideration in accordance with this Section 2.06 prior to that time shall thereafter look only to the Surviving Corporation as a general creditor thereof for payment of the Merger Consideration.

 

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Section 2.07. Dissenting Shares . Notwithstanding Section 2.05 or any other provision of this Agreement to the contrary, Shares issued and outstanding immediately prior to the Effective Time and held by a holder who is entitled to appraisal and who has properly exercised appraisal rights for such shares in accordance with Section 262 of the DGCL (“ Dissenting Shares ”) shall not be converted into a right to receive the Merger Consideration but instead shall be entitled only to such rights as are granted by the DGCL to a holder of Dissenting Shares; provided , however , that if, after the Effective Time, such holder fails to perfect, withdraws or loses such holder’s right to appraisal, pursuant to Section 262 of the DGCL, or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, such Shares shall immediately cease to be Dissenting Shares and shall be treated as if they had been Shares converted as of the Effective Time into the right to receive the Merger Consideration in accordance with Section 2.05(a) , without interest thereon, upon surrender of such Certificate formerly representing such Shares. The Company shall provide Parent prompt written notice of any demands received by the Company for appraisal of Shares, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to Section 262 of the DGCL that relates to such demand, and Parent shall have the opportunity and right to participate in all negotiations and proceedings with respect to such demands. Except with the prior written consent of Parent, the Company shall not voluntarily make any payment with respect to, or offer to settle or settle, any such demands.

Section 2.08. Treatment of Equity Awards .

(a)     Treatment of Company Restricted Stock Units . At the Effective Time, each Company Restricted Stock Unit (including each Company Non-Employee Director Restricted Stock Unit) outstanding immediately prior to the Effective Time shall, whether vested or unvested, automatically and without any required action on the part of the holder thereof, be cancelled and shall only entitle the holder of each such Company Restricted Stock Unit to receive (without interest) an amount in cash equal to the Merger Consideration per each share of Company Common Stock underlying each such Company Restricted Stock Unit, less applicable Taxes required to be withheld with respect to such payment pursuant to Section 2.10 . The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay to the holders of Company Restricted Stock Units the cash payments described in this Section 2.08(a) as promptly as practicable (and in any event within three Business Days of the Effective Time).

(b)     Treatment of Company Restricted Shares . At the Effective Time, each Company Restricted Share outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, be cancelled and shall only entitle the holder of such Company Restricted Share to receive (without interest) an amount in cash equal to the Merger Consideration, less applicable Taxes required to be withheld with respect to such payment pursuant to Section 2.10 . The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay to the holders of Company Restricted Shares the cash payments described in this Section 2.08(b) as promptly as practicable (and in any event within three Business Days of the Effective Time).

 

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(c)     Treatment of Company Post-March 1, 2016 Restricted Stock Units . At the Effective Time, each Company Post-March 1, 2016 Restricted Stock Unit outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the right to receive from the Surviving Corporation an amount in cash (without interest) equal to the Merger Consideration per each share of Company Common Stock underlying each such Company Post-March 1, 2016 Restricted Stock Unit, less applicable Taxes required to be withheld with respect to such payment pursuant to Section 2.10 , which cash amount will vest and become payable by the Surviving Corporation subject to and in accordance with the vesting schedule applicable to such Company Post-March 1, 2016 Restricted Stock Unit as in effect immediately prior to the Effective Time, including the provisions providing for accelerated vesting upon certain terminations of employment.

(d)     Treatment of Company Post-March 1, 2016 Performance Shares . At the Effective Time, each Company Post-March 1, 2016 Performance Share outstanding immediately prior to the Effective Time shall automatically and without any required action on the part of the holder thereof, be cancelled and converted into the right to receive from the Surviving Corporation an amount in cash (without interest) equal to the Merger Consideration per each share of Company Common Stock underlying each such Company Post-March 1, 2016 Performance Share up to the number of shares of Company Common Stock underlying the Company Post-March 1, 2016 Performance Shares eligible to vest under the applicable award agreement assuming “target” performance for each applicable performance measure, less applicable Taxes required to be withheld with respect to such payment pursuant to Section 2.10 . Such cash amount will vest and become payable by the Surviving Corporation in equal installments on each of March 15, 2017, March 15, 2018 and March 15, 2019 pursuant to the time-based vesting schedule applicable to such Company Post-March 1, 2016 Restricted Stock Unit as in effect immediately prior to the Effective Time, including the provisions providing for accelerated vesting upon certain terminations of employment.

(e)     Treatment of Company Senior Executive Stock Price Restricted Stock Units . At the Effective Time, each unvested Company Senior Executive Stock Price Restricted Stock Unit shall automatically and without any required action on the part of the holder thereof, be cancelled for no consideration.

(f)     Treatment of Company Stock Options . At least ten Business Days prior to the Effective Time, the Company shall provide written notice to the holder of each then-outstanding Company Stock Option, whether vested or unvested, that such Company Stock Option will accelerate and become vested and exercisable in full as of immediately prior to the Effective Time, and such holder will have the right to exercise his or her Company Stock Option in whole or in part at any time prior to the Effective Time. The holder of each Company Stock Option that is exercised pursuant to this Section 2.08(f) shall be issued the number of Shares resulting from such exercise, and such stockholder will thereafter be entitled to receive the Merger Consideration in respect of such Shares as provided in Section 2.05 . Each Company Stock Option that is not exercised prior to the Effective Time shall automatically terminate at the Effective Time under the terms of the Company Stock Plans, in exchange for an amount equal to the excess of the Merger Consideration over the applicable exercise price for each Share subject to such Company Stock Option, provided that if the exercise price per-Share equals or exceeds the Merger Consideration, the amount payable for such Company Stock Option shall be $0.00.

 

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(g)     Payments . With respect to any Company Restricted Stock Unit, Company Non-Employee Director Restricted Stock Unit, Company Post-March 1, 2016 Restricted Stock Unit or Company Post-March 1, 2016 Performance Share and for which payment in respect thereof as described in this Section 2.08 would violate the permitted time for delivery or payment prescribed under Section 409A of the Code, such delivery or payment shall be made on the earliest practicable date that delivery or payment may be made without violating such applicable provisions of Section 409A of the Code with such payment to be held through such permissible payment date in a deferred compensation account for the benefit of the individual holder (any such payment, a “ Deferred Payment ”). Except in the case of any Deferred Payment, Parent shall provide to the Surviving Corporation all funds necessary to fulfill the obligations (i) under Section 2.08(a) , Section 2.08(b) and Section 2.08(e) no later than the Effective Time and (ii) under Section 2.08(c) and Section 2.08(d) on or as soon as reasonably practicable following the applicable vesting date.

(h)     Corporate Actions . Prior to consummation of the Offer, the Company shall take any actions which are necessary to approve and effectuate the provisions of Section 2.08(a) through Section 2.08(f) , including (i) making any determinations or adopting resolutions of the Company Board or the applicable committee thereof or any administrator of a Company Employee Plan as may be necessary, (ii) taking any actions necessary so that each Company Stock Option with an exercise price that exceeds the Merger Consideration is canceled for no additional consideration and (iii) satisfying any requirement to notify the holder of compensatory equity awards as may be required under the Company Employee Plans. In addition, Parent may request that the Company use commercially reasonable efforts to seek consents from certain holders of Company Post-March 1, 2016 Restricted Stock Units and Company Post-March 1, 2016 Performance Shares prior to the Effective Time with respect to the treatment of such holders’ Company Post-March 1, 2016 Restricted Stock Units and Company Post-March 1, 2016 Performance Shares pursuant this Section 2.08 . The Company shall ensure that from and after the Effective Time, no Company Equity Award holder shall have any right with respect to any Company Equity Award other than to receive the payment provided for in this Section 2.08 .

Section 2.09. Adjustments . If, during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of the Company shall occur, including by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend, all references herein to specified numbers of shares affected thereby, and any calculations that are based upon such numbers of shares affected thereby, including the Offer Price, the Merger Consideration and any other amounts payable pursuant to this Agreement, shall be appropriately adjusted.

Section 2.10. Withholding Rights . Each of Parent, Merger Sub, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement such amounts as it is required to deduct and withhold from such payment under any provision of any applicable Tax law. To the extent that amounts are so deducted and withheld by Parent, Merger Sub, the Surviving Corporation or the Paying Agent, as the case may be, and paid to the appropriate Taxing Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which Parent, Merger Sub, the Surviving Corporation or the Paying Agent, as the case may be, made such deduction and withholding.

 

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Section 2.11. No Liability . None of Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash from the Payment Fund delivered to a public official pursuant to and in accordance with any applicable abandoned property, escheat or similar Applicable Law. If any Shares shall not have been surrendered immediately prior to such date on which any amounts payable pursuant to this Article 2 would otherwise escheat to or become the property of any Governmental Authority, any such amounts shall, to the extent permitted by Applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

Section 2.12. Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if reasonably required by Parent, the posting by such Person of a bond, in such customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the Shares formerly represented by such Certificate, as contemplated under this Article 2 .

ARTICLE 3
THE SURVIVING CORPORATION

Section 3.01. Certificate of Incorporation . At the Effective Time and without any further action on the part of the Company and Merger Sub, the certificate of incorporation of Merger Sub shall be amended and restated in its entirety to read in the form attached hereto as Exhibit B until thereafter amended in accordance its terms and Applicable Law; provided that this Section 3.01 shall not limit the obligations set forth in Section 6.10 (Director and Officer Liability).

Section 3.02. Bylaws . At the Effective Time and without any further action on the part of the Company and Merger Sub, the bylaws of Merger Sub will be the bylaws of the Surviving Corporation until thereafter amended in accordance with its terms, the certificate of incorporation of the Surviving Corporation and Applicable Law, except that all references therein to Merger Sub shall automatically be amended and shall become references to the Surviving Corporation.

Section 3.03. Directors and Officers . From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with Applicable Law or until their earlier death, resignation or removal, (a) the directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation and (b) the officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Corporation.

 

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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (a) as disclosed in the Company SEC Documents filed with the SEC and publicly available on or after February 11, 2016 and prior to the date of this Agreement (other than any non-factual, predictive, cautionary or forward-looking disclosures contained in the “forward looking statements” or “risk factors” sections contained therein) or (b) as set forth in the Company Disclosure Schedules (each section of which qualifies the correspondingly numbered and lettered representation and warranty in this Article 4 to the extent specified therein and the representations and warranties in such other sections of this Agreement as to which the relevance of the disclosure is reasonably apparent on its face) delivered by the Company to Parent and Merger Sub prior to the execution of this Agreement (the “ Company Disclosure Schedules ”), the Company hereby represents and warrants to Parent and Merger Sub as follows:

Section 4.01. Corporate Existence and Power . The Company is a corporation duly incorporated, validly existing and in good standing under the Applicable Laws of the State of Delaware. The Company has full power and authority required to own its properties and carry on its business as now conducted in all material respects. The Company is duly qualified to do business as a foreign corporation and is in good standing (to the extent a concept of “good standing” is applicable) in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified has not had and would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect.

Section 4.02. Organizational Documents . The Company has Made Available true, correct and complete copies of the Organizational Documents of the Company as of the date of this Agreement and the Organizational Documents of the Company are in full force and effect. The Company is not in violation in any material respect of any such Organizational Documents.

Section 4.03. Corporate Authorization .

(a)     Authority and Enforceability . The Company has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Transactions. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions have been duly authorized by all necessary action on the part of the Company. The Company has duly executed and delivered this Agreement, and, assuming due authorization, execution and delivery by Parent and Merger Sub, this Agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity.

(b)     Company Board Approval and Board Recommendation . At a meeting duly called and held, prior to the execution of this Agreement, at which all directors of the Company were present and voting in favor, the Company Board duly adopted resolutions (which, as of the date of this Agreement, have not been rescinded, modified or withdrawn in any way) (i) approving and declaring that this Agreement, the Offer, the Merger and the other Transactions are advisable, fair

 

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to and in the best interests of the Company and the stockholders of the Company, (ii) approving this Agreement and the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth herein, (iii) resolving that the Company enter into this Agreement and consummate the Transactions on the terms and subject to the conditions set forth herein, (iv) determining to recommend that the stockholders of the Company accept the Offer and tender their Shares to Merger Sub pursuant to the Offer (such recommendation, the “ Board Recommendation ”), (v) taking all actions necessary so that the restrictions on business combinations and stockholder vote requirements contained in Section 203 of the DGCL and any other Applicable Law with respect to a “moratorium,” “control share acquisition,” “business combination,” “fair price” or other form of anti-takeover Applicable Laws that may purport to be applicable will not apply with respect to or as a result of this Agreement or the Transactions, and (vi) authorizing that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the consummation of the Offer.

Section 4.04. Governmental Authorization . The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions require no action by or in respect of, or filing with, any Governmental Authority, other than (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (b) compliance with any applicable requirements of the HSR Act and the EU Merger Regulation, (c) the filing with the SEC of (i) the Schedule 14D-9 and (ii) any other filings and reports that may be required in connection with this Agreement and the Transactions under the Exchange Act, (d) compliance with any applicable requirements of the Securities Act, the Exchange Act, any other applicable U.S. state or federal or foreign securities laws or NYSE rules and (e) any actions or filings the absence of which has not had and would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect.

Section 4.05. Non-contravention . The execution, delivery and performance by the Company of this Agreement and the consummation of the Offer, the Merger and the other Transactions do not and will not (with or without notice or lapse of time or both) (a) contravene, conflict with or result in any violation or breach of any provision of the Organizational Documents of the Company or any Company Subsidiary, (b) assuming compliance with the matters referred to in Section 4.04 , contravene, conflict with or result in a violation or breach of any provision of any Applicable Law or Order, (c) except as set forth in Section 4.05 of the Company Disclosure Schedules, require any consent or approval under, violate, conflict with, result in any breach of or any loss of any benefit under, or constitute a change of control or default under, or result in termination or cancellation or give to others any right of termination, vesting, amendment, acceleration or cancellation (in each case, with or without notice or lapse of time or both) of (i) any Material Contract or Material Lease Agreement to which the Company or any Company Subsidiary is a party, or by which they or any of their respective properties or assets may be bound or affected, (ii) any Company Permits or (iii) any staffing customer Contract (or series of related Contracts) that is reasonably expected to result in payments to the Company or any Company Subsidiary of $1,000,000 or more in the fiscal year ending December 31, 2016, or (d) result in the creation or imposition of any Lien on any rights, property or asset of the Company or any of the Company Subsidiaries, with such exceptions, in the case of each of clauses (b), (c)(i), (c)(ii) and (d), as has not had and would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect.

 

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Section 4.06. Capitalization .

(a)    The authorized capital stock of the Company consists of (i) 1,500,000,000 shares of Company Common Stock, (ii) 39,000,000 shares of Class B Common Stock, par value $0.001 per share (“ Company Class B Common Stock ”), (iii) 200,000 shares of 10.5% Cumulative Preferred Stock, par value $10.00 per share (the “ Company Cumulative Preferred Stock ”) and (iv) 800,000 shares of Preferred Stock, par value $0.001 per share (the “ Company Preferred Stock ”). The rights and privileges of the Company Common Stock, the Company Class B Common Stock, the Company Cumulative Preferred Stock and the Company Preferred Stock are as set forth in the Company’s Certificate of Incorporation. At the close of business on August 4, 2016 (the “ Capitalization Date ”), (A) 89,071,628 Shares, including 159,686 Company Restricted Shares, were outstanding, (B) Company Restricted Stock Units with respect to an aggregate of 3,243,352 Shares were outstanding, (C) Company Post-March 1, 2016 Restricted Stock Units with respect to an aggregate of 1,532,181 Shares were outstanding, (D) Company Post-March 1, 2016 Performance Shares with respect to an aggregate of 2,711,083 Shares were outstanding, (E) Company Senior Executive Stock Price Restricted Stock Units with respect to an aggregate of 262,500 Shares were outstanding, (F) Company Stock Options with respect to an aggregate of 60,816 Shares were outstanding, (G) no shares of Company Class B Common Stock were outstanding, (H) no shares of Company Cumulative Preferred Stock were outstanding, (I) no shares are Company Preferred Stock were outstanding and (J) the maximum number of Shares subject to issuance pursuant to outstanding Notes to the extent converted in accordance with their terms and giving effect to the Transactions is 25,110,292. All outstanding shares of capital stock of the Company have been, and all Shares that may be issued pursuant to any Company Stock Plan or the Notes will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid, nonassessable and free of preemptive rights. Since the Capitalization Date through the date of this Agreement, no Shares or other Company Securities were issued or reserved for issuance except for the issuance pursuant to any Company Equity Awards outstanding as of the Capitalization Date and as set forth in Section 4.06(a) of the Company Disclosure Schedules.

(b)     Section 4.06(b) of the Company Disclosure Schedules sets forth, as of the close of business on the Capitalization Date, a true, correct and complete list of (i) all outstanding Company Equity Awards (other than the Company Stock Options), including the name of the holder and the grant date and vesting schedule thereof (or an indication that such Company Equity Award is performance based), and (ii) all outstanding Company Stock Options, including the number of shares subject to such award, the name of the holder, the grant date, the vesting schedule and the expiration date thereof, and the exercise price per share. The Company stock plans set forth on Section 4.06(b) of the Company Disclosure Schedules (the “ Company Stock Plans ”) are the only plans or programs the Company or any of the Company Subsidiaries maintains under which stock options, restricted stock, restricted stock units, stock appreciation rights or other compensatory equity and equity-based awards are outstanding and no awards other than the Company Equity Awards were granted under the Company Stock Plans or otherwise. With respect to each grant of Company Equity Award, each such grant was made in accordance in all material respects with the terms of the applicable Company Stock Plan and Applicable Law (including NYSE rules). Each Company Stock Option (i) has an exercise price per Share equal to or greater than the fair market value of a Share on the date of such grant and (ii) has a grant date no later than the date on which

 

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the Company Board or compensation committee thereof took action to grant such Company Stock Option. The Company has Made Available to Parent each form of award agreement under the Company Stock Plans. All Company Equity Awards may, by their terms, be treated in accordance with Section 2.08 .

(c)    Except as set forth in Section 4.06(a) and except for the Notes, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or other ownership interests in the Company, (ii) securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of or other ownership interests in the Company, (iii) subscriptions, warrants, calls, options, convertible securities or other rights to acquire from the Company, or other obligation of the Company to issue, sell or deliver or cause to be issued sold or delivered, any shares of capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of or other ownership interests in the Company, or (iv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights issued or granted by the Company or any of the Company Subsidiaries that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock or other voting securities of or other ownership interests in the Company (the items in clauses (i) through (iv) being referred to collectively as the “ Company Securities ”).

(d)    There are no outstanding obligations of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities. Except for the Shares, the Company Equity Awards and the Notes, there are no outstanding bonds, debentures, notes or other indebtedness of the Company or Company Securities having the right to vote (whether on an as-converted basis or otherwise) or convertible into, or exchangeable for, securities having the right to vote on any matters on which stockholders of the Company may vote.

(e)    Neither the Company nor any of the Company Subsidiaries is a party to any voting trust, proxy, voting agreement or other similar agreement with respect to the voting of any Company Securities. Except as set forth in Section 4.06(a) , there are no contractual obligations or commitments of any character to which the Company or a Company Subsidiary is a party restricting the transfer of, or requiring the registration for sale of, any Company Securities or of any shares of capital stock of any of the Company Subsidiaries.

Section 4.07. Subsidiaries .

(a)     Section 4.07(a) of the Company Disclosure Schedules sets forth a correct and complete list of each Company Subsidiary and the percentage record equity ownership thereof held by the Company and each other Person, as applicable. All outstanding shares of capital stock or other voting securities of or other ownership interests in each Company Subsidiary are duly authorized and validly issued and are fully paid, to the extent applicable, nonassessable, and free of preemptive rights. Except as set forth in Section 4.07(a) of the Company Disclosure Schedules, neither the Company nor any of the Company Subsidiaries, directly or indirectly, owns any equity or similar interest in, nor any interest convertible into or exchangeable or exercisable for, any equity or similar interest in, any Person other than the Company Subsidiaries set forth on Section 4.07(a) of the Company Disclosure Schedules. For avoidance of doubt, no Company Subsidiary owns any equity or similar interest in the Company, or any interest convertible into, or exchangeable or

 

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exercisable for, any equity or similar interest in the Company.

(b)    Except as set forth in Section 4.07(b) of the Company Disclosure Schedules, each Company Subsidiary (i) is an entity duly incorporated or otherwise duly organized, validly existing and (where applicable or recognized) in good standing under the Applicable Laws of its jurisdiction of incorporation or organization, (ii) has all corporate, limited liability company or comparable powers required to carry on its business as now conducted, except for those powers the absence of which has not had, and would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect and (iii) is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified or in good standing has not had, and would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect.

(c)    Except as set forth in Section 4.07(a) of the Company Disclosure Schedules, all of the outstanding capital stock or other voting securities of or other ownership interests in each Company Subsidiary, are owned by the Company, directly or indirectly, free and clear of any Liens, other than Permitted Liens. Except as set forth in Section 4.07(a) of the Company Disclosure Schedules, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or other ownership interests in the Company Subsidiaries, (ii) Company Securities or securities of any of the Company Subsidiaries convertible into, or exchangeable or exercisable for, shares of capital stock or other voting securities of or other ownership interests in any Company Subsidiary, (iii) subscriptions, warrants, calls, options, convertible securities or other rights to acquire from the Company or any of the Company Subsidiaries, or other obligations of the Company or any of the Company Subsidiaries to issue, sell or deliver or cause to be issued sold or delivered, any shares of capital stock or other voting securities of or other ownership interests in or any securities convertible into, or exchangeable or exercisable for, any shares of capital stock or other voting securities of or other ownership interests in any Company Subsidiary or (iv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights issued or granted by the Company or any of the Company Subsidiaries that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or other voting securities of or other ownership interests in any Company Subsidiary (the items in clauses (i) through (iv) being referred to collectively as the “ Company Subsidiary Securities ”). There are no outstanding obligations of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Subsidiary Securities. Except as set forth in Section 4.07(c) of the Company Disclosure Schedules, neither the Company nor any of the Company Subsidiaries is a party to any voting trust, proxy, voting agreement or other similar agreement with respect to the voting of any Company Subsidiary Securities.

 

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(d)    Except as has not had and would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect, all the Organizational Documents of the Company Subsidiaries are in full force and effect and no Company Subsidiary is in violation of any of its Organizational Documents.

Section 4.08. SEC Filings and the Sarbanes-Oxley Act .

(a)    The Company has filed with or furnished to the SEC each report, statement, schedule, form or other document or filing required by the Exchange Act to be filed or furnished by the Company on or after January 1, 2015 (together with all exhibits thereto and information incorporated by reference therein (including financial statements or schedules), the “ Company SEC Documents ”). No Company Subsidiary is required by the Exchange Act to file or furnish any report, statement, schedule, form or other document with, or make any other filing with, or furnish any other material to, the SEC.

(b)    As of its filing date (or, if amended, supplemented or superseded, as of the date of the most recent such filing prior to the date of this Agreement), each Company SEC Document complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act.

(c)    As of its filing date (or, if amended, supplemented or superseded, as of the date of the most recent such filing prior to the date of this Agreement), each Company SEC Document and each registration statement, as amended or supplemented, filed, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

(d)    The Company is not subject to any “Off-Balance Sheet Arrangement” (as defined in Item 303(a) of Regulation S-K under the Securities Act).

(e)    As of the date of this Agreement, to the Company’s Knowledge, none of the Company SEC Documents is subject to ongoing SEC review or outstanding SEC investigation. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to the Company SEC Documents. The Company is in compliance in all material respects with all current listing and corporate governance requirements of the NYSE.

Section 4.09. Financial Statements; Internal Controls .

(a)    The consolidated financial statements (including all related notes and schedules) of the Company included in the Company SEC Documents (i) complied as of their respective filing dates with the SEC, in all material respects with the applicable accounting requirements and the Applicable Laws of the SEC with respect thereto, (ii) were prepared in accordance with (A) the books and records of Company and its consolidated Company Subsidiaries and (B) GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited interim statements the omission of footnotes), and (iii) fairly presented in all material respects the consolidated financial position of the Company and its consolidated

 

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Company Subsidiaries at and as of the dates thereof and their consolidated results of operations and cash flows of the Company and its consolidated Company Subsidiaries for the periods presented therein, all in accordance with GAAP (subject, in the case of the unaudited financial statements, to normal year-end adjustments and the absence of notes).

(b)    The Company has established and maintains “disclosure controls and procedures” and “internal control over financial reporting” (as defined in paragraphs (e) and (f), respectively, of Rules 13a-15 and 15d-15 under the Exchange Act). The Company’s disclosure controls and procedures are reasonably designed to ensure that information required to be disclosed in the Company’s periodic reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the required time periods, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required to be made by the Company under applicable requirements of the Sarbanes-Oxley Act. The Company’s system of internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and to provide reasonable assurance (i) that transactions are recorded as necessary to permit the preparation of financial statements in accordance with GAAP, (ii) that receipts and expenditures are being made only in accordance with the authorization of management and the Company Board, and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the Company’s consolidated financial statements. Since January 1, 2015, no “significant deficiencies” or “material weaknesses” (as such terms are defined by the Public Company Accounting Oversight Board) has been identified by the Company in the design or operation of such internal controls that would reasonably be expected to be adverse in any material respect to the Company’s ability to record, process, summarize and report financial information and all fraud, whether or not material, that involves management or other employees who have a significant role in internal controls. With respect to each annual report on Form 10-K, each quarterly report on Form 10-Q and each amendment of any such report included in the Company SEC Documents filed since January 1, 2015, the principal executive officer and principal financial officer of the Company (or each former principal executive officer and each former principal financial officer of the Company) have made all certifications required by the Sarbanes-Oxley Act and any related rules and regulations promulgated by the SEC. The Company’s management has completed an assessment of the effectiveness of the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended December 31, 2015, and such assessment concluded that the Company’s internal control over financial reporting was effective as of such date.

(c)    Since January 1, 2015 and prior to the date of this Agreement, (i) neither the Company nor any of the Company Subsidiaries nor, to the Company’s Knowledge, any director, officer, auditor, accountant or any other Representative of the Company or any Company Subsidiary with responsibility for bookkeeping or accounting functions, has received any bona fide material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Subsidiary of the Company, including any material complaint, allegation, assertion or claim that the Company or any of the Company Subsidiaries has engaged in questionable accounting or

 

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auditing practices, and (ii) no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a material violation of any material Applicable Law or breach of fiduciary duty by the Company or any of its respective Representatives to the Company Board or any committee thereof, or to the General Counsel or Chief Executive Officer of the Company.

Section 4.10. Disclosure Documents . None of the information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the Offer Documents will, at the time such documents are filed with the SEC, at any time they are amended or supplemented, at the time they are published, sent or given to the holders of Shares, at the time of commencement of the Offer or at the time of the consummation of the Offer, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Schedule 14D-9, at the time such document is filed with the SEC, at any time it is amended or supplemented, at the time it is published, sent or given to the holders of Shares, at the time of commencement of or at the time of the consummation of the Offer, will comply as to form in all material respects with the applicable requirements of the Exchange Act and all other Applicable Laws. The Schedule 14D-9, at the time such document is filed with the SEC, at any time it is amended or supplemented, at the time it is published, sent or given to the holders of Shares, at the time of commencement of the Offer and at the time of the consummation of the Offer, shall not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that no representation or warranty is made by the Company with respect to information supplied in writing by or on behalf Parent or Merger Sub or any of their Representatives specifically for inclusion or incorporation by reference in the Schedule 14D-9.

Section 4.11. Absence of Certain Changes . Since the Audited Balance Sheet Date, and through the date of this Agreement, (a) the Company and the Company Subsidiaries have conducted their business in the ordinary course consistent with past practice in all material respects, (b) there has not been any Company Material Adverse Effect and (c) neither the Company nor any Company Subsidiary has taken any action that, if taken after the date of this Agreement, would require the prior written consent of Parent under clause (i) (with respect to clause A), (iv), (v), (viii), (xi), (xii), (xiii) or (xx) of Section 6.01(b) or, to the extent related to any such clause of Section 6.01(b) , Section 6.01(b) (xxiii).

Section 4.12. No Undisclosed Liabilities . There are no Liabilities or obligations of the Company or any of the Company Subsidiaries of the type required to be disclosed on the consolidated balance sheet of the Company or in the notes thereto in accordance with GAAP, other than Liabilities (a) disclosed, reflected or reserved against in the Audited Balance Sheet (including the notes thereto), (b) incurred under this Agreement or in connection with the Transactions, (c) incurred in the ordinary course of business since the Audited Balance Sheet Date or (d) Liabilities under executory Contracts to which the Company or any of the Company Subsidiaries are bound, other than as a result of a breach thereof. As of the date of this Agreement, based upon and subject to the assumptions set forth in Section 4.12 of the Company Disclosure Schedules, the Company’s good faith estimate of all Transaction Expenses that the Company and the Company Subsidiaries will pay or incur in connection with the Transactions does not exceed

 

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$7.5 million.

Section 4.13. Litigation . Except as set forth on Section 4.13 of the Company Disclosure Schedules, as of the date of this Agreement, there is no Proceeding pending against or, to the Company’s Knowledge, threatened against the Company, any of the Company Subsidiaries or any current or former director or officer of the Company or any Company Subsidiaries (in their respective capacities as such), other than any such Proceeding that (a) does not involve an amount in controversy in excess of $200,000 and (b) does not seek injunctive or other non-monetary relief that would be material to the Company and the Company Subsidiaries taken as a whole. Neither the Company nor any of the Company Subsidiaries, nor any assets used by the Company or any of the Company Subsidiaries in the respective businesses, are, as of the date of this Agreement, subject to any outstanding Order that would reasonably be expected to be material to the Company and Company Subsidiaries, taken as a whole. As of the date of this Agreement, there is no Proceeding pending or, to the Company’s Knowledge, threatened, seeking to restrain, enjoin or prevent the consummation of or otherwise challenge this Agreement or the consummation of the Transactions.

Section 4.14. Compliance with Applicable Law; Permits.

(a)    The Company and each of the Company Subsidiaries is and, since January 1, 2015, has been in compliance in all material respects with all material Applicable Law and material Orders. Since January 1, 2015 and prior to the date of this Agreement, neither the Company nor any Company Subsidiary has received written or, to the Company’s Knowledge, oral notice from any Governmental Authority that the Company or any Company Subsidiary, or, to the Company’s Knowledge, any Representative of the Company or any Company Subsidiary acting on behalf of the Company or any Company Subsidiary, is in violation in any material respect of any material Applicable Law.

(b)    (i) Each of the Company and the Company Subsidiaries has all material Permits necessary for it to own, lease or otherwise hold and operate its properties and assets and to carry on its businesses and operations as now conducted (“ Company Permits ”); (ii) each such Company Permit is in full force and effect; (iii) the Company and each Company Subsidiary are in compliance in all material respects with the terms of each such Company Permit; and (iv) neither the Company nor any Company Subsidiary has received written or, to the Company’s Knowledge, oral notice from any Governmental Authority that the Company or any Company Subsidiary, or, to the Company’s Knowledge, any Representative of the Company or any Company Subsidiary acting on behalf of the Company or any Company Subsidiary, threatening to revoke, terminate, modify or not renew any such Company Permit.

Section 4.15. Material Contracts .

(a)     Section 4.15 of the Company Disclosure Schedules sets forth a true, correct and complete list, as of the date of this Agreement, of the following Contracts (but not including any Material Lease Agreements) by which any of the Company or any of the Company Subsidiaries is a party or is otherwise bound (collectively, the “ Material Contracts ”):

 

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(i)    each Contract required to be filed by the Company as a “Material Contract” pursuant to Item 601(b)(10) of Regulation S‑K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;

(ii)    each Contract (or series of related Contracts) with a customer, the payments under which constituted 0.5% or more of the Company’s consolidated revenues for the fiscal year ended December 31, 2015 or which are reasonably expected to constitute 0.5% or more of the Company’s consolidated revenues for the fiscal year ending December 31, 2016;

(iii)    each Contract to which the Company or any of the Company Subsidiaries is a party that restricts the ability of the Company or any of the Company Subsidiaries (A) to compete in any business or with any Person in any geographical area, or to sell, supply or distribute any service or product (including any non-compete, exclusivity or “most-favored nation” provisions, but excluding covenants regarding the non-solicitation of employees or other service providers entered into in the ordinary course or business), except, in each case, for any such restriction that is not material to the Company or Company Subsidiary that is party to such Contract, or (B) to purchase or acquire an interest in or substantially all of the assets of any other entity;

(iv)    each (A) credit agreement, note, debenture, bond, indenture and other similar Contract with respect to Indebtedness of the Company or any of the Company Subsidiaries, in each case in excess of $200,000, or (B) Contract (other than a Lease Agreement) pursuant to which the Company has provided an unlimited or uncapped guarantee of Liabilities of any Company Subsidiary;

(v)    each Contract that relates to any issued letters of credit or surety or performance bonds;

(vi)    each Contract (or series of related Contracts) to which the Company or any of the Company Subsidiaries is a party that by its terms calls for aggregate payments by the Company or any of the Company Subsidiaries of $1,500,000 or more over the remaining term of such Contract (or series of related Contracts), except for (A) Lease Agreements, (B) any such Contract that may be terminated, without any material penalty or other liability to the Company or any of the Company Subsidiaries, within one year, or (C) Company Employee Plans;

(vii)    each Contract entered into since January 1, 2012 to which the Company or any of the Company Subsidiaries is a party for the acquisition or disposition by the Company or any of the Company Subsidiaries of all or a portion of a business or any equity interest of another Person and which contains material obligations that are still in effect (excluding any transactions solely among the Company and any Company Subsidiaries);

(viii)    each Contract for the acquisition by the Company of a business that provides for material “earn-out” payments by the Company or any Company Subsidiary, other than those with respect to which there are no further obligations under such provisions;

(ix)    each Contract (A) under which the Company or any Company Subsidiary licenses or has the right to use any material Licensed Company IP Rights (other than shrink wrap agreements or click-through agreements for commercially-available software), (B) under which the

 

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Company or any Company Subsidiary has licensed or otherwise permitted others the right to use any Company IP Rights (other than agreements granting a non-exclusive licens


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