AGREEMENT AND PLAN OF REORGANIZATION BY AND AMONG SAWTEK INC., TFR ACQUISITION, INC., AND TFR TECHNOLOGIES INC.Agreement and Plan of Merger |
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Exhibit 10.47
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
SAWTEK INC.,
TFR ACQUISITION, INC.,
AND
TFR TECHNOLOGIES INC.
Dated as of December 14, 2004
CONFIDENTIAL
TABLE OF CONTENTS
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this “ Agreement ”) is by and among Sawtek Inc., a Florida corporation (“ Parent ”), TFR Acquisition, Inc., an Oregon corporation and direct wholly-owned subsidiary of Parent (“ MergerSub ”), and TFR Technologies, Inc., an Oregon corporation (the “ Company ”).
This Agreement is executed and delivered, and is entered into and effective as of December 14, 2004.
RECITALS:
WHEREAS, the Boards of Directors of Parent, MergerSub, and the Company have, in light of and subject to the terms and conditions set forth herein, approved this Agreement and the transactions contemplated hereby, including the Merger;
WHEREAS, the Board of Directors of the Company has resolved to recommend to its shareholders the approval and adoption of this Agreement and the consummation of the transactions contemplated hereby upon the terms and subject to the conditions set forth herein;
WHEREAS, at the Effective Time, MergerSub will be merged with and into the Company, the Company shall continue as the Surviving Corporation, and the separate corporate existence of MergerSub shall cease;
WHEREAS, pursuant to the Merger and subject to the terms and conditions of this Agreement, all of the issued and outstanding shares of common stock, without par value, of the Company (“ Company Common Stock ”) shall be converted into the right to receive payment from Parent in the amounts set forth below;
WHEREAS, a portion of payments by Parent in connection with the Merger shall be made by Parent to a Paying Agent for the benefit of the shareholders of the Company upon the occurrence of certain events and the satisfaction of certain conditions;
WHEREAS, Parent, MergerSub, and the Company desire to make certain representations, warranties, covenants, and agreements in connection with the Merger as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants, and agreements contained herein, and intending to be legally bound hereby, Parent, MergerSub, and the Company hereby agree as follows:
ARTICLE 1 .
1.1 The Merger . At the Effective Time and subject to and upon the terms and conditions of this Agreement and in accordance with the applicable provisions of the Oregon Business Corporation Act (the “ Act ”), MergerSub will be merged with and into the Company
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(the “ Merger ”). Following the Merger, the Company shall continue as the surviving corporation (the “ Surviving Corporation ”) and the separate corporate existence of MergerSub shall cease.
1.2 Effective Time . Subject to the provisions of this Agreement, Parent, MergerSub, and the Company shall cause the Merger to be consummated by filing Articles of Merger as set forth on Exhibit A or other appropriate documents (the “ Articles of Merger ”) with the Secretary of State of the State of Oregon in such form as required by, and executed in accordance with, the applicable provisions of the Act, as soon as practicable on the Closing Date. The Merger shall become effective upon such filing or at such time thereafter as is provided in the Articles of Merger (the “ Effective Time ”).
1.3 Closing of the Merger . The closing of the Merger (the “ Closing ”) will take place at a time and on a date to be specified by the parties (the “ Closing Date ”), which shall be no later than the second business day after satisfaction or waiver of the 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 fulfillment or waiver of those conditions), at the offices of Ater Wynne LLP, 222 SW Columbia Street, Suite 1800, Portland, Oregon 97201, or at such time, date, or place as agreed to in writing by the parties hereto.
1.4 Effects of the Merger . At the Effective Time, the Merger shall have the effects set forth in this Agreement, the Articles of Merger, and the applicable provisions of the Act. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the properties, rights, privileges, powers, and franchises of the Company and MergerSub shall vest in the Surviving Corporation, and all debts, liabilities, and duties of the Company and MergerSub shall become the debts, liabilities, and duties of the Surviving Corporation.
1.5 Articles of Incorporation and Bylaws . The name of the Surviving Corporation will be “TFR Technologies Inc.” Subject to the foregoing, effective immediately following the Merger: (a) the articles of incorporation of the Surviving Corporation shall be amended so that the articles of incorporation of MergerSub, in the form attached hereto as Exhibit B , shall be the articles of incorporation of the Surviving Corporation; and (b) the bylaws of the Surviving Corporation shall be amended so that the bylaws of MergerSub, in the form attached hereto as Exhibit C , shall be the bylaws of the Surviving Corporation.
1.6 Directors and Officers . The directors of MergerSub at the Effective Time shall become the directors of the Surviving Corporation and shall hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation until their successors are duly elected or appointed and qualified or until their earlier resignation or removal. The officers of MergerSub at the Effective Time shall become the officers of the Surviving Corporation and shall hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation until their successors are duly elected or appointed and qualified or until their earlier resignation or removal.
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ARTICLE 2 .
2.1 Conversion of Shares .
(a) At the Effective Time, each outstanding share of common stock, par value $0.001 per share, of MergerSub shall, by virtue of the Merger and without any action on the part of Parent, MergerSub, or the Company, be converted into one fully paid and nonassessable share of common stock of the Surviving Corporation.
(b) At the Effective Time, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (including Outstanding Shares but subject to Section 2.12 , not including Dissenting Shares) shall, by virtue of the Merger and without any action on the part of Parent, MergerSub, or the Company, be converted into and exchangeable for the right to receive the following payments:
(i) an amount of cash determined in accordance with the provisions of Section 2.1(c) , payable at the Effective Time, provided, however, that for any Outstanding Share issued pursuant to the exercise of Company Stock Options pursuant to Section 7.2(g) for which there is an Unpaid Exercise Price, the amount otherwise payable with respect to such Outstanding Share shall be reduced by the Unpaid Exercise Price relating to such Outstanding Share, and such amount will be reallocated among all the Outstanding Shares (the “ Tranche One Payment ”);
(ii) subject to Section 9.2(c) , an amount of cash equal to the quotient of $3,750,000 divided by the number of Outstanding Shares, payable on the first anniversary of the Effective Time (the “ Tranche Two Payment ”); and
(iii) an amount of cash determined in accordance with the provisions of Section 2.1(d) (the “ Contingent Earn-Out Payment ”).
The Tranche One Payment, the Tranche Two Payment, and the Contingent Earn-Out Payment are collectively referred to in this Agreement as the “ Merger Consideration .” The number of “ Outstanding Shares ” is the aggregate number of shares of Company Common Stock outstanding immediately prior to the Effective Time, including the shares of Company Common Stock issuable under stock options as described in Section 7.2(g).
(c) The per share Tranche One Payment is equal to the Initial Payment divided by the number of Outstanding Shares.
“ Initial Payment ” means $3,000,000 minus the sum of all out-of-pocket expenses incurred by the Company prior to the Effective Time in connection with the Merger and the other transactions contemplated hereby (including without limitation all legal, accounting, and other consulting fees, as described in Section 10.4 ).
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(d) The per share Contingent Earn-Out Payment is equal to the Distribution Amount divided by the number of Outstanding Shares.
“ Distribution Amount ” means, for each of the first four years following the Effective Time, 2.5% of actual revenues realized by TriQuint, Parent, or their affiliates for sales of Qualifying Products or for the license of Company Intellectual Property (to the extent, in the case of such licensing revenues, such revenues can be traced and allocated specifically to Company Intellectual Property, and not including in any event any revenues relating to any cross-licensing agreements) during such year, taking into account discounts, credits, offsets, and the like made in the ordinary course of business, including such discounts, credits, and offsets made on account of revenues realized in a prior year. That is, there may be up to four Distribution Amounts: one for each of the four years following the Effective Time. Notwithstanding the above, the aggregate Distribution Amounts paid under this Agreement will not exceed $3,000,000.
“ Qualifying Products ” means all products sold by TriQuint, Parent, or their affiliates that incorporate Company Intellectual Property relating to bulk acoustic wave filters except Company Products sold under U.S. Government contract number H98230-04-C-0724/0000 on Standard Form 28, between the Company and the Maryland Procurement Office, dated February 27, 2004, as amended.
Parent shall accurately report to the Shareholder Agent sales activity for Qualifying Products and the calculation of amounts owing to the shareholders therefor on an annual basis. Such reports shall be delivered within 45 days of the end of each year following the Effective Time. Parent shall also provide sale activity updates to the Shareholder Agent upon the Shareholder Agent’s reasonable request.
Parent shall keep records in sufficient detail to permit the determination of Contingent Earn-Out Payments payable under this Agreement for at least two years after each applicable period. The Shareholder Agent may have a certified independent auditor perform an audit of Parent’s financial records and other records relevant to Contingent Earn-Out Payments under this Agreement upon reasonable advance written notice to assess the accuracy of Parent’s payments, at the Shareholder Agent’s expense, subject to the last sentence of this paragraph. The audit shall be conducted during normal business hours no more than once per year, and shall be subject to a confidentiality agreement reasonably acceptable to Parent. The auditor shall report to only the Shareholder Agent the amount of any underpayment and the basis therefor, and shall provide a copy of the report to Parent. If the audit shows any underpayment, Parent shall promptly pay the outstanding amounts to the Paying Agent on behalf of the shareholders, plus interest from the time such payment was due until paid to the Paying Agent at the rate of eight percent (8%) per annum. In the case the audit establishes an underpayment greater than ten percent (10%) of the correct total for any period audited, Parent shall reimburse the Shareholder Agent’s expenses for the audit.
2.2 Stock Options .
(a) As described in Section 7.2(g), immediately prior to the Effective Time, each outstanding option to purchase shares of Company Common Stock (each a “ Company Stock Option ”) under Company’s stock option plans or arrangements (the “ Company Stock
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Option Plans ”), whether or not exercisable and whether or not vested, shall have been exercised for shares of Company Common Stock.
(b) Following the Effective Time, no holder of a Company Stock Option will have any right to receive shares of common stock of the Surviving Corporation upon exercise of the Company Stock Option.
2.3 Payment Fund .
(a) As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with or for the account of Kenneth Lakin or such other third party as may be designated by the holders of a majority in interest of the Company Common Stock, which shall be reasonably satisfactory to Parent (the “ Paying Agent ”), for the benefit of the holders of the shares of Company Common Stock, an amount of cash sufficient to pay the Tranche One Payment. Any cash deposited with the Paying Agent is referred to as the “ Payment Fund .”
(b) As of the first anniversary of the Effective Time, Parent shall deposit, or shall cause to be deposited, with or for the account of the Paying Agent, for the benefit of the holders of the Outstanding Shares, an amount of cash sufficient to pay the applicable Tranche Two Payment.
(c) No later than the 45th day following each of the first four anniversaries of the Effective Time, Parent shall deposit, or shall cause to be deposited, with or for the account of the Paying Agent, for the benefit of the holders of the Outstanding Shares, an amount of cash sufficient to pay the applicable Contingent Earn-Out Payment.
2.4 Payment Procedures .
(a) Tranche One Payment . As soon as reasonably practicable after the Effective Time (and in any event within five business days after the Effective Time), the Paying Agent shall mail to each record holder of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (including certificates representing shares of Company Common Stock issued upon exercise of Company Stock Options as described in Section 7.2(g)) (the “ Certificates ”) (i) a letter of transmittal which shall specify that delivery shall be effective and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Paying Agent, and which letter shall be in customary form and have such other provisions as Parent may reasonably specify; and (ii) instructions for effecting the surrender of such Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate to the Paying Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate shall be entitled to receive in exchange therefor a check in the amount equal to the cash that such holder has the right to receive pursuant to this Article 2 (after taking into account all shares of Company Common Stock then held by such holder).
(b) Tranche Two Payment . Within five business days after the Paying Agent receives funds for the Tranche Two Payment, the Paying Agent shall deliver appropriate checks in the amount equal to the cash each person who held Certificates is entitled to receive as Merger
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Consideration (taking into account all shares of Company Common Stock previously held by such holder).
(c) Contingent Earn-Out Payment . Within five business days after the Paying Agent receives funds for each applicable Contingent Earn-Out Payment, the Paying Agent shall deliver appropriate checks in the amount equal to the cash each person who held Certificates is entitled to receive as Merger Consideration (taking into account all shares of Company Common Stock previously held by such holder).
(d) General Provisions . Interest shall accrue on any payments of Merger Consideration from Parent to the Paying Agent at the rate of 8% per annum from the date such payment is due until the date paid to the Paying Agent. If the Merger Consideration (or any portion thereof) is to be delivered to any person other than the person in whose name the Certificate surrendered in exchange therefor is registered, it shall be a condition to such exchange that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such exchange shall pay to the Paying Agent any transfer or other Taxes required by reason of the payment of such consideration to a person other than the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Paying Agent that such Tax has been paid or is not applicable.
2.5 No Further Ownership Rights in Company Common Stock . All cash paid upon conversion of the shares of Company Common Stock in accordance with this Article 2 shall be deemed to have been issued or paid in full satisfaction of all rights pertaining to the shares of Company Common Stock.
2.6 Termination of Payment Fund . Any portion of the Payment Fund that remains undistributed to the holders of Certificates after the second anniversary of the date such funds were originally delivered to the Paying Agent shall be delivered to the Surviving Corporation or otherwise on the instruction of the Surviving Corporation, and any holders of the Certificates who have not theretofore complied with this Article 2 shall thereafter look only to the Surviving Corporation and Parent and only as general creditors thereof for the Merger Consideration to which such holders are entitled pursuant to Section 2.1 . Any such portion of the Payment Fund remaining unclaimed by holders of shares of Company Common Stock five years after the date such funds were originally delivered to the Paying Agent (or such earlier date immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Entity) shall, to the extent permitted by applicable law, become the property of the Surviving Corporation free and clear of any claims or interest of any person previously entitled thereto.
2.7 No Liability . None of Parent, MergerSub, the Company, the Surviving Corporation, or the Paying Agent shall be liable to any person in respect of any Merger Consideration delivered, in good faith, to a public official pursuant to any applicable abandoned property, escheat, or similar law.
2.8 Investment of the Payment Fund . The Paying Agent shall invest any cash included in the Payment Fund in such investments, if any, as the Paying Agent shall determine, subject to the consent of Parent, which shall not be unreasonably withheld. Any interest and
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other income resulting from such investments shall be paid to the holders of the Outstanding Shares on a pro rata basis, based on the number of Outstanding Shares owned immediately prior to the Effective Time; provided, however, that any such interest or other income remaining in the Payment Fund when it is terminated pursuant to Section 2.6 shall be paid to Parent.
2.9 Lost, Stolen, or Destroyed 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 required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity by such person against any claim that may be made against the Surviving Corporation in respect of such Certificate, the Paying Agent will deliver in exchange for such lost, stolen, or destroyed Certificate the Merger Consideration in respect of the shares of Company Common Stock formerly represented thereby.
2.10 Withholding Rights . Each of the Surviving Corporation and Parent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as it is required to deduct and withhold in respect of the making of such payment under the IRC, the rules and regulations thereunder, or any provision of a Tax law, provided that no such withholding shall be made without the Shareholder Agent’s consent, which shall not be unreasonably withheld. To the extent that amounts are so withheld by the Surviving Corporation or Parent, as the case may be, such withheld amounts shall be treated for all purposes as having been paid to the holder of Company Common Stock in respect of which such deduction and withholding was made by the Surviving Corporation or Parent, as the case may be.
2.11 Stock Transfer Books . The stock transfer books of the Company shall be closed immediately upon the Effective Time, and there shall be no further registration of transfers of shares of Company Common Stock thereafter on the records of the Company. On or after the Effective Time, any Certificates presented to the Paying Agent or Parent for any reason shall be converted into the right to receive the Merger Consideration to which the holders thereof are entitled pursuant to Section 2.1 .
2.12 Dissenting Shares . Notwithstanding any other provision of this Agreement to the contrary, shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and that are held by shareholders who did not vote in favor of the Merger (the “ Dissenting Shares ”), and the holders of which comply with all of the applicable provisions of the Act relating to dissenters’ rights (the “ Dissenting Shareholders ”), shall not be converted into or be exchangeable for the right to receive the Merger Consideration, unless and until such holders shall have failed to perfect or shall have effectively withdrawn or lost their dissenters’ rights under the Act. If any Dissenting Shareholder shall have failed to perfect or shall have effectively withdrawn or lost the right to dissent, such holder’s shares of Company Common Stock shall thereupon be treated as though such shares of Company Common Stock had been converted, as of the Effective Time, into the right to receive the Merger Consideration pursuant to this Article 2 . The Company shall give Parent (i) prompt notice of any written demands for appraisal of any shares of Company Common Stock, attempted withdrawals of such demands, and any other instruments served pursuant to the Act and received by the Company relating to shareholders’ rights of appraisal, and (ii) the opportunity to direct all negotiations and
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proceedings in respect of demands for appraisal under the Act. Neither the Company nor the Surviving Corporation shall, except with the prior written consent of Parent, voluntarily make any payment in respect of, or settle or offer to settle, any such demand for payment.
ARTICLE 3.
Parent and MergerSub each represent and warrant to the Company as follows (with the understanding that the Company is relying materially on such representations and warranties in entering into and performing this Agreement):
3.1 Due Organization . Each of Parent and MergerSub is a corporation, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has all requisite corporate power and authority to own, lease, or otherwise hold its assets and properties and to carry on its business as presently conducted.
3.2 Authorization and Effect of Agreement . Each of Parent and MergerSub has the requisite corporate power to execute and deliver this Agreement and to perform the transactions contemplated hereby to be performed by it. The execution and delivery of this Agreement by each of Parent and MergerSub and the performance by Parent and MergerSub of their respective obligations hereunder have been duly authorized by all necessary corporate action on the part of Parent and MergerSub and by the sole shareholder of MergerSub. This Agreement has been duly executed and delivered by each of Parent and MergerSub and, assuming the due execution and delivery of this Agreement by the Company, constitutes a valid and binding obligation of each of Parent and MergerSub, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
3.3 No Violations; Consents and Approvals . The execution and delivery of this Agreement by each of Parent and MergerSub does not, and the performance by each of Parent and MergerSub of the transactions contemplated hereby to be performed by it will not (i) conflict with or violate the certificate or articles of incorporation or bylaws of Parent or MergerSub, (ii) conflict with or violate, or constitute a default (with or without notice, lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation, or acceleration of any obligation or to loss of a benefit under, any material contract or permit to which Parent or MergerSub is a party or by which it is bound, or (iii) conflict with or violate any federal, state, local, or foreign law, rule, or regulation (“ Law ”) applicable to Parent or any order, judgment, decree, writ, or injunction (“ Order ”) of any Governmental Entity applicable to Parent. Except for any filings, permits, authorizations, consents, and approvals required under the Securities Act of 1933, as amended (the “ Securities Act ”), the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), state securities or blue sky laws, and the filing of the Articles of Merger with the Secretary of State of the State of Oregon, no consent, approval, order, or authorization of, or registration, declaration, or filing with any domestic or foreign court, government, governmental or regulatory agency, authority, entity, or instrumentality or subdivision thereof (each, a “ Governmental Entity ”) is required to be obtained or made by or in respect of Parent or MergerSub in connection with the execution and delivery of this Agreement by each of Parent
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and MergerSub or the performance by it of the transactions contemplated hereby to be performed by it.
ARTICLE 4 .
The Company hereby represents and warrants to Parent and MergerSub, subject to such exceptions as are specifically disclosed in the disclosure schedules delivered by the Company to Parent with this Agreement, the matters set forth in this Article 4 (with the understanding that Parent and MergerSub are relying materially on each such representation and warranty in entering into and performing this Agreement). Parent and MergerSub agree that any exception or limitation set forth in one disclosure schedule or section of this Article 4 shall be deemed an exception or limitation to any other Section of this Article 4 if the relevance of such disclosure to such other section is reasonably apparent.
4.1 Capitalization; Ownership of Shares; No Liens on Shares . The authorized capital stock of the Company consists of 10,000,000 shares of Company Common Stock, of which 5,499,334 shares are issued and outstanding as of the close of business on the date hereof. All of such issued and outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid, and nonassessable. All of such shares of Company Common Stock are owned of record by the holders as set forth on Schedule 4.1 . None of such shares of Company Common Stock were issued or will be transferred under this Agreement in violation of any preemptive or preferential rights of any person of which the Company has actual notice. As of the date of this Agreement, 600,666 shares of Company Common Stock are reserved for issuance and issuable or otherwise deliverable in connection with the exercise of outstanding Company Stock Options issued pursuant to the Company Stock Option Plan, and no shares of Company Common Stock are issuable upon exercise of options issued outside the Company Stock Option Plan. As of the date of this Agreement, the Company has issued no warrants to purchase shares of Company Common Stock. Except as set forth in the preceding sentences, as of the date hereof, there are no outstanding options, warrants, calls, subscriptions, conversion, exchange, or other similar rights, agreements, or commitments to acquire from the Company any shares of capital stock or any other securities convertible into, exercisable or exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company. There are no shareholder agreements, voting trusts, or other agreements to which the Company is a party or to which it is bound relating to the voting of any shares of capital stock of the Company (other than the Voting Agreement between Parent and certain shareholders of the Company). The Company has not issued any stock appreciation rights or other rights related to equity participation, and the Company has no debt instruments outstanding that have any voting rights. Schedule 4.1 sets forth true and complete information regarding the name of the holder, the term, the current exercise price, the date of grant, the type of option (incentive or nonqualified), and the number of Company Stock Options granted to each holder of Company Stock Options.
4.2 Due Organization . The Company and each of its Subsidiaries is a corporation duly organized and validly existing under the laws of the jurisdiction of its incorporation and has all requisite corporate power and authority to own, lease, or otherwise hold its assets and properties and to carry on its business as presently conducted. The Company and each Subsidiary is qualified to do business and is in good standing in the jurisdictions set forth on
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Schedule 4.2 , which jurisdictions represent every jurisdiction where such qualification is required, except where the failure to be so qualified would not have a Material Adverse Effect.
4.3 Subsidiaries .
(a) Schedule 4.3 sets forth (i) the name of each Subsidiary of the Company, (ii) the name of each corporation, partnership, joint venture or other entity (other than Subsidiaries of the Company) in which the Company has, or has the right to acquire, an equity or other ownership interest and (iii) the capitalization of the foregoing and the percentage of equity or other ownership interests therein held by the Company or by any of its Subsidiaries.
(b) All of the outstanding shares of capital stock of each corporate Subsidiary of the Company have been duly authorized and validly issued, are fully paid, and nonassessable, and have not been issued in violation of any preemptive rights or federal or state securities law. The stock or other ownership interest of each Subsidiary of the Company shown to be owned by the Company or a Subsidiary of the Company on Schedule 4.3 is owned by the Company or such Subsidiary of record and beneficially free and clear of any liens, restrictions, pledges, security interests, claims, rights of another, or encumbrances of any nature whatsoever (“ Liens ”).
(c) There are no options, warrants, calls, subscriptions, conversion, exchange, or other similar rights, agreements, or commitments obligating any of the Subsidiaries of the Company to issue any additional shares of capital stock or other ownership interests of such Subsidiary or any other securities convertible into or exchangeable for or evidencing the right to subscribe for any shares of such capital stock or other ownership interests or obligating the Company or any of its Subsidiaries to transfer any of their respective shares of capital stock or other ownership interests of such Subsidiary.
(d) “ Subsidiary ” means, when used with reference to any entity, any corporation or other organization, whether incorporated or unincorporated, (i) of which such party or any other subsidiary of such party is a general or managing partner or (ii) the outstanding voting securities or interests of which having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions in respect of such corporation or other organization are directly or indirectly owned or controlled by such party or by any one or more of its subsidiaries.
4.4 Authority; Absence of Conflicts .
(a) The Company has full corporate power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly approved by the Board of Directors of the Company, and no other corporate action on the part of the Company is necessary to authorize and approve the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (other than, in respect of the Merger and this Agreement, the Company Requisite Vote). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due execution and delivery of this Agreement by each of Parent and MergerSub, constitutes the valid and binding obligation of the Company, enforceable against it in accordance
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with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(b) The Board of Directors of the Company has taken all corporate actions required to be taken by the Board of Directors of the Company for the consummation of the transactions contemplated hereby (including the Merger). The affirmative approval of the holders of shares of Company Common Stock representing a majority of the votes that may be cast by the holders of all outstanding shares of Company Common Stock (the “ Company Requisite Vote ”) are the only votes of the holders of any class or series of capital stock of the Company necessary to adopt this Agreement and approve the transactions contemplated hereby, including the Merger.
(c) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance with the terms hereof, will (i) materially conflict with or violate or result in a material breach of the articles of incorporation or bylaws of the Company, nor (ii) materially conflict with or violate or result in a material breach of or material default (with or without notice, lapse of time, or both) under, or give rise to a right of termination, amendment, cancellation, or acceleration of any material obligation or to loss of a material benefit under any material agreement, understanding, arrangement, commitment, indenture, contract, lease, sublease, loan agreement, note, or other material document or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which it, any of its Subsidiaries or its or any of its Subsidiaries assets are subject, nor (iii) result in the creation of any Liens on the assets, capital stock, or properties of the Company or any of its Subsidiaries other than Permitted Liens, nor (iv) materially conflict with, violate or result in a material breach of or constitute a material default under any Law or Order to which the Company, any of its Subsidiaries or any of the Company’s or any of its Subsidiaries’ assets or properties are subject, nor (v) require the Company or any of its Subsidiaries to give notice to, or obtain an authorization, approval, order, license, franchise, declaration, or consent of, or make a filing with, any third person, including, without limitation, any Governmental Entity, other than such filings as may be required under the Securities Act, state securities or blue sky laws, the filing of the Articles of Merger with the Secretary of State of the State of Oregon, and the consents and approvals identified on Schedule 4.4(c) and such other authorizations, approvals, orders, licenses, franchises, declarations, consents, or filings, the failure to obtain or make which could not reasonably be expected to result in a Material Adverse Effect on the Company.
4.5 Financial Statements .
(a) The following financial statements of the Company are attached hereto as Schedule 4.5 :
(i) The “ Interim Financial Statements ,” defined as the unaudited consolidated balance sheet and related statement of income, shareholders’ equity, and cash flows of the Company and its Subsidiaries as of and for the period beginning on the first day of the current fiscal year, and ending
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on the Statement Date (the “ Interim Statement Period ”). The “ Statement Date ” means the last day of the calendar month preceding the date of this Agreement.
(ii) The audited consolidated balance sheet and related statements of income, shareholders’ equity, and cash flows of the Company and its Subsidiaries, as of and for the three most recent fiscal years, together with notes thereto and the report of the Company’s auditor in respect thereof (the “ Annual Financial Statements ,” and together with the Interim Financial Statements, the “ Financial Statements ”).
(b) Except for, in respect of the Interim Financial Statements, normally recurring year-end audit adjustments that in the aggregate are immaterial and the omission of footnote disclosures, the Financial Statements (i) fairly present in all material respects the financial position, results of operations, and cash flows of the Company and its Subsidiaries for the respective periods stated therein, (ii) have been prepared from and are consistent with the books and records of the Company and its Subsidiaries, and (iii) have been prepared in accordance with GAAP consistently applied throughout the relevant periods.
4.6 Absence of Undisclosed Liabilities . Except as set forth on Schedule 4.6 , neither the Company nor any of its Subsidiaries has any material liabilities or obligations of any nature, whether accrued, absolute, contingent, unliquidated, or otherwise, whether due or to become due and whether arising out of transactions entered into or any condition or state of facts existing on or prior to the date hereof, that would in accordance with GAAP be required to be reflected on, or disclosed in the notes to, a balance sheet, other than (i) liabilities and obligations set forth on the Interim Financial Statements, and (ii) liabilities and obligations that have arisen after the date of the Interim Financial Statements in the ordinary course of business and consistent with past practices, all of which are properly reflected in the books and records of the Company and its Subsidiaries.
4.7 Conduct of Business; Certain Actions . Except as set forth on Schedule 4.7 and for the transactions contemplated by this Agreement, since the Statement Date, each of the Company and its Subsidiaries has conducted its business and operations in the ordinary course and consistent with past practices and neither the Company nor its Subsidiaries has:
(a) paid or declared any dividend or distribution or purchased or retired any indebtedness from any shareholder thereof, or directly or indirectly purchased, retired, or redeemed any capital stock from any shareholder;
(b) increased the compensation of any of the directors, officers, or employees of, or consultants to, the Company or any Subsidiary or, except for wage and salary increases made in the ordinary course of business and consistent with past practices or as required by Law;
(c) made any capital expenditures in excess of $25,000 in the aggregate;
(d) sold any asset (or any group of related assets) to any director, officer, or employee of the Company or any Subsidiary;
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(e) sold any asset to any person other than a director, officer, or employee of the Company or any Subsidiary, in any transaction (or series of related transactions) in which the purchase price for such asset (or group of related assets) exceeded $25,000, except for sales of inventory in the ordinary course of business and consistent with past practices;
(f) leased, licensed, or granted to any third person any rights in any of its assets or properties except in the ordinary course of business and consistent with past practices;
(g) revalued any of its assets;
(h) discharged or satisfied any Lien or paid any obligation or liability, absolute or contingent, other than current liabilities incurred and paid in the ordinary course of business and consistent with past practices;
(i) failed to pay any accounts payable of the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice and in accordance with their terms;
(j) accelerated the collection of, or sold or otherwise transferred, any accounts receivable of the Company or any of its Subsidiaries;
(k) made or guaranteed any loans or advances to any person whatsoever;
(l) canceled, waived, released, or forgiven any debts or obligations of, or rights or claims against, third persons;
(m) amended the articles of incorporation or bylaws of the Company or any of its Subsidiaries;
(n) made or paid any severance or termination payment to any employee or consultant of the Company or any of its Subsidiaries in excess of $5,000 in the aggregate;
(o) made any change in its financial or Tax accounting principles or methods;
(p) made any investment in any person;
(q) made, entered into, amended, or terminated any written employment or consulting contract, created, made, amended, or terminated any bonus, stock option, pension, retirement, profit sharing, or other employee benefit plan or arrangement, or withdrawn from any “multi-employer plan” (as defined in IRC Section 414(f)), so as to create any liability under Article IV of ERISA to any entity;
(r) amended or experienced a termination of any contract, agreement, lease, franchise, or license required to be listed on Schedule 4.15(a) or (b) ;
(s) agreed to do any acts described in the foregoing clauses (a)-(r) of this Section 4.7 ;
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(t) suffered any material damage, destruction, or loss (whether or not covered by insurance) to any material assets of the Company or any of its Subsidiaries;
(u) made or revoked any Tax election that could reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries, or compromised or settled any material Tax liability;
(v) experienced any strike, slowdown, or demand for recognition by a labor organization by or in respect of any of the employees of the Company or any of its Subsidiaries; or
(w) experienced any event or condition that has had or could reasonably be expected to result in a Material Adverse Effect.
4.8 Real Property .
(a) Schedule 4.8(a) sets forth a complete list and summary description of all real property leased by the Company or any of its Subsidiaries (the “ Leased Real Property ”). The Company owns no real property. Each of the Company and its Subsidiaries has delivered or made available to Parent and MergerSub true and correct copies of all leases, subleases, abstracts of title, surveys, title opinions, and title insurance policies in the Company’s and its Subsidiaries’ possession, custody, or control relating to the Leased Real Property.
(b) Except as set forth on Schedule 4.8(b) , each of the Company and its Subsidiaries has a valid leasehold interest in all Leased Real Property, free and clear of any Lien (other than Permitted Liens). Each of the Company and its Subsidiaries has good and marketable title to all structures, plants, leasehold improvements, systems, fixtures, and other property located on or about any of the Leased Real Property that is owned by the Company and its Subsidiaries, as reflected in the Interim Financial Statements, free and clear of any Lien except for Permitted Liens. None of the Leased Real Property or other such assets is subject to any agreement, arrangement, or understanding for its use by any person other than the Company or its Subsidiaries. As used in this Agreement, the term “ Permitted Liens ” means (i) Liens for current Taxes not yet due and payable, (ii) covenants, conditions, and restrictions of record, none of which materially impairs the use of such property in the manner currently used or impairs the ability of the Company or any of its Subsidiaries to transfer a valid leasehold interest to such Leased Real Property, (iii) any materialmen’s, mechanic’s, workmen’s, repairmen’s, contractor’s, warehousemen’s, carrier’s, supplier’s, vendor’s or similar lien, if payment is not yet due on the underlying obligation, (iv) Liens in respect of pledges or deposits under workers’ compensation laws or similar legislation, (v) all building codes, zoning ordinances, planning restrictions and other laws, ordinances, regulations, rules, orders or determinations of any federal, state, county, municipal or other governmental authority heretofore, now or hereafter enacted, made or issued by any such authority affecting the property, and (vi) minor defects in title, none of which, individually or in the aggregate, materially interfere with the use of such property.
(c) Each of the leases and subleases relating to the Leased Real Property is in full force and effect, there is no material default by the Company or any Subsidiary (or to the
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knowledge of the Company, by the lessor) under any such lease or sublease, and each such lease and sublease will remain in full force and effect immediately following the Closing without any modification in the rights or obligations of the parties under any such lease or sublease agreed to by the Company or any of its Subsidiaries.
4.9 Tangible Personal Property .
(a) Each of the Company and its Subsidiaries has good and marketable title to all machinery and equipment, tools, spare and maintenance parts, furniture, vehicles, and all other tangible personal property (collectively, the “ Tangible Personal Property ”) owned by the Company and its Subsidiaries, free and clear of any Liens, except for Permitted Liens, and/or pursuant to applicable leases. All items of Tangible Personal Property currently owned or used by the Company and its Subsidiaries as of the date hereof are in good operating condition and repair in all material respects in light of their respective ages, ordinary wear and tear excepted, are physically located at or about the Company’s place of business and are owned outright by the Company and its Subsidiaries or, to the Company’s knowledge, validly leased. None of the Tangible Personal Property is subject to any agreement, arrangement, or understanding for its use by any person other than the Company or its Subsidiaries. The maintenance and operation of the Tangible Personal Property complies in all material respects with all applicable Laws, ordinances, contractual commitments, and obligations. Schedule 4.9(a) sets forth a brief description of all Tangible Personal Property subject to any conditional sale agreement, installment sale agreement, or title retention or security agreement or arrangement of any kind, and the amount and repayment terms of the underlying obligation. Schedule 4.9(a) sets forth a complete and correct fixed asset list of the Company and its Subsidiaries dated as of the Statement Date.
(b) Schedule 4.9(b) sets forth a complete and correct list of all material Tangible Personal Property leases to which the Company or any of its Subsidiaries is a party, together with a brief description of the property leased. Each of the Company and its Subsidiaries has made available to Parent and MergerSub complete and correct copies of each lease (and any amendments thereto) listed on Schedule 4.9(b) . Except as set forth on Schedule 4.9(b) : (i) each such lease is in full force and effect; (ii) all lease payments due to the date hereof on any such lease have been paid, and neither the Company, any of its Subsidiaries, nor (to the knowledge of the Company) any other party is in material default under any such lease, and no event has occurred that constitutes, or with or without notice, lapse of time, or both would constitute, a material default by the Company or any of its Subsidiaries or (to the knowledge of the Company) any other party under such lease; and (iii) there are no disputes or disagreements between the Company or any of its Subsidiaries and any other party in respect of any such lease.
4.10 Accounts Receivable . The accounts receivable and notes receivable (collectively, the “ Accounts Receivable ”) reflected on the Interim Financial Statements are, and the Accounts Receivable of the Company created from and after the date of the Interim Financial Statements to the Closing Date will be, free and clear of any Liens, other than write-offs, discounts or credits made in the ordinary course of business consistent with past practice. All Accounts Receivable of the Company and its Subsidiaries (i) arose from bona fide sales of goods or services in the ordinary course of business consistent with past practices, (ii) subject to any reserves for
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doubtful accounts, are accurately and fairly reflected on the Interim Financial Statements or, in respect of Accounts Receivable of the Company and its Subsidiaries created after the date thereof, are accurately and fairly reflected in the books and records of the Company, and (iii) except as set forth on Schedule 4.10 , are valid obligations of the makers thereof, and there is no pending or, to the knowledge of the Company, threatened contest, claim, or right of set-off contained in any agreement with any maker of any such Account Receivable relating to the amount or validity thereof.
4.11 Accounts Payable . All accounts payable of the Company and its Subsidiaries (i) arose from bona fide purchases in the ordinary course of business consistent with past practices, and (ii) are accurately and fairly reflected on the Interim Financial Statements or, in respect of accounts payable of the Company and its Subsidiaries created after the date thereof, are accurately and fairly reflected in the books and records of the Company.
4.12 Sales Representatives and Other Sales Agents/Sales Offices . Schedule 4.12 sets forth a complete and correct list of the names and addresses of each sales representative or other sales agent currently engaged by the Company and its Subsidiaries who is not an employee of the Company or its Subsidiaries, and a summary description of the territory assigned to each such person (noting whether such territory is exclusive or non-exclusive). Schedule 4.12 also sets forth a complete and correct list of all agreements between the Company, its Subsidiaries and any such person, complete and correct copies of which agreements have been provided or made available to Parent and MergerSub.
4.13 Inventory . The inventory of the Company and its Subsidiaries, including, without limitation, raw materials, work in progress, and finished goods, consists only of items of a quality and quantity useful or saleable in the ordinary course of business of the Company and its Subsidiaries and consistent with past practices, other than immaterial portions thereof. The inventory of the Company and its Subsidiaries was purchased at prices and in quantities consistent with the Company’s custom in the ordinary course of business. Schedule 4.13 sets forth a complete and correct list of the inventory of the Company and its Subsidiaries as of the Statement Date.
4.14 Backlog . All outstanding customer purchase orders for products of the Company and its Subsidiaries have been entered at prices and upon terms and conditions consistent with the normal practices of the Company and its Subsidiaries, and the completion of such orders will not, to the knowledge of the Company, have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has been informed by any customer that any material order included in the Company’s or its Subsidiaries’ backlog is likely to be cancelled or terminated prior to its completion.
4.15 Material and Affiliated Contracts .
(a) Schedule 4.15(a) sets forth a complete and correct list of all of the following agreements, to which the Company or any Subsidiary is a party, copies of which the Company has delivered or made available to Parent:
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(i) any agreement, arrangement, or understanding, or series of related agreements, arrangements, or understandings, that involves annual expenditures or receipts by the Company or any of its Subsidiaries of more than $25,000 or that provides for performance, regardless of amounts, over a period in excess of one (1) year after the date of such agreement, arrangement, or understanding;
(ii) any license agreement, whether as licensor or licensee, other than licenses for generally available software used by the Company and its Subsidiaries in the ordinary course of business;
(iii) any agreement with suppliers or customers for discounts or allowances;
(iv) any note, bond, indenture, credit facility, mortgage, security agreement, or other instrument or document relating to or evidencing indebtedness for money borrowed or a security interest in or mortgage on the assets of the Company and its Subsidiaries;
(v) any express warranty, indemnity, or guaranty issued by the Company or any of its Subsidiaries (other than customary product warranties provided by the Company and its Subsidiaries in the ordinary course of business);
(vi) any agreement, arrangement, or understanding granting to any person the right to use any property or property right of the Company or any of its Subsidiaries, including any lease;
(vii) any agreement, arrangement, or understanding restricting the right of the Company or any of its Subsidiaries to engage in any business activity or to compete with any business;
(viii) any joint venture agreement;
(ix) any agreement granting to any person the right to manufacture or distribute products of the Company or any of its Subsidiaries;
(x) any other material agreement, arrangement, or understanding not made in the ordinary course of business and consistent with past practices; or
(xi) any outstanding offer or commitment to enter into any contract or arrangement of the nature described in clauses (i) through (x) of this Section 4.15(a) .
(b) Schedule 4.15(b) contains a complete and correct list and description of all agreements, arrangements, and understandings (including outstanding indebtedness) that are currently in effect between the Company or its Subsidiaries and any of the following and that
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involve a value of $25,000 or more: (i) each director and officer of the Company or any of its Subsidiaries; (ii) the spouses, children, grandchildren, siblings, parents, grandparents, uncles, aunts, nieces, nephews, or first cousins of any director or officer of the Company or any of its Subsidiaries or their respective spouses (collectively, “ near relatives ”); (iii) any trust for the benefit of any director or officer of the Company or any of its Subsidiaries or any of their respective near relatives; and (iv) any person owned or controlled by any director or officer of the Company or any of its Subsidiaries or any of their respective near relatives. The agreements, arrangements, and understandings described in Schedules 4.15(a) and 4.15(b) are collectively referred to herein as “ Material Contracts .”
(c) Each of the Company and its Subsidiaries has delivered or made available to Parent and MergerSub complete and correct copies of each written Material Contract (and all amendments thereto). Except as set forth on Schedule 4.15(c) : (i) each Material Contract is in full force and effect; (ii) neither the Company, any of its Subsidiaries, nor, to the knowledge of the Company, any other party is in material default under any such Material Contract, and no event has occurred that constitutes, or that with or without notice, lapse of time, or both would constitute, a material default by the Company or any Subsidiary or, to the knowledge of the Company, by any other party under such Material Contract; and (iii) there are no disputes or disagreements between the Company or any of its Subsidiaries and any other party in respect of any such Material Contract.
4.16 Compliance with Laws . Except as set forth on Schedule 4.16 , each of the Company and its Subsidiaries is complying and has complied in all material respects with all Laws and ordinances applicable to its business, properties, and operations, and has secured all necessary permits, authorizations, and licenses issued by any Governmental Entity applicable to its business, properties, and operations, other than such items the failure of which to obtain would not result in a Material Adverse Effect on the Company. Except in respect of incidents of noncompliance that have been corrected, neither the Company nor any Subsidiary has received any notice alleging a failure to so comply or to secure such a permit, authorization, or license nor, to the knowledge of the Company, is there any inquiry, investigation, or proceeding relating thereto.
4.17 Legal Proceedings . Except as set forth on Schedule 4.17 , there are no actions, suits, proceedings (including, without limitation, arbitral and administrative proceedings), claims, or governmental or regulatory investigations or audits pending or, to the knowledge of the Company, threatened, against the Company, any of its Subsidiaries, or its or its Subsidiaries’ properties, assets, or business, or to the knowledge of the Company, pending or threatened against, relating to, or involving any of the officers, directors, employees, or agents of the Company or any of its Subsidiaries in connection with the business of the Company or any of its Subsidiaries. There are no such actions, suits, proceedings, claims, or investigations pending or, to the knowledge of the Company, threatened, challenging the validity or propriety of, or otherwise relating to or involving, this Agreement or the transactions contemplated hereby. Except as set forth on Schedule 4.17 , there is no Order or award (whether issued by an arbitrator, a Governmental Entity, or otherwise) to which the Company or any of its Subsidiaries is a party, or involving the property, assets, or business of the Company or its Subsidiaries, that is unsatisfied or that requires continuing compliance therewith by the Company or any of its Subsidiaries. For the purposes of this Agreement, an action, suit, proceeding, claim,
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investigation, dispute, or other matter will be deemed to have been “ threatened ” if any demand or statement has been made in writing or any notice has been given in writing that such action, suit, proceeding, claim, investigation, dispute, or other matter is likely to be asserted, commenced, taken, or otherwise pursued in the future.
4.18 Ability to Conduct the Business . Except as set forth on Schedule 4.18 , there is no agreement, arrangement, or understanding to which the Company or any of its Subsidiaries is a party, nor any Order of any Governmental Entity directed at the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries is named nor, to the knowledge of the Company, any other Order that could in any such case materially prevent the use by the Company or any of its Subsidiaries of its or its Subsidiaries’ assets and properties or the conduct by the Company or its Subsidiaries of its or its Subsidiaries business as of the date hereof. Each of the Company and its Subsidiaries has in force, and has complied in all material respects with, all of the conditions and requirements imposed by, all material permits, licenses, exemptions, consents, authorizations, and approvals used in or required for the conduct of its business as presently conducted. Neither the Company nor any Subsidiary has received any notice of, and to the knowledge of the Company, there is no intention on the part of any Governmental Entity to cancel, revoke, or modify, or any inquiries, proceedings, or investigations the purpose or possible outcome of which is the cancellation, revocation, or modification of, any such permit, license, exemption, consent, authorization, or approval. Such permits, licenses, exemptions, consents, authorizations, and approvals will not be adversely affected by the consummation of the transactions contemplated hereby.
4.19 Labor Matters .
(a) Neither the Company nor any of its Subsidiaries is a party to any labor or collective bargaining agreement, and no employees of the Company or any of its Subsidiaries are represented by any labor organization. Within the preceding three years, there have been no representation or certification proceedings, or petitions seeking a representation proceeding, pending or, to the knowledge of the Company, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. Within the preceding three years, to the knowledge of the Company, there have been no organizing activities involving Company or any of its Subsidiaries in respect of any group of employees of Company or any of its Subsidiaries.
(b) There are no strikes, work stoppages, slowdowns, lockouts, material arbitrations, or material grievances or other material labor disputes pending or, to the knowledge of the Company, threatened against or involving the Company or any of its Subsidiaries. There are no unfair labor practice charges, grievances, or complaints pending or, to the knowledge of the Company, threatened by or on behalf of any employee or group of employees of the Company or its Subsidiaries that, if individually or collectively resolved against the Company or its Subsidiaries, would have a Material Adverse Effect.
(c) Each of the Company and its Subsidiaries is in material compliance with all Laws and Orders relating to the employment of labor, including all such Laws and Orders relating to wages, hours, the Worker Adjustment and Retraining Notification Act, as amended (“ WARN ”), collective bargaining, discrimination, civil rights, safety and health, workers’
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compensation, and the collection and payment of withholding and/or social security Taxes and any similar Tax.
(d) There has been no “mass layoff” or “plant closing” as defined by WARN in respect of the Company or its Subsidiaries within the six months prior to Closing.
(e) Schedule 4.19(e) sets forth the names of all directors and officers of the Company and its Subsidiaries, together with the respective term of office and titles for each such person and all remuneration payable to any such officers and directors. Schedule 4.19(e) includes, in respect of each employee, director and officer of the Company and its Subsidiaries, such person’s date of employment, the current salary and commission terms of such person, the amount of any bonuses or other cash compensation (other than regular salary or commissions) paid during and since the end of the Company’s most recent fiscal year to such person and a description of all compensation arrangements currently applicable to such person.
4.20 Employee Benefit Plans .
(a) List of Benefit Plans and Employee Arrangements . Sch | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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