Exhibit 10.1
EXECUTION
STOCK PURCHASE
AGREEMENT
by and among
CLARIENT, INC.
and
OAK INVESTMENT PARTNERS XII,
LIMITED PARTNERSHIP
March 25,
2009
TABLE OF CONTENTS
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Page
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1.
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PURCHASE AND SALE OF PREFERRED
SHARES.
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2
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(A)
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PURCHASE OF PREFERRED SHARES.
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2
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(B)
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THE CLOSING DATES.
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2
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(C)
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FORM OF PAYMENT
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3
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2.
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REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER
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3
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(A)
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INVESTMENT PURPOSE
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3
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(B)
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ACCREDITED INVESTOR STATUS
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3
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(C)
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RELIANCE ON EXEMPTIONS
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3
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(D)
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INFORMATION
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3
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(E)
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NO GOVERNMENTAL REVIEW
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(F)
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TRANSFER OR RESALE
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(G)
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LEGENDS
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(H)
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AUTHORIZATION; ENFORCEMENT; VALIDITY
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(I)
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RESIDENCY
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(J)
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OWNERSHIP
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3.
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REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
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6
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(A)
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ORGANIZATION AND QUALIFICATION
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(B)
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AUTHORIZATION; ENFORCEMENT; VALIDITY
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(C)
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EQUITY CAPITALIZATION.
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7
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(D)
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INDEBTEDNESS AND OTHER CONTRACTS
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(E)
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ISSUANCE OF SECURITIES
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9
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(F)
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NO CONFLICTS.
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9
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(G)
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SEC DOCUMENTS; FINANCIAL STATEMENTS.
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10
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(H)
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ABSENCE OF LITIGATION
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11
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(I)
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ACKNOWLEDGMENT REGARDING THE PURCHASER’S
PURCHASE OF PREFERRED SHARES
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11
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(J)
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NO GENERAL SOLICITATION
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11
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(K)
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NO INTEGRATED OFFERING
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(L)
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EMPLOYEE RELATIONS; BENEFIT PLANS.
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12
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(M)
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INTELLECTUAL PROPERTY RIGHTS
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(N)
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TITLE
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(O)
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INSURANCE
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(P)
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REGULATORY PERMITS; COMPLIANCE WITH
LAW
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(Q)
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DISCLOSURE CONTROLS
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(R)
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TAX STATUS
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(S)
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TRANSACTIONS WITH AFFILIATES
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(T)
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CONTRACTS
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(U)
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APPLICATION OF TAKEOVER PROTECTIONS
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(V)
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POISON PILL
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(W)
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INVESTMENT COMPANY
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(X)
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NO MARKET MANIPULATION
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(Y)
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SPECIAL REGULATORY AND OTHER MATTERS
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(Z)
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SOLVENCY
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(AA)
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FOREIGN CORRUPT PRACTICES
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19
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4.
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COVENANTS.
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(A)
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CERTAIN PRE-CLOSING COVENANTS
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(B)
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INFORMATION STATEMENT
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(C)
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FORM D AND BLUE SKY
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(D)
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USE OF PROCEEDS
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(E)
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ACCESS
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(F)
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RESERVATION OF SHARES
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(G)
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LISTING
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(H)
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EXPENSES
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(I)
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FILING OF FORM 8-K; PRESS
RELEASES
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(J)
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TRANSACTIONS WITH AFFILIATES
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(K)
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LOCK-UP AGREEMENT.
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(L)
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CERTAIN TRADING ACTIVITIES
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(M)
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OWNERSHIP DISCLOSURE
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24
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(N)
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BOARD SEATS
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24
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5.
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TRANSFER AGENT INSTRUCTIONS
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25
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6.
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CONDITIONS TO THE COMPANY’S OBLIGATION TO
SELL ON THE CLOSING DATES.
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25
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(A)
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CONDITIONS TO THE COMPANY’S OBLIGATION TO
SELL ON THE INITIAL CLOSING DATE
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25
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(B)
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CONDITIONS TO THE COMPANY’S OBLIGATION TO
SELL ON THE SECOND CLOSING DATE
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26
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(C)
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CONDITIONS TO THE COMPANY’S OBLIGATION TO
SELL ON EACH SUBSEQUENT CLOSING DATE
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27
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7.
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CONDITIONS TO THE PURCHASER’S OBLIGATION
TO PURCHASE ON THE CLOSING DATES.
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28
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(A)
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CONDITIONS TO THE PURCHASER’S OBLIGATION
TO PURCHASE ON THE INITIAL CLOSING DATE
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(B)
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CONDITIONS TO THE PURCHASER’S OBLIGATION
TO PURCHASE ON THE SECOND CLOSING DATE
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(C)
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CONDITIONS TO THE PURCHASER’S OBLIGATION
TO PURCHASE ON EACH SUBSEQUENT CLOSING DATE
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8.
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TERMINATION.
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(A)
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TERMINATION.
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(B)
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EFFECT OF TERMINATION
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9.
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GOVERNING LAW; MISCELLANEOUS.
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(A)
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GOVERNING LAW; JURISDICTION; JURY
TRIAL
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(B)
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COUNTERPARTS
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ii
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(C)
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HEADINGS
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(D)
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SEVERABILITY
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(E)
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ENTIRE AGREEMENT; AMENDMENTS
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(F)
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NOTICES
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(G)
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SUCCESSORS AND ASSIGNS
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(H)
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NO THIRD PARTY BENEFICIARIES
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(I)
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SURVIVAL
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(J)
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PUBLICITY
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(K)
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FURTHER ASSURANCES
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(L)
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PLACEMENT AGENT
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(M)
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NO STRICT CONSTRUCTION
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(N)
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REMEDIES
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(O)
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RELIANCE
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(P)
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PAYMENT SET ASIDE
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(Q)
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FORM, REGISTRATION, TRANSFER AND EXCHANGE OF
PREFERRED STOCK; LOST PREFERRED STOCK
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(R)
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DEFINITIONS
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iii
SCHEDULES
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Schedule 3(a)
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Subsidiaries of the Company
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Schedule 3(c)
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No Preemptive Rights, Outstanding Warrants,
Etc.
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Schedule 3(d)
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Indebtedness
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Schedule 3(f)
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No Violation
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Schedule 3(h)
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Litigation
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Schedule 3(l)
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Employee Relations; Benefits Plans
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Schedule 3(m)
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Intellectual Property Claims
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Schedule 3(n)
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Title Matters
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Schedule 3(s)
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Transactions With Affiliates
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Schedule 3(t)
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Contracts
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Schedule 3(y)
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Regulatory Matters
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EXHIBITS
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Exhibit A
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Form of Certificate of Designations,
Preferences and Rights of Series A Convertible Preferred
Stock
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Exhibit B
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Form of Registration Rights
Agreement
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Exhibit C
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Form of Irrevocable Transfer Agent
Instructions
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Exhibit D
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Form of Company Counsel Opinion
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Exhibit E
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Form of Safeguard Agreement
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iv
STOCK PURCHASE
AGREEMENT
STOCK PURCHASE
AGREEMENT (the
“Agreement” ), dated as of March 25, 2009,
by and among CLARIENT, INC., a Delaware corporation, with
headquarters located at 31 Columbia, Aliso Viejo, California 92656
(the “Company” ), and OAK INVESTMENT PARTNERS
XII, LIMITED PARTNERSHIP, a Delaware limited partnership, with
headquarters located at One Gorham Island, Westport, Connecticut
06880 (the “Purchaser” ). Capitalized
terms used herein and not otherwise defined shall have the meanings
ascribed thereto in Section 9(r)
hereof.
RECITALS
The Company and the Purchaser are
executing and delivering this Agreement in reliance upon the
exemption from securities registration afforded by Rule 506 of
Regulation D ( “Regulation D” ) as promulgated
by the United States Securities and Exchange Commission (the
“SEC” ) under the Securities Act of 1933, as
amended (the “Securities Act” ). (Unless
otherwise indicated, capitalized terms used in this Agreement shall
have the meanings ascribed to such terms herein.)
The Company’s Board of
Directors has authorized 6,578,948 shares of its preferred stock,
par value $0.01 per share to be denominated as the Company’s
Series A Convertible Preferred Stock (the
“Series A Preferred Stock” ), which shall
be convertible into shares of the Company’s common stock, par
value $0.01 per share (the “Common Stock” ), in
accordance with the terms of the Company’s Certificate of
Designations, Preferences and Rights of Series A Convertible
Preferred Stock, substantially in the form attached hereto as
Exhibit A (the “Certificate of
Designations” ).
Subject to the terms and conditions
set forth in this Agreement, the Purchaser wishes to purchase an
aggregate of up to 5,263,158 shares of the Series A Preferred
Stock in the Initial Closing and Second Closing, and up to an
additional 1,315,790 shares of the Series A Preferred Stock in
one or more Subsequent Closings (the “Preferred
Shares” ), at a purchase price per share of $7.60 (the
“Purchase Price” ). All of the shares of
Common Stock which are potentially issuable upon conversion of the
Preferred Shares are referred to herein as the “Conversion
Shares . ”
Contemporaneously with the execution
and delivery of this Agreement, the Company and the Purchaser are
executing and delivering a Registration Rights Agreement
substantially in the form attached hereto as Exhibit B
(the “Registration Rights Agreement” ) pursuant
to which the Company has agreed to provide certain registration
rights under the Securities Act and the rules and regulations
promulgated thereunder, and applicable state securities
laws.
NOW THEREFORE,
the Company and the Purchaser hereby
agree as follows:
1.
PURCHASE AND SALE OF PREFERRED SHARES .
(a)
Purchase of Preferred Shares .
(i)
Subject to the terms and conditions of this Agreement, including,
without limitation, the satisfaction (or waiver) of the conditions
set forth in Sections 6(a) and 7(a)
below, the Company shall issue and sell to the Purchaser, and
the Purchaser agrees to purchase from the Company, at a purchase
price per share equal to the Purchase Price, a number of Preferred
Shares such that the number of Conversion Shares issuable upon
conversion thereof equals 19.9% of the Company’s outstanding
shares calculated in accordance with NASDAQ rules and
regulations (the “Initial Closing”
).
(ii)
Subject to the terms and conditions of this Agreement, including,
without limitation, the satisfaction (or waiver) of the conditions
set forth in Sections 6(b) and 7(b) below, the Company
shall issue and sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, at a purchase price per share equal to
the Purchase Price, a number of Preferred Shares equal to 5,263,158
minus the number of Preferred Shares purchased and sold at
the Initial Closing (the “ Second Closing ”). The Initial
Closing and the Second Closing collectively are referred to in this
Agreement as the “Closings” ).
(iii)
Following the Second Closing, subject to the mutual agreement of
the Company and the Purchaser, the Purchaser will purchase, and the
Company shall issue and sell, up to an additional $10,000,000 of
Preferred Shares (which amount may be allocated between up to two
subsequent $5,000,000 closings), subject to the terms and
conditions of this Agreement, including, without limitation, the
satisfaction (or waiver) of the conditions set forth in Sections
6(c) and 7(c) below (each, a “ Subsequent Closing ”).
(b)
The Closing Dates .
(i)
The Initial Closing shall occur as soon as practicable, but in no
event later than the second Business Day after the satisfaction or
waiver of the conditions to the Initial Closing set forth herein
(excluding conditions, that, by their terms, cannot be satisfied
until the Initial Closing) or such later date as is mutually agreed
to by the Company and the Purchaser (the “
Initial Closing Date ”).
(ii)
Only if the Initial Closing has previously occurred, the Second
Closing shall occur as soon as practicable, but in no event later
than the second Business Day after the satisfaction or waiver of
the conditions to the Second Closing set forth herein (excluding
conditions, that, by their terms, cannot be satisfied until the
Second Closing) or such later date as is mutually agreed to by the
Company and the Purchaser (the “ Second Closing Date ”).
(iii)
In the event that the parties elect to hold a Subsequent Closing,
each Subsequent Closing shall occur on such date mutually
determined by the parties (the “ Subsequent Closing Date ”). Each of the
Closing Date, the Second Closing Date and the Subsequent Closing
Date may also be referred to in this Agreement as the
“ Closing Date
”.
2
(iv)
Each Closing shall occur on the applicable Closing Date at the
offices of Stradling, Yocca, Carlson & Rauth located at
660 Newport Center Drive Suite 1600, Newport Beach, California
92660, or at such other location as the Company and the Purchaser
may mutually agree.
(c)
Form of Payment . On the applicable Closing Date,
(i) the Purchaser shall pay the Purchase Price to the Company
for the applicable Preferred Shares by wire transfer of immediately
available funds in accordance with the Company’s written wire
instructions (to be delivered not less than two (2) Business
Days prior to the applicable Closing) and (ii) the Company
shall deliver to the Purchaser stock certificates (in the
denominations as the Purchaser shall request) (the
“Preferred Stock Certificates” ) representing
such number of the Preferred Shares which the Purchaser is then
purchasing hereunder, duly executed on behalf of the Company and
registered in the name of the Purchaser.
2.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
. The Purchaser
represents and warrants, as of the date hereof, as
follows:
(a)
Investment Purpose . The Purchaser is acquiring
(i) the Preferred Shares and (ii) upon conversion of the
Preferred Shares, the Conversion Shares (the Preferred Shares and
the Conversion Shares collectively are referred to herein as the
“Securities” ), for its own account and not with
a view towards, or for resale in connection with, the distribution
thereof, provided , however , that by making the
representations herein, the Purchaser does not agree to hold any of
the Securities for any minimum or other specific term and reserves
the right to dispose of the Securities at any time in accordance
with the Securities Act, the Exchange Act and state
securities laws.
(b)
Accredited Investor Status . The Purchaser is an
“accredited investor” as that term is defined in
Rule 501(a) of Regulation D and a “qualified
institutional buyer” as that term is defined in
Rule 144A promulgated under the Securities Act.
(c)
Reliance on Exemptions . The Purchaser understands
that the Securities are being offered and sold to it in reliance on
specific exemptions from the registration requirements of the
United States federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and the
Purchaser’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set
forth herein in order to determine the availability of such
exemptions and the eligibility of the Purchaser to acquire the
Securities.
(d)
Information . The Purchaser and its advisors, if any,
have been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to
the offer and sale of the Securities which have been requested by
the Purchaser. The Purchaser and its advisors, if any, have
been afforded the opportunity to ask questions of the
Company. The Purchaser understands that its investment in the
Securities involves a high degree of risk. The Purchaser has
sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision with respect to
its acquisition of the Securities. Nothing contained in this
Section 2(d) (nor any of the inquiries described
herein nor any other due diligence investigations conducted by the
Purchaser or its advisors, if any, or its representatives) shall
modify, amend or affect the Purchaser’s right to rely on the
Company’s representations and warranties contained in
Sections 3 and 9(l) below or in any certificate
delivered hereunder.
3
(e)
No Governmental Review . The Purchaser understands
that no court, administrative agency or commission or other
governmental or quasi-governmental authority or instrumentality,
domestic or foreign, Federal, state, county or local (each a
“Governmental Entity” ) has passed on or made
any recommendation or endorsement of the Securities or the fairness
or suitability of the investment in the Securities nor have such
authorities passed upon or endorsed the merits of the offering of
the Securities.
(f)
Transfer or Resale . The Purchaser understands that:
(i) the Securities have not been and are not being registered
under the Securities Act or any state securities laws, and may not
be offered for sale, sold, assigned or transferred unless
(A) subsequently registered thereunder, (B) the Purchaser
shall have delivered to the Company an opinion of counsel (or such
other evidence reasonably acceptable to the Company), in a
generally acceptable form, to the effect that such Securities to be
sold, assigned or transferred may be sold, assigned or transferred
pursuant to an exemption from such registration, or (C) the
Purchaser provides the Company with evidence satisfactory to the
Company that such Securities may be sold, assigned or transferred
pursuant to Rule 144 promulgated under the Securities Act, as
amended (or a successor rule thereto) (
“Rule 144” ); and (ii) except as
provided in the Registration Rights Agreement, neither the Company
nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or
to comply with the terms and conditions of any exemption
thereunder. Notwithstanding the foregoing, no such
registration statement or opinion of counsel shall be necessary for
a transfer by the Purchaser (A) that is a partnership to a
liquidating trust for the benefit of its partners, to its partners
or former partners in accordance with partnership interests or to
the estate of any such partner or former partner, (B) that is
a limited liability company to its members or former members in
accordance with their interest in the limited liability company,
(C) that is a corporation to its shareholders in connection
with a distribution of the shares without value or (E) that is
an individual to the Purchaser’s family member or trust for
the benefit of the Purchaser or his or her family members or an
entity whose equity owners consist solely of the Purchaser and his
or her family members in a transfer by gift, will or intestate
succession, provided that in each case the transferee will be
subject to the terms of this Agreement to the same extent as if he,
she or it were the original Purchaser hereunder.
(g)
Legends .
(i)
The Purchaser understands that the certificates or other
instruments representing the Preferred Shares and, until such time
as the sale of the Conversion Shares have been registered under the
Securities Act as contemplated by the Registration Rights
Agreement, the stock certificates representing the Conversion
Shares, except as set forth below, shall bear a restrictive legend
in substantially the following form (in addition to any legend
required under applicable state securities laws):
4
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR (B) AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER SAID ACT AND (II) IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS.
The legend set forth above shall be removed and
the Company shall issue a certificate without such legend to the
holder of the Securities, if, unless otherwise required by state
securities laws, (i) such Securities are registered for resale
under the Securities Act, (ii) in connection with a sale
transaction, such holder provides the Company with an opinion of
counsel, in form to the reasonable satisfaction of the Company, to
the effect that a public sale, assignment or transfer of the
Securities may be made without registration under the Securities
Act, or (iii) such holder provides the Company with evidence
satisfactory to the Company that the Securities may be sold
pursuant to Rule 144 without any restriction as to the number
of securities sold or the manner of sale.
(ii)
The Purchaser understands that the certificates or other
instruments representing the Preferred Shares and the Conversion
Shares, except as set forth below, shall bear a restrictive legend
in substantially the following form:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET
FORTH IN A STOCK PURCHASE AGREEMENT DATED ON OR ABOUT
MARCH 25, 2009 BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF
THE SECURITIES.
The legend set forth above shall be removed and
the Company shall issue a certificate without such legend to the
holder of the Securities, upon written request by the holder
thereof following the expiration of the restrictions on transfer
set forth in Section 4(k) hereof.
(h)
Authorization; Enforcement; Validity . Purchaser has
full power and authority to enter into this Agreement and the
Registration Rights Agreement. This Agreement and the
Registration Rights Agreement have been duly and validly
authorized, executed and delivered on behalf of the Purchaser and
are valid and binding agreements of the Purchaser enforceable
against the Purchaser in accordance with their terms, subject as to
enforceability to general principles of equity and to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and
remedies.
(i)
Residency . The Purchaser is a resident of, and has
its principal executive offices located in, the State of
Connecticut.
(j)
Ownership . The Purchaser does not own any Common
Stock or any other securities of the Company.
5
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
. The Company represents and
warrants to the Purchaser as follows in this Section 3
, except to the extent (i) disclosed with reasonable
specificity on the schedules to this Agreement, and (ii) with
respect to all subsections in this Section 3 , other
than Sections 3(b) , 3(f) and 3(n) ,
disclosed or incorporated by reference in the Company’s
Annual Report on Form 10-K for the fiscal year ended
December 31, 2007, Quarterly Reports on Form 10-Q and
current reports on Form 8-K filed since December 31, 2007
and the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2008 (the “ 2008
Filings ”) filed by the Company (other than
(x) those sections of the 2008 Filings entitled or captioned
“Risk Factors”, (y) any disclosure of risks
included in any forward-looking statements disclaimer or other
statements that are similarly non-specific and are predictive or
forward-looking in nature and (z) specific disclosures
contained in those documents which are filed as exhibits to such
2008 Filings). Without limiting the generality of the
foregoing clause (z) , the mere filing or incorporation by
reference of an exhibit to such 2008 Filings shall not be deemed to
adequately disclose an exception to a representation or warranty
made herein (unless the representation or warranty has to do with
the existence of the exhibit itself, as opposed to the contents
thereof).
(a)
Organization and Qualification . The Company and its
“Subsidiaries” (which for purposes of this
Agreement means any Person in which the Company, directly or
indirectly, owns fifty percent (50%) or more of the outstanding
voting securities) are corporations, limited partnerships, limited
liability companies or foreign business entities duly organized and
validly existing in good standing under the laws of the
jurisdiction in which they are incorporated or formed, as
applicable, and have the requisite corporate, limited partnership,
limited liability company or respective foreign entity power and
authorization to own their respective properties and to carry on
their respective business as now being conducted. Each of the
Company and its Subsidiaries is duly qualified to do business and
is in good standing in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not have a Material
Adverse Effect. As used in this Agreement, “Material
Adverse Effect” means any material adverse effect on the
business, properties, assets, operations, prospects, results of
operations or financial condition of the Company and its
Subsidiaries, if any, taken as a whole, or on the authority or
ability of the Company to perform its obligations under the
Transaction Documents (as hereinafter defined) or the Certificate
of Designations, other than such changes, effects or circumstances
demonstrably attributable to: (i) economic conditions
generally in the United States, or conditions in general in the
industry and markets in which the Company and its Subsidiaries
conducts its businesses, except to the extent such changes
materially and disproportionately affect, in an adverse manner, the
Company and its Subsidiaries considered as a whole, (ii) any
change in the laws or regulations generally applicable to the
industry or markets in which such Person and its Subsidiaries
operate, except to the extent such changes materially and
disproportionately affect, in an adverse manner, the Company and
its Subsidiaries considered as a whole, or (iii) the entry
into and consummation of this Agreement or any of the Transaction
Documents or Certificate of Designations. The Company has no
Subsidiaries except as set forth on Schedule 3(a)
.
6
(b)
Authorization; Enforcement; Validity . The Company has
the requisite corporate power and authority to enter into and
perform its obligations under this Agreement, the Registration
Rights Agreement, the Irrevocable Transfer Agent Instructions and
each of the other agreements entered into by the parties hereto in
connection with the transactions contemplated by this Agreement
(collectively, the “Transaction Documents” ), to
execute and file the Certificate of Designations, and, with respect
of the Preferred Shares to be issued at the Second Closing, after
receipt of the NASDAQ Stockholder Approval, to issue the Securities
in accordance with the terms hereof and thereof. The
execution and delivery of the Transaction Documents by the Company
and the execution and filing of the Certificate of Designations by
the Company and the consummation by it of the transactions
contemplated hereby and thereby, including, without limitation, the
issuance of the Preferred Shares and the reservation for issuance
and the issuance of all Conversion Shares issuable upon conversion
of the Preferred Shares, have been duly authorized by the
Company’s Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors or
its stockholders, except the NASDAQ Stockholder Approval, which
shall be obtained prior to the Second Closing. The
Transaction Documents have been duly executed and delivered by the
Company, and constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, except that any rights to indemnity or contribution under
the Registration Rights Agreement may be subject to limitation by
public policy under federal securities laws, subject as to
enforceability to general principles of equity and to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and
remedies. The Certificate of Designations will be filed as
promptly as practicable with the Secretary of State of the State of
Delaware and will be in full force and effect as of the Initial
Closing Date, enforceable against the Company in accordance with
its terms. Neither the Certificate of Incorporation nor the
Certificate of Designations shall have been amended prior to any
Closing Date.
(c)
Equity Capitalization .
(i)
As of the date hereof, the authorized capital stock of the Company
consists of (A) 150,000,000 shares of Common Stock, of which
as of March 10, 2009, 77,195,120 shares are issued and
outstanding and (B) 8,000,000 shares of Preferred Stock, of
which no shares are issued and outstanding. All of such
outstanding shares have been validly issued and are fully paid and
nonassessable. Immediately prior to the Initial Closing Date,
no shares of Preferred Stock shall be outstanding and as of each
Closing Date the Series A Preferred Stock shall be the sole
authorized or designated series of Preferred Stock.
(ii)
Except as set forth in Schedule 3(c) , no shares of the
Company’s capital stock are subject to preemptive rights or
any other similar rights. Except as set forth in Schedule
3(c) , and except for (a) contingent warrants issuable
pursuant to that certain Second Amended and Restated Senior
Subordinated Revolving Credit Agreement, dated February 27,
2009, by and between the Company and Safeguard Delaware, Inc.,
including the Continuance Warrant and the Monthly Warrants (each as
defined therein), (b) options to purchase 2,330,849 shares of
Common Stock issued or issuable pursuant to the Company’s
1996 Equity Incentive Plan, (c) options to purchase 3,705,325
shares of Common Stock issued or issuable pursuant to the
Company’s 2007 Incentive Award Plan, and (d) options to
purchase 1,350,000 shares of Common Stock issued or issuable
outside of the Company’s 1996 Equity Incentive Plan
and
7
2007 Incentive Award Plan,
(A) there are no outstanding options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or
exercisable for, any shares of capital stock of the Company or any
of its Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or
may become bound to issue additional shares of capital stock of the
Company or any of its Subsidiaries or options, warrants, scrip,
rights to subscribe to, calls relating to, or securities or rights
convertible into or exercisable for, any shares of capital stock of
the Company or any of its Subsidiaries; (B) there are no
outstanding securities or instruments of the Company or any of its
Subsidiaries which contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or
may become bound to redeem a security of the Company or any of its
Subsidiaries; (C) there are no securities or instruments
containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities as described in this
Agreement; and (D) the Company does not have any stock
appreciation rights or “phantom stock” plans or
agreements or any similar plan or agreement.
(iii)
The Company has furnished or made available to each Purchaser true
and correct copies of the Company’s Certificate of
Incorporation, as amended and as in effect on the date hereof
(the “Certificate of
Incorporation” ) and the Company’s
Bylaws, as amended and as in effect on the date hereof and as of
the applicable Closing (the “Bylaws”) . The Company does not
have any certificate of designations in effect as of the date
hereof or as of any Closing Date (other than the Certificate of
Designations, which will be effective prior to the Initial Closing
Date).
(d)
Indebtedness and Other Contracts . Except as set forth
on Schedule 3(d) , neither the Company not any of its
Subsidiaries (i) has any outstanding Indebtedness (as defined
below), (ii) is in violation of any term of or in default
under any contract, agreement or instrument relating to any
Indebtedness, except where such violations and defaults would not
result, individually or in the aggregate, in a Material Adverse
Effect, or (iii) is a party to any contract, agreement or
instrument relating to any Indebtedness, the performance of which,
in the judgment of the Company’s officers, has or is expected
to have a Material Adverse Effect. For purposes of this
agreement “ Indebtedness ” means, with respect
to any Person, whether recourse is secured by or is otherwise
available against all or only a portion of such Person’s
assets, and whether or not contingent, (A) all obligations for
borrowed money, whether current, funded, secured or unsecured, and
every obligation of such Person evidenced by bonds, debentures,
notes or similar instruments, (B) all indebtedness of such
Person for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of
business), (C) all indebtedness of such Person created or
arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or
sale of such property), (D) all indebtedness of such Person
secured by a Lien to secure all or part of the purchase price of
the property subject to such mortgage or Lien, (E) all
obligations under leases which have been or must be, in accordance
with GAAP, recorded as capital leases in respect of which such
Person is liable as lessee, (F) any liability of such Person
in respect of banker’s acceptances or letters of credit,
(G) all interest, fees and other expenses owed with respect to
the indebtedness referred to above, and (H) all indebtedness
referred to above which is directly or indirectly guaranteed by
such Person or which such Person has agreed (contingently or
otherwise) to purchase or otherwise acquire or in respect of which
it has otherwise assured a creditor against loss.
8
(e)
Issuance of Securities . Upon the filing of the
Certificate of Designations with the Secretary of State of the
State of Delaware, as of each Closing, the applicable Preferred
Shares will be duly authorized and, upon issuance in accordance
with the terms hereof, shall be (i) validly issued, fully paid
and non-assessable, (ii) free from all taxes, Liens and
charges with respect to the issuance thereof and
(iii) entitled to the rights and preferences set forth in the
Certificate of Designations. Upon the filing of the
Certificate of Designations with the Secretary of State of the
State of Delaware, and as of each Closing, a sufficient number of
shares of Common Stock to permit the conversion in full of such
Preferred Shares shall be duly authorized and reserved for issuance
upon conversion of the Preferred Shares. Upon conversion in
accordance with the Certificate of Designations, the Conversion
Shares will be validly issued, fully paid and nonassessable and
free from all taxes, Liens and charges with respect to the issue
thereof, with the holders being entitled to all rights accorded to
a holder of Common Stock. Subject only to accuracy of the
representations set forth in Section 2 , the issuance
by the Company of the Securities is exempt from registration under
the Securities Act and all applicable state securities
laws.
(f)
No Conflicts .
(i)
Except as set forth on Schedule 3(f) , the execution,
delivery and performance of the Transaction Documents by the
Company, the performance by the Company of its obligations under
the Certificate of Designations and the consummation by the Company
of the transactions contemplated hereby and thereby (including,
without limitation, the reservation for issuance and issuance of
the Conversion Shares) will not:
(A)
result in a violation of the Certificate of Incorporation (after
giving effect to the Certificate of Designations), or the
Bylaws;
(B)
conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration
or cancellation of, or incremental, additional or varied rights
under, any material agreement, indenture or instrument (including,
without limitation, any stock option, employee stock purchase or
similar plan or any employment or similar agreement) to which the
Company or any of its Subsidiaries is a party (including, without
limitation, triggering the application of any change of control or
similar provision (whether “single trigger” or
“double trigger”)); or
(C)
result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws and
regulations and the rules and regulations of the Principal
Market (as hereinafter defined)) applicable to the Company or any
of its Subsidiaries or by which any property or asset of the
Company or any of its Subsidiaries is bound or
affected.
9
(ii)
Neither the Company nor its Subsidiaries is in violation of any
term of its Certificate of Incorporation or Bylaws or, in the case
of Subsidiaries, their organizational charter or bylaws,
respectively.
(iii)
The business of the Company and its Subsidiaries is not being
conducted, in violation of any law, ordinance or regulation of any
Governmental Entity, except where such violations would not result,
either individually or in the aggregate, in a Material Adverse
Effect.
(iv)
Except for (A) the filing of an information statement relating
to the NASDAQ Stockholder Approval as required under the Securities
Exchange Act of 1934, as amended (the “Exchange Act” ) and the rules and
regulations promulgated thereunder, (B) with respect to the
Second Closing and any Subsequent Closings, the NASDAQ Stockholder
Approval, (C) as may be required by any applicable state
securities laws, or (D) the filing of the Certificate of
Designations with the Secretary of State of the State of Delaware,
the Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any Governmental
Entity in order for it to execute, deliver or perform any of its
obligations under or contemplated by the Transaction Documents or
to perform its obligations under the Certificate of Designations,
in each case in accordance with the terms hereof or thereof.
All consents, authorizations, orders, filings and registrations
which the Company is required to obtain as described in the
preceding sentence shall have been obtained or effected on or prior
to each Closing Date and shall not be the subject of any pending
or, to the knowledge of the Company, threatened proceeding or other
action. The Company is not, and as of each Closing Date will
not be, in violation of the listing requirements of the NASDAQ, and
the Conversion Shares shall be authorized for listing
thereon.
(g)
SEC Documents; Financial Statements .
(i)
Since December 31, 2008, the Company has filed all reports,
schedules, forms, statements and other documents required to be
filed by it with the SEC pursuant to the reporting requirements of
the Exchange Act (all of the foregoing (including all exhibits
included therein and financial statements and schedules thereto and
documents incorporated by reference therein) and all forms,
documents and instruments filed by the Company with the SEC
pursuant to the Securities Act (including all exhibits included
therein and financial statements and schedules thereto and
documents incorporated by reference therein) being hereinafter
referred to as the “SEC Documents” ). As of their
respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act or Exchange
Act and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents. None of the SEC
Documents, at the time they were or are filed with the SEC,
contained or will contain any untrue statement of a material fact
or omitted or will omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(ii)
As of their respective dates, the financial statements of the
Company included in the SEC Documents complied as to form (and will
comply as to form) in all material respects with U.S. generally
accepted accounting principles (“ GAAP ”) and the published
rules and regulations of the SEC with respect thereto.
Such financial statements have been prepared in accordance with
GAAP, consistently applied, during the periods involved (except
(A) as may be
10
otherwise specifically
indicated in such financial statements or the notes thereto, or
(B) in the case of unaudited statements, to the extent they
may exclude footnotes or may be condensed or summary statements or
as otherwise, in each case, may be permitted by the SEC under the
Exchange Act) and fairly present in all material respects the
consolidated financial position of the Company as of the dates
thereof and the consolidated results of its operations and cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). KPMG LLP,
which has examined certain of such financial statements, is an
independent certified public accounting firm within the meaning of
the Securities Act. As of the date of this Agreement and as
of each Closing Date, the Company meets the requirements for use of
Form S-3 for registration of the resale of Registrable
Securities (as defined in the Registration Rights
Agreement).
(iii)
Since December 31, 2008, except as specified in the 2008
Filings, the Company has not incurred or suffered any liability or
obligation of any nature (absolute, accrued, contingent or
otherwise) which are not properly reserved against in the
Company’s financial statements to the extent required to be
so reflected or reserved against in accordance with GAAP, except in
the ordinary course of business and except any such liability or
obligation that has not had and could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse
Effect.
(h)
Absence of Litigation . There is no action, suit,
proceeding, inquiry or investigation before or by any court, public
board, Governmental Entity or self-regulatory organization or body
pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened against or affecting the Company, the
Common Stock or any of its Subsidiaries, except where any of the
foregoing would not reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect and
except as set forth on Schedule 3(h) .
(i)
Acknowledgment Regarding the Purchaser’s Purchase of
Preferred Shares . The Company acknowledges and agrees
that the Purchaser is acting solely in the capacity of an
arm’s length purchaser with respect to the Company in
connection with the Transaction Documents and the Certificate of
Designations and the transactions contemplated hereby and
thereby. The Company further acknowledges that the Purchaser
is not acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transaction
Documents and the Certificate of Designations and the transactions
contemplated hereby and thereby and any advice given by the
Purchaser or any representative or agent in connection with the
Transaction Documents and/or the Certificate of Designations and
the transactions contemplated hereby and thereby is merely
incidental to the Purchaser’s purchase of the
Securities. The Company further represents to the Purchaser
that the Company’s decision to enter into the Transaction
Documents has been based solely on the independent evaluation by
the Company and its representatives.
(j)
No General Solicitation . Neither the Company, nor any
of its Affiliates, nor any person acting on its or their behalf,
has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the
Securities Act) in connection with the offer or sale of the
Securities.
11
(k)
No Integrated Offering . Neither the Company, nor any
of its Affiliates, nor any person acting on its or their behalf
has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under
circumstances that would require registration of any of the
Securities under the Securities Act or cause this offering of the
Securities to be integrated with prior offerings by the Company for
purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, under the
rules and regulations of NASDAQ, nor will the Company or any
of its Subsidiaries take any action or steps (other than by
compliance with the Registration Rights Agreement) that would
require registration of any of the Securities under the Securities
Act or cause the offering of the Securities to be integrated with
other offerings.
(l)
Employee Relations; Benefit Plans . Neither the
Company nor any of its Subsidiaries is involved in any union labor
dispute nor, to the knowledge of the Company or any of its
Subsidiaries, is any such dispute threatened. Except as set
forth on Schedule 3(l) , none of the Company’s or its
Subsidiaries’ employees is a member of a union which relates
to such employee’s relationship with the Company, and neither
the Company nor any of its Subsidiaries is a party to a collective
bargaining agreement. Except as set forth on Schedule
3(l) , no executive officer of the Company or any of its
Subsidiaries has notified the Company or any such Subsidiary that
such executive officer intends to leave the Company or any such
Subsidiary or otherwise terminate such executive officer’s
employment with the Company or any such Subsidiary. To the
knowledge of the Company, no executive officer of the Company or
any of its Subsidiaries is in violation of any material term of any
employment contract, confidentiality, disclosure or proprietary
information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant, and the
continued employment of each such executive officer does not
subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters.
(ii)
The Company and its Subsidiaries are in compliance with all
federal, state, local and foreign laws and regulations respecting
labor, employment and employment practices and benefits, terms and
conditions of employment and wages and hours, except where failure
to be in compliance would not, either individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect.
(iii)
There are no material employee benefit plans, as defined in
Section 3(3) of ERISA, maintained by the Company or any
Subsidiary, or with respect to which the Company or any Subsidiary
has incurred or has reason to expect that it will incur any direct
or indirect material liability, other than those described in the
2008 Filings or as described in Schedule 3(l) (
“Benefit Plans”
).
(iv)
No Benefit Plan is subject to Title IV of ERISA or section 412 of
the Code. Except as set forth on Schedule 3(l), no Benefit
Plan is a “Multiple Employer Plan” within the meaning
of the Code or ERISA.
(v)
With respect to each Benefit Plan: (A) if it is intended
to qualify under section 401(a) or 403(a) of the Code,
the Company has no knowledge of any circumstance that could be
reasonably expected to result in such Benefit Plan’s failure
to be so qualified; (B) such Benefit Plan has been maintained
and administered at all times in substantial compliance with its
terms and applicable laws and regulations, except where the failure
to comply would not have a Material Adverse Effect; (C) to the
Company’s knowledge no event has occurred and there
exists
12
no circumstances under which
the Company or any Subsidiary could be reasonably expected to incur
material liability under ERISA, the Code or otherwise (other than
routine claims for benefits) with respect to such Benefit Plan or
with respect to any other entity’s employee benefit plan; and
(D) all contributions and premiums that are due have been paid
with respect to such Benefit Plan.
(vi)
With respect to each Benefit Plan which is an “employee
welfare benefit plan” (as defined in ERISA section 3(1))
which is maintained or contributed to by the Company or any
Subsidiary or with respect to which the Company or any Subsidiary
has or could have any direct or indirect liability as of a Closing
Date: (A) no such plan provides medical or death benefits with
respect to current or former employees of the Company or any
Subsidiary beyond their termination of employment (other than as
required to avoid an excise tax under Code section 4980B); and
(B) to the Company’s knowledge the Company and each
Subsidiary has substantially complied with the requirements of Code
section 4980B.
(vii)
The consummation of the transactions contemplated by this Agreement
and the other Transaction Documents will not: (A) entitle any
employee of the Company to severance or termination pay;
(B) accelerate the time of payment or vesting, or increase the
amount of compensation due to any employee of the Company; or
(C) result in the payment that will be taken into account in
determining whether there is an “excess parachute
payment” under Code section 280G(b)(1).
(viii)
Schedule 3(l) lists every benefit plan, policy,
agreement or arrangement, covering two or more employees or service
providers, sponsored or contributed to by either the Company or any
of its Subsidiaries, which constitutes a “nonqualified
deferred compensation plan” (as defined in
Section 409A(d)(1) of the Code and regulations
promulgated thereunder) with respect to any service provider to
either the Company or any Subsidiary. Neither the Company nor
any Subsidiary is obligated to make any payment or payments and is
not a party to (or a participating employer in) any plan, policy,
agreement or arrangement that it has reason to expect would give
rise to additional taxes or interest under Section 409A of the
Code (or any similar provision of state, local or foreign Law),
whether or not such plan, policy, agreement or arrangement is
required to be listed on Schedule 3(l) .
(m)
Intellectual Property Rights . The Company and its
Subsidiaries own or possess adequate rights or licenses to use all
trademarks, trade names, service marks, service mark registrations,
service names, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental authorizations, trade secrets and
all other intellectual property rights necessary to conduct their
respective businesses as now, or as contemplated to be, conducted,
except where the failure to own or possess such rights would not
result, either individually or in the aggregate, in a Material
Adverse Effect. Neither the Company nor its Subsidiaries has
infringed trademarks, trade names, service marks, service mark
registrations, service names, copyrights, inventions, licenses,
trade secrets or, to its knowledge (after consultation with the
Company’s senior officer in charge of patents and patent
applications), patents, patent rights or other intellectual
property rights of others, or of any development of similar or
identical trade secrets or technical information by others and,
except as set forth on Schedule 3(m) , there is no claim,
action or proceeding being made or brought against, the Company or
its Subsidiaries regarding its trademarks, trade names, service
marks, service mark registrations, service names,
patents,
13
patent rights, copyrights, inventions, licenses,
trade secrets, or infringement of other intellectual property
rights, except where any of the foregoing would not result, either
individually or in the aggregate, in a Material Adverse
Effect. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual
properties.
(n)
Title . The Company and its Subsidiaries have good and
marketable title to the leasehold estate in all real property
described in the 2008 Filings as being leased by them and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its Subsidiaries, in
each case free and clear of all Liens (other than Permitted Liens)
except (i) such as are set forth on Schedule 3(n) ,
(ii) such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company and any of its Subsidiaries,
(iii) such Liens against any landlord’s or owner’s
interest in any leased property, and (iv) for taxes not yet
due and payable. Any real property and facilities held under
lease by the Company and any of its Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and
proposed to be made of such property and facilities by the Company
and its Subsidiaries.
(o)
Insurance . All of the insurance policies covering the
Company and its Subsidiaries are in full force and effect, neither
the Company nor any of its Subsidiaries is in material default with
respect to its obligations under any of such insurance policies and
neither the Company nor any of its Subsidiaries has received any
notification of cancellation or modification of any of such
insurance policies. The Company and its Subsidiaries maintain
insurance coverage of a type and amount customary for entities of
similar size engaged in similar lines of business. Neither
the Company nor any of its Subsidiaries is or ever has been a party
to, or a beneficiary of, any other policy, insurance pool or
sharing agreement whereby any other Person(s) maintains or
maintained insurance covering the business of the
Company.
(p)
Regulatory Permits; Compliance with Law . Except the
absence of which would not result or be expected to result, either
individually or in the aggregate, in a Material Adverse Effect,
(i) the Company and its Subsidiaries possess all licenses,
certificates, authorizations, permits, consents, orders and
approvals issued by, and have made all filings, applications and
registrations with, the appropriate Governmental Entities necessary
to own or lease their respective properties and assets and to
conduct their respective businesses as conducted and as
contemplated to be conducted, and (ii) neither the Company nor
any such Subsidiary has received any notice of proceedings relating
to the revocation or modification of any such license, certificate,
authorization, permit, consent, order or approval. The
Company and each of its Subsidiaries has complied in all material
respects and is not in default or violation in any material respect
of, and none of them is, to the knowledge of the Company, under
investigation with respect to or, to the knowledge of the Company,
has been threatened to be charged with or given notice of any
material violation of, any applicable material domestic (federal,
state or local) or foreign law, statute, ordinance, license, rule,
regulation, policy or guideline, order, demand, writ, injunction,
decree or judgment of any Governmental Entity, other than such
noncompliance, defaults or violations that would not reasonably be
expected to have a Material Adverse Effect. Except for
statutory or regulatory restrictions of general application, no
Governmental Entity has placed any material restriction on the
business or properties of the Company or any of its
Subsidiaries.
14
(q)
Disclosure Controls . The Company (A) has
implemented and maintains disclosure controls and procedures (as
defined in Rule 13a-15(e) of the Exchange Act) to ensure
that material information relating to the Company and its
Subsidiaries, is made known to the chief executive officer and the
chief financial officer of the Company by others within those
entities, and (B) has disclosed, based on its most recent
evaluation prior to the date hereof, to the Company’s outside
auditors and the audit committee of the Board of Directors that
there were no (x) significant deficiencies or material
weaknesses in the design or operation of internal controls over
financial reporting (as defined in Rule 13a-15(f) of the
Exchange Act) that are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report
financial information and (y) fraud, whether or not material,
that involves management or other employees who have a significant
role in the Company’s internal controls over financial
reporting. Since December 31, 2008 and until the date of
this Agreement, (A) to the knowledge of the Company, none of
the Company, any Company Subsidiary, or any director or executive
officer of the Company or any Company Subsidiary has received or
otherwise been made aware of any written material complaint,
allegation, assertion or claim, regarding the accounting or
auditing practices, procedures, methodologies or methods of the
Company or any Company Subsidiary or their respective internal
accounting controls, and (B) to the Company’s knowledge,
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 securities laws,
breach of fiduciary duty or similar violation by the Company or any
of its executive officers, directors, employees or agents to the
Board of Directors or any committee thereof or to any director or
executive officer of the Company.
(r)
Tax Status . The Company and each of its Subsidiaries
(i) has timely made or filed all federal and state income and
all other tax returns, reports and declarations required by any
jurisdiction to which it is subject and all such tax returns,
reports and declarations were complete and correct in all material
respects and were prepared in substantial compliance with all
applicable laws and regulations, (ii) other than taxes that in
an aggregate amount would not be material (and the nonpayment of
which would not have a Material Adverse Effect), has paid all taxes
and other governmental assessments owed, except those being
contested in good faith and for which the Company has made
appropriate reserves on its books and financial statements, and
(iii) other than accruals for taxes in an aggregate amount
that would not be material (and the nonpayment of which would not
have a Material Adverse Effect), has set aside on its books
provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or
declarations (referred to in clause (i) above)
apply.
(s)
Transactions With Affiliates . Except (i) as set
forth on Schedule 3(s) , (ii) in the SEC Documents
filed with the SEC prior to the date of this Agreement,
(iii) routine compensation to directors in accordance with
policies duly adopted by the Company’s Board of Directors,
(iv) the grant of incentive equity issued under duly adopted
incentive equity plans, and (v) transactions between the
Company and its Subsidiaries and parent companies, as of the date
hereof, to the knowledge of the Company, none of the executive
officers or directors of the Company is presently a party to any
transaction with the Company (other than for services as
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employees, officers and directors), including
any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or
from any such executive officer or director or, to the knowledge of
the Company, any Person in which any such executive officer or
director has a substantial interest or is an officer, director,
trustee or partner.
(t)
Contracts . Except for the contracts, agreements and
commitments, whether written or oral, described on Schedule
3(t) , or filed as exhibits to the SEC Documents filed with the
SEC prior to the date of this Agreement (other than with
re
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