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<PAGE>
EXHIBIT 10.1
CONFIDENTIAL EXECUTION COPY
STOCK PURCHASE AGREEMENT
by and between
IDEX CORPORATION
and
NOVA HOLDINGS, LLC
November 13, 2007
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TABLE OF CONTENTS
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PAGE
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ARTICLE I - PURCHASE AND SALE OF THE SUBJECT SHARES;
CLOSING............. 1
Section 1.1. Certain
Definitions..................................... 1
Section 1.2. Purchase and Sale of the Subject
Shares................. 10
Section 1.3. Purchase
Price.......................................... 10
Section 1.4.
Closing................................................. 10
Section 1.5. Certain Payments and Deliverables at
Closing............ 10
Section 1.6. Adjustments to Estimated Purchase
Price................. 11
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF
SELLER.................... 13
Section 2.1. The Subject
Shares...................................... 13
Section 2.2. Existence; Good Standing;
Authority..................... 13
Section 2.3.
Capitalization.......................................... 14
Section 2.4.
Subsidiaries............................................ 15
Section 2.5. No Conflict;
Consents................................... 16
Section 2.6. Financial
Statements.................................... 16
Section 2.7. Ordinary Course Operations; Absence of Certain
Changes.. 18
Section 2.8.
Litigation.............................................. 20
Section 2.9.
Taxes................................................... 20
Section 2.10. Employee Benefit
Plans.................................. 21
Section 2.11. Real and Personal
Property.............................. 23
Section 2.12. Labor and Employment
Matters............................ 24
Section 2.13. Contracts and
Commitments............................... 25
Section 2.14. Intellectual
Property................................... 27
Section 2.15. Environmental
Matters................................... 31
Section 2.16.
Brokers................................................. 32
Section 2.17.
Insurance............................................... 32
Section 2.18. Compliance with
Laws.................................... 32
Section 2.19. Licenses and
Permits.................................... 32
Section 2.20. Affiliate
Transactions.................................. 33
Section 2.21. Customers;
Suppliers.................................... 33
Section 2.22. Disclaimer of Other Representations and
Warranties;
Knowledge; Full Disclosure.............................. 33
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF
BUYER.................... 34
Section 3.1. Existence; Good Standing;
Authority..................... 34
Section 3.2. No
Conflict............................................. 35
Section 3.3. Consents and
Approvals.................................. 35
Section 3.4.
Financing............................................... 35
Section 3.5.
Litigation.............................................. 35
Section 3.6.
Brokers................................................. 35
Section 3.7. Investment
Intent....................................... 35
Section 3.8. Inspection; No Other
Representations.................... 36
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ARTICLE IV - CERTAIN
AGREEMENTS.......................................... 36
Section 4.1. Conduct of Business Prior to
Closing.................... 36
Section 4.2. Access to
Information................................... 38
Section 4.3.
Confidentiality......................................... 39
Section 4.4. Efforts; Regulatory and Other Authorizations;
Consents.. 39
Section 4.5. Further
Action.......................................... 41
Section 4.6. Press
Releases.......................................... 41
Section 4.7. No
Solicitation......................................... 42
Section 4.8. Certain
Updates......................................... 42
Section 4.9. Notices of Certain
Events............................... 42
Section 4.10. Conveyance
Taxes........................................ 43
Section 4.11. Payoff Letters and
Invoices............................. 44
Section 4.12. Books and
Records....................................... 44
Section 4.13. Audited Closing Financial
Statements.................... 44
Section 4.14. Payment of 2007 Staff
Bonuses........................... 45
Section 4.15. Tax
Matters............................................. 45
Section 4.16. Estoppel
Certificates................................... 47
Section 4.17. Benefit Plan
Matters.................................... 47
Section 4.18.
Insurance............................................... 48
Section 4.19.
WTW/Pinnacle............................................ 48
ARTICLE V - CONDITIONS TO
CLOSING........................................ 48
Section 5.1. Conditions to Obligations of
Seller..................... 48
Section 5.2. Conditions to Obligations of
Buyer...................... 49
ARTICLE VI - SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
ESCROW;
INDEMNIFICATION.............................................
52
Section 6.1.
Survival................................................ 52
Section 6.2. Escrow
Amount........................................... 52
Section 6.3. Indemnification by
Seller............................... 52
Section 6.4. Indemnification by
Buyer................................ 56
Section 6.5. Treatment of Indemnity
Payments......................... 59
Section 6.6. No
Contribution......................................... 59
Section 6.7. Remedies
Exclusive...................................... 59
Section 6.8. Calculation of
Losses................................... 59
ARTICLE VII -
TERMINATION................................................ 59
Section 7.1.
Termination............................................. 59
Section 7.2. Effect of
Termination................................... 60
ARTICLE VIII - GENERAL
PROVISIONS........................................ 60
Section 8.1.
Notices................................................. 60
Section 8.2. Disclosure
Schedules.................................... 61
Section 8.3. Entire
Agreement........................................ 62
Section 8.4. Amendment;
Waivers...................................... 62
Section 8.5.
Assignment.............................................. 62
Section 8.6. No Agreement Until
Executed............................. 62
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Section 8.7.
Interpretation.......................................... 62
Section 8.8. Fees and
Expenses....................................... 63
Section 8.9. Governing
Law........................................... 63
Section 8.10. Consent to Jurisdiction; WAIVER OF JURY
TRIAL........... 63
Section 8.11. Mutual
Drafting......................................... 63
Section 8.12.
Miscellaneous........................................... 64
Section 8.13.
Severability............................................ 64
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Exhibits
Exhibit A - Form of Escrow Agreement
Exhibit B - Form of Latham & Watkins LLP Legal Opinion
Exhibit C - Form of Barbookles Consulting Agreement
Exhibit D - Form of Key Employee Employment Agreement
Exhibit E - Form of General Release
Exhibit F - Form of Seller Noncompetition Agreement
Exhibit G - Form of VC Noncompetition Agreement
Exhibit H - Form of Goodwin Procter LLP Legal Opinion
Exhibit I - Form of Estoppel Certificate
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of
November
13, 2007, by and between Nova Holdings, LLC, a limited liability
company
organized under the laws of the State of Delaware ("Seller"),
and IDEX
Corporation, a corporation organized under the laws of the State
of Delaware
("Buyer"). Certain terms used in this Agreement are defined in
Section 1.1
hereof.
WHEREAS, Seller owns beneficially and of record all the issued
and
outstanding capital stock (the "Subject Shares") of Nova
Technologies
Corporation, a corporation organized under the laws of the State
of Delaware
(the "Company"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to
purchase
from Seller, all of the Subject Shares, free and clear of all
Encumbrances
(other than Permitted Encumbrances and restrictions under
applicable securities
laws), on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements and
covenants
herein contained, and for other good and valuable consideration,
the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto, intending to
be legally bound, agree as follows:
ARTICLE I - PURCHASE AND SALE OF THE SUBJECT SHARES; CLOSING
SECTION 1.1. CERTAIN DEFINITIONS. For purposes of this
Agreement:
(a) "2007 Staff Bonuses" has the meaning set forth in Section
4.1(i).
(b) "Acquisition Proposal" means, other than the
transactions
contemplated by this Agreement, any offer, proposal or inquiry
relating to, or
any Person's indication of interest in, (i) the sale, license,
disposition or
acquisition of all or a material portion of the business or
assets of the
Company or any of its Subsidiaries (other than sales of
inventory in the
ordinary course of business), (ii) the issuance, disposition or
acquisition of
(a) any capital stock or other equity security of the Company or
any of its
Subsidiaries, (b) any subscription, option, call, warrant,
preemptive right,
right of first refusal or any other right (whether or not
exercisable) to
acquire any capital stock or other equity security of the
Company or any of its
Subsidiaries, or (c) any security, instrument or obligation that
is or may
become convertible into or exchangeable for any capital stock or
other equity
security of the Company or any of its Subsidiaries, or (iii) any
merger,
consolidation, business combination, reorganization or similar
transaction
involving the Company or any of its Subsidiaries.
(c) "Affiliate" means, with respect to any Person, another
Person that
directly or indirectly, through one or more intermediaries,
controls, is
controlled by, or is under common control with, such first
Person. For purposes
of this Agreement, "control" means the possession, directly or
indirectly, of
the power to direct, or cause the direction of, the management
and policies of a
Person, whether through ownership of voting securities, Contract
or otherwise.
(d) "Agreement" has the meaning set forth in the preamble.
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(e) "Analytics" has the meaning set forth in Section
4.17(a).
(f) "Audited Closing Financial Statements" has the meaning set
forth
in Section 4.13.
(g) "Base Balance Sheet" has the meaning set forth in Section
2.6(b).
(h) "Base Working Capital" means $19,440,000.
(i) "Benefit Plans" has the meaning set forth in Section
2.10(a).
(j) "Business Day" means any day other than Saturday, Sunday or
a day
on which banks in Boston, Massachusetts or Chicago, Illinois are
required to be
closed.
(k) "Buyer" has the meaning set forth in the preamble.
(l) "Buyer Claim" has the meaning set forth in Section
6.3(d).
(m) "Buyer Closing Certificate" has the meaning set forth in
Section
5.1(g).
(n) "Buyer Indemnified Parties" mean: (i) Buyer; (ii) Buyer's
current
and future Affiliates (including the Company and its
Subsidiaries); (iii) the
respective Representatives of the Persons referred to in clauses
"(i)" and
"(ii)" above; and (iv) the respective heirs, representatives,
successors and
assigns of the Persons referred to in clauses "(i)," "(ii)" and
"(iii)" above.
(o) "Cash" means (i) the cash held in deposit accounts,
including
money market accounts (plus an amount equal to the aggregate sum
of any uncashed
checks or EFT transfers to be deposited in such deposit accounts
and less an
amount equal to the aggregate sum of any outstanding uncashed
checks or EFT
transfers drawn on all such deposit accounts), of the Company
and its
Subsidiaries, (ii) cash equivalents (including marketable
securities) held by
the Company and its Subsidiaries, and (iii) any "restricted"
cash or cash
deposits held by third parties in support of obligations
comprising Indebtedness
for purposes of this Agreement.
(p) "Chosen Courts" has the meaning set forth in Section
8.10.
(q) "Closing" means the consummation of the purchase and sale of
the
Subject Shares as provided in Section 1.4 below.
(r) "Closing Cash" means Cash as of the close of business on the
day
immediately preceding the Closing Date.
(s) "Closing Date" has the meaning set forth in Section 1.4.
(t) "Closing Date Schedule" has the meaning set forth in
Section
1.6(b).
(u) "Closing Indebtedness" means Indebtedness as of the close
of
business on the day immediately preceding the Closing Date.
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(v) "Closing Net Working Capital" means the Net Working Capital
as of
the close of business on the day immediately preceding the
Closing Date.
(w) "COBRA" means the provisions of Part 6 of Subtitle B of
Title I of
ERISA and Section 4980B of the Code and all regulations
thereunder.
(x) "Code" means the Internal Revenue Code of 1986, as
amended.
(y) "Company" has the meaning set forth in the preamble.
(z) "Company Charter" has the meaning set forth in Section
2.2(b).
(aa) "Company By-laws" has the meaning set forth in Section
2.2(b).
(bb) "Company Intellectual Property" has the meaning set forth
in
Section 2.14(b).
(cc) "Company Licensed Intellectual Property" has the meaning
set
forth in Section 2.14(b).
(dd) "Company Owned Intellectual Property" has the meaning set
forth
in Section 2.14(a).
(ee) "Company Registered Intellectual Property" has the meaning
set
forth in Section 2.14(a).
(ff) "Company Transaction Expenses" means: (i) the legal fees
and
disbursements payable to legal counsel and accountants of the
Company or any of
its Subsidiaries that are incurred by the Company or any of its
Subsidiaries
prior to the Closing and that are payable by the Company or its
Subsidiaries in
connection with the negotiation, preparation or execution of
this Agreement or
the performance or consummation of the transactions contemplated
by this
Agreement; (ii) any bonuses or severance payments to be paid to
any director,
officer or employee of the Company or any of its Subsidiaries in
connection with
the transactions contemplated by this Agreement (excluding the
2007 Staff
Bonuses) and any payroll taxes incurred by the Company or any of
its
Subsidiaries in connection therewith; and (iii) all other
miscellaneous expenses
or costs, in each case, incurred by the Company or any of its
Subsidiaries prior
to the Closing and that are payable by the Company or any of its
Subsidiaries in
connection with the negotiation, preparation or execution of
this Agreement or
the performance or consummation of the transactions contemplated
by this
Agreement but in each case only to the extent they have not been
paid by the
Company in Cash on or prior to the close of business on the day
immediately
preceding the Closing Date.
(gg) "Condor" means Condor Solutions, Inc., an Alabama
corporation.
(hh) "Condor Agreements" means the Agreement for the Purchase
of
Assets and Development Obligations by and among Condor, Alan
Petroff and ADS
LLC, dated as of October 31, 2007, the Bill of Sale, Assignment
and Assumption
by and among Condor, Alan Petroff and ADS LLC, dated as of
October 31, 2007, the
Assignment Agreement executed by
3
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Condor as of October 31, 2007, and the Consultant and
Intellectual Property
Agreement by and among Condor, Alan Petroff and ADS LLC, dated
as of October 31,
2007, each in the form delivered to Buyer on the date of this
Agreement.
(ii) "Confidentiality Agreement" has the meaning set forth in
Section
4.3.
(jj) "Consent" means any approval, consent, ratification,
permission,
waiver or authorization (including any Governmental
Authorization).
(kk) "Contract" means any contract, agreement, indenture, note,
bond,
loan, license, instrument, lease, commitment, plan or other
binding arrangement,
whether oral or written.
(ll) "Creditor" means any Person to whom Indebtedness is
owed.
(mm) "Current Assets" means the aggregate dollar amount of all
assets
properly characterized as current assets of the Company and its
Subsidiaries
under the Specified Accounting Principles.
(nn) "Current Liabilities" means the aggregate dollar amount of
all
liabilities properly characterized as current liabilities of the
Company and its
Subsidiaries under the Specified Accounting Principles.
(oo) "DOJ" has the meaning set forth in Section 4.4(b)(i).
(pp) "Dispute Notice" has the meaning set forth in Section
1.6(c).
(qq) "Encumbrances" has the meaning set forth in Section
1.5(b)(iii).
(rr) "Environmental Requirements" has the meaning set forth in
Section
2.15(a).
(ss) "ERISA" has the meaning set forth in Section 2.10(a).
(tt) "ERISA Affiliate" shall mean a trade or business, whether
or not
incorporated, which is deemed to be in common control or
affiliated with the
Company or any of its Subsidiaries within the meaning of Section
4001 of ERISA
or Sections 414(b), (c), (m), or (o) of the Code.
(uu) "Escrow Agent" has the meaning set forth in Section
1.5(b)(ii).
(vv) "Escrow Agreement" means the escrow agreement in the
form
attached hereto as Exhibit A.
(ww) "Escrow Amount" has the meaning set forth in Section
1.5(b)(ii).
(xx) "Estimated Closing Cash" has the meaning set forth in
Section
1.6(a).
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(yy) "Estimated Closing Net Working Capital" has the meaning set
forth
in Section 1.6(a).
(zz) "Estimated Overage" has the meaning set forth in Section
1.6(a).
(aaa) "Estimated Purchase Price" has the meaning set forth in
Section
1.3.
(bbb) "Estimated Underage" has the meaning set forth in
Section
1.6(a).
(ccc) "Exchange Act" means the Securities Exchange Act of 1934,
as
amended.
(ddd) "Expert Calculations" has the meaning set forth in
Section
1.6(d).
(eee) "Financial Statements" has the meaning set forth in
Section 2.6.
(fff) "FTC" has the meaning set forth in Section 4.4(b)(i).
(ggg) "GAAP" means generally accepted accounting principles as
applied
in the United States on a consistent basis.
(hhh) "Governmental Authority" has the meaning set forth in
Section
2.5(a).
(iii) "Governmental Authorization" means any approval,
certificate,
clearance, consent, license, permit, qualification, waiver or
other
authorization issued, granted, given or otherwise made available
by or under the
authority of any Governmental Authority or pursuant to any Legal
Requirement.
(jjj) "Hazardous Substances" has the meaning set forth in
Section
2.15(a).
(kkk) "HSR Act" has the meaning set forth in Section 2.5(b).
(lll) "Indebtedness" means the following liabilities and
obligations
of the Company and its Subsidiaries (without duplication): (a)
any indebtedness
(and any PIK, deferred or other interest and any prepayment
premiums with
respect thereto) for money borrowed, including that evidenced by
notes, bonds,
indentures, debentures or other instruments; (b) any outstanding
obligations
under capital leases and purchase money obligations; (c) any
amounts owed with
respect to drawn letters of credit; (d) any reimbursement
obligations, foreign
exchange contracts and arrangements designed to provide
protection against
fluctuations in interest or currency exchange rates, including
amounts payable
to unwind such contracts or arrangements (including termination
fees, prepayment
penalties, break fees and the like); (e) any outstanding
guarantees of
obligations of the type described in clauses "(a)" through "(d)"
above; and (f)
an additional $1,200,000.00 (representing the agreed-upon
portion of the
payments required to be made by the Company or its Subsidiaries
from and after
the date of this Agreement under the Condor Agreements to be
borne by Seller).
(mmm) "Intellectual Property" means (i) inventions, whether or
not
patentable, reduced to practice or made the subject of one or
more pending
patent applications, and all improvements thereto, (ii) national
and
multinational statutory invention registrations, patents
5
<PAGE>
and patent applications (including all renewals, reissues,
divisions,
substitutions, continuations, continuations-in-part, extensions
and
reexaminations thereof) registered or applied for in the United
States and all
other nations throughout the world; (iii) registered and
unregistered
trademarks, service marks, brand names, trade names, service
names, trade dress,
domain names, and corporate names (whether or not registered) in
the United
States and all other nations throughout the world, including all
variations,
derivations, combinations, registrations and applications for
registration or
renewals of the foregoing and all goodwill associated therewith;
(iv) copyrights
in both published and unpublished works and registrations and
applications for
registration or renewals thereof in the United States and all
other nations
throughout the world, including all derivative works, moral
rights, renewals,
extensions, reversions or restorations associated with such
copyrights, now or
hereafter provided by law, regardless of the medium of fixation
or means of
expression; (v) mask work rights and registrations and
applications for
registration or renewals thereof in the United States and all
other nations
throughout the world; (vi) designs, whether or not registered,
and any design
patents or design patent applications; (vii) trade secrets,
rights under
applicable trade secret laws, and, whether or not confidential,
business
information (including pricing and cost information, business
and marketing
plans and customer and supplier lists), technology and know-how
(including
manufacturing and production processes and techniques and
research and
development information); (viii) rights in databases and data
collections
(including knowledge databases, customer lists and customer
databases) in the
United States and all other nations throughout the world,
whether registered or
unregistered, and any applications for registration therefore;
(ix) computer
software (including source code, object code, firmware,
operating systems and
specifications); (x) all rights in all of the foregoing provided
by treaties,
conventions and common law, (xi) all rights to sue or recover
and retain damages
and costs and attorneys' fees for past, present and future
infringement or
misappropriation of any of the foregoing, and (xii) any other
proprietary or
intellectual property rights now known or hereafter recognized
in any
jurisdiction.
(nnn) "Invoice" has the meaning set forth in Section 4.11.
(ooo) "IRS" has the meaning set forth in Section 2.9(c).
(ppp) "Key Employee" has the meaning set forth in Section
5.2(i)(iii).
(qqq) "Leased Real Property" has the meaning set forth in
Section
2.11(b).
(rrr) "Leases" has the meaning set forth in Section 2.11(b).
(sss) "Legal Proceeding" means any action, suit, litigation,
arbitration, proceeding (including any civil, criminal,
administrative,
investigative or appellate proceeding), hearing, inquiry, audit,
examination or
investigation commenced, brought, conducted or heard by or
before, or otherwise
involving, any court or other Governmental Authority.
(ttt) "Legal Requirement" means any federal, state, local,
municipal,
foreign or other law, constitution, treaty, convention,
ordinance, code, rule,
regulation, order, injunction, judgment, decree, ruling or other
similar
requirement enacted, adopted, promulgated or applied by a
Governmental
Authority, as amended unless expressly specified otherwise.
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(uuu) "Losses" of a Person means any and all actual out of
pocket
losses, liabilities, damages, injury, claims, settlements,
awards, fines,
penalties, judgments, costs (including costs incurred in
connection with any
Legal Proceeding including for the purpose of enforcing this
Agreement, and any
interest paid) and expenses (including the reasonable fees and
expenses of
advisors and experts, including attorneys) of any nature
actually suffered or
incurred by such Person and which such Person is entitled to
recover under
applicable Legal Requirements.
(vvv) "Material Adverse Effect" means any change, event,
effect,
condition, circumstance, state of facts or development that (a)
has had or would
reasonably be expected to have a material adverse effect on the
business,
properties, assets, condition (financial or otherwise),
liabilities or results
of operations of the Company and its Subsidiaries, taken as a
whole, or (b) has
prevented or materially delayed (or would reasonably be expected
to prevent or
materially delay) the ability of Seller to consummate the sale
of the Subject
Shares, as contemplated by this Agreement; provided, however,
that none of the
following constitute, in and of themselves, a Material Adverse
Effect: (i) any
change, event, effect, condition, circumstance, state of facts
or development
that is the result of factors generally affecting the industries
or markets in
which the Company or any of its Subsidiaries participates; (ii)
any adverse
change, effect or circumstance arising solely out of or
resulting solely from
the announcement or pendency of the transactions contemplated by
this Agreement,
including actions of competitors or any delays or cancellations
for services or
losses of employees, vendors or customers; (iii) any change in
Legal
Requirements or GAAP or the interpretation thereof by any
applicable standards
body; (iv) any Company Transaction Expenses; (v) any action
taken at the request
of Buyer (other than pursuant to a waiver of a covenant herein);
(vi) any
failure of the Company to meet any projection or forecast prior
to the Closing
(it being understood that this clause "(vi)" shall not preclude
the underlying
cause of any such failure to meet projections or forecasts from
being taken into
account in determining whether there has been a Material Adverse
Effect); and
(vii) any change, event, effect, condition, circumstance, state
of facts or
development that affects the U.S. economy or any foreign
economies where the
Company and its Subsidiaries have material operations or sales
or that result
from natural disasters, acts of war or terrorism (but, with
respect to each of
clauses "(i)," "(iii)" and "(vii)," only if any such changes,
events, effects,
conditions, circumstances, states of facts or developments do
not, individually
or in the aggregate, have a materially disproportionate adverse
impact on the
Company or any of its Subsidiaries relative to other Persons in
similar
industries or markets).
(www) "Material Contract" has the meaning set forth in Section
2.13.
(xxx) "Matter" has meaning set forth in Section 4.8.
(yyy) "Maximum Amount" has the meaning set forth in Section
6.3(b)(ii).
(zzz) "Net Working Capital" means Current Assets minus
Current
Liabilities.
(aaaa) "Neutral Auditor" has the meaning set forth in Section
1.6(d).
(bbbb) "Outside Date" has the meaning set forth in Section
7.1(f).
(cccc) "Payoff Letter" has the meaning set forth in Section
4.11.
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(dddd) "Pension Plan" has the meaning set forth in Section
2.10(e).
(eeee) "Permitted Encumbrances" means (i) liens for Taxes or
other
governmental charges, assessments or levies that are not
delinquent or are being
disputed in good faith, (ii) landlord's, mechanic's, carrier's,
workmen's,
repairmen's or other similar liens arising or incurred in the
ordinary course of
business that do not materially detract from the value of the
property
encumbered thereby, but solely to the extent there exists an
accrual therefore
on the Base Balance Sheet or, if incurred after the date of the
Base Balance
Sheet, there exists an accrual therefore in the determination of
Current
Liabilities in connection with the final resolution of Closing
Net Working
Capital pursuant to Section 1.6 hereof, and (iii) with respect
to real property
only, minor imperfections of title, conditions, easements and
reservations of
rights, including easements and reservations of, or rights of
others for, rights
of way, sewers, electric lines, telegraph and telephone lines
and other similar
purposes, encroachments, covenants and restrictions.
Notwithstanding the
foregoing, any lien for Indebtedness as of the Closing will not
be deemed to be
a Permitted Encumbrance.
(ffff) "Person" means an individual, corporation, partnership,
limited
liability company, joint venture, association, trust,
unincorporated
organization or other entity or group (as defined in Section
13(d) of the
Exchange Act).
(gggg) "Pre-Closing Period" has the meaning set forth in Section
4.1.
(hhhh) "Pre-Closing Tax Period" has the meaning set forth in
Section
6.3(a).
(iiii) "Prohibited Transaction" shall have the meaning set forth
in
ERISA Section 406 and Code Section 4975.
(jjjj) "Purchase Price" has the meaning set forth in Section
1.2.
(kkkk) "Related Person" has the meaning set forth in Section
2.20.
(llll) "Representatives" means a Person's officers,
directors,
employees, agents, attorneys, accountants, advisors and other
authorized
representatives.
(mmmm) "Review Period" has the meaning set forth in Section
1.6(c).
(nnnn) "Securities Act" means the Securities Act of 1933, as
amended,
and the rules and regulations promulgated thereunder.
(oooo) "Seller" has the meaning set forth in the preamble.
(pppp) "Seller Certificate" has the meaning set forth in
Section
2.2(a).
(qqqq) "Seller Claim" has the meaning set forth in Section
6.4(d).
(rrrr) "Seller Closing Certificate" has the meaning set forth
in
Section 5.2(i)(x).
8
<PAGE>
(ssss) "Seller Indemnified Parties" mean: (i) Seller; (ii)
Seller's
current and future Affiliates (but excluding the Company and its
Subsidiaries);
(iii) the respective Representatives of the Persons referred to
in clauses "(i)"
and "(ii)" above; and (iv) the respective successors and assigns
of the Persons
referred to in clauses "(i)," "(ii)" and "(iii)" above.
(tttt) "Seller Licenses" has the meaning set forth in Section
2.19.
(uuuu) "Seller LLC Agreement" has the meaning set forth in
Section
2.2(a).
(vvvv) "Senior Management Employee" has the meaning set forth
in
Section 2.7(a).
(wwww) "Specified Accounting Principles" has the meaning set
forth in
Section 1.6(a).
(xxxx) "Straddle Period" has the meaning set forth in Section
6.3(a).
(yyyy) "Subject Shares" has the meaning set forth in the
preamble.
(zzzz) "Subsidiary" means any corporation at least fifty percent
(50%)
of whose outstanding voting securities, or any partnership,
joint venture or
other entity at least fifty percent (50%) of whose total equity
interest, is
directly or indirectly owned by the Company.
(aaaaa) "Tax" or "Taxes" means all taxes, duties, or similar
governmental charges, levies, imposts, withholdings or charges
(including net
income, gross income, gross receipts, sales, use, ad valorem,
transfer,
franchise, profits, license, lease, service, service use,
withholding, payroll,
employment, excise, severance, stamp, occupation, premium,
property, windfall
profits, customs, duties or other taxes, duties, charges,
levies, imposts
withholdings or charges of any kind whatsoever) whenever and by
whatever
Governmental Authority imposed, whether or not any such taxes,
duties, charges,
levies, imposts or withholdings are directly or primarily
chargeable against or
to the Company or any of its Subsidiaries, together with in any
such case any
interest, fines, penalties, surcharges and charges incidental or
relating to the
imposing of any of such Taxes and any additions to tax or
additional amounts
with respect thereto.
(bbbbb) "Tax Returns" shall mean any report, return, document or
other
filing required to be supplied to any taxing authority or
jurisdiction (foreign
or domestic) with respect to Taxes.
(ccccc) "Threshold Amount" has the meaning set forth in
Section
6.3(b)(i).
(ddddd) "Update" has the meaning set forth in Section 4.8.
(eeeee) "WTW/Pinnacle Current Assets" has the meaning set forth
in
Section 4.19.
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<PAGE>
(fffff) "WTW/Pinnacle Current Liabilities" has the meaning set
forth
in Section 4.19.
SECTION 1.2. PURCHASE AND SALE OF THE SUBJECT SHARES. Subject to
the terms and
conditions set forth in this Agreement and in reliance on the
representations
and warranties contained herein, at the Closing, Seller agrees
to sell to Buyer,
and Buyer agrees to purchase from Seller, all of the Subject
Shares, free and
clear of all Encumbrances (other than Permitted Encumbrances and
restrictions
under applicable securities laws), for the Estimated Purchase
Price set forth in
Section 1.3, as adjusted pursuant to Section 1.6 (such purchase
price, as
finally adjusted pursuant to Section 1.6, the "Purchase
Price").
SECTION 1.3. PURCHASE PRICE. The aggregate purchase price to be
paid at the
Closing for the Subject Shares shall be an amount equal to (i)
One Hundred Fifty
Eight Million Five Hundred Thousand Dollars ($158,500,000.00),
plus (ii)
Estimated Closing Cash, minus (iii) Closing Indebtedness, minus
(iv) the Company
Transaction Expenses, and plus or minus, as applicable, (v) the
Estimated
Overage or Estimated Underage, respectively (the sum of the
amounts described in
clauses "(i)" through "(v)," the "Estimated Purchase
Price").
SECTION 1.4. CLOSING. The Closing shall be held at the offices
of Goodwin
Procter LLP, Exchange Place, Boston, Massachusetts, at, and
shall be deemed to
be effective as of, 8:00 a.m. local time on a date to be
specified by the
parties, which shall be no later than five (5) Business Days
following the
satisfaction or waiver of the last of the conditions set forth
in Article V to
be satisfied or waived (other than those conditions that by
their nature are to
be satisfied at the Closing), or at such other time or such
other place as Buyer
and Seller may mutually determine. The date of the Closing is
referred to herein
as the "Closing Date."
SECTION 1.5. CERTAIN PAYMENTS AND DELIVERABLES AT CLOSING.
(a) At the Closing, Seller will deliver or cause to be delivered
to
Buyer or its Representatives stock certificate(s) evidencing all
of the Subject
Shares, in each case duly endorsed in blank or accompanied by
stock powers duly
executed in blank.
(b) At the Closing, Buyer shall:
(i) deliver to Seller the Estimated Purchase Price (less the
Escrow Amount) via wire transfer of immediately available funds
to the
account or accounts specified in writing by Seller to Buyer no
later
than three (3) Business Days prior to the Closing Date;
(ii) deposit with Wells Fargo Bank, N.A. (the "Escrow
Agent"), as the escrow agent under the Escrow Agreement,
$12,500,000
of the Estimated Purchase Price (the "Escrow Amount"), by
wire
transfer of immediately available funds to the account or
accounts
previously specified in writing by the Escrow Agent, such amount
to be
held by the Escrow Agent in accordance with the terms of the
Escrow
Agreement;
(iii) pay to each Creditor, an amount equal to such
Creditor's respective portion of the Closing Indebtedness in
full
satisfaction thereof and as
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necessary to cause the release, in connection with such
repayment, of
any security interest, mortgage, pledge, lien, conditional
sale
agreement, security title, right of first refusal, right of
first
offer, preemptive right or other encumbrance, restriction or
charge of
any nature (collectively, "Encumbrances") securing such
Indebtedness
as set forth in such Creditor's Payoff Letter; and
(iv) pay to each Person to whom the Company or any of its
Subsidiaries owes a Company Transaction Expense the amount of
such
Company Transaction Expense as set forth in such Person's
Invoice.
SECTION 1.6. ADJUSTMENTS TO ESTIMATED PURCHASE PRICE.
(a) No later than three (3) Business Days prior to the Closing
Date,
for purposes of determining the Estimated Purchase Price, Seller
shall deliver
to Buyer Seller's good-faith estimates of Closing Cash
("Estimated Closing
Cash") and Closing Net Working Capital ("Estimated Closing Net
Working
Capital"), such estimates to be (i) subject to the approval of
Buyer, such
approval not to be unreasonably withheld, conditioned or
delayed, and (ii) based
on the Company's books and records and other information then
available and
prepared in accordance with the accounting principles, policies,
methodologies
and procedures set forth on Schedule 1.6(a) attached hereto (the
"Specified
Accounting Principles"). Seller shall deliver to Buyer all
reasonably requested
relevant backup materials, in detail reasonably requested by
Buyer, together
with a certification, signed on behalf of Seller by its Chief
Executive Officer
and confirming that such estimates have been prepared in good
faith in
accordance with the Specified Accounting Principles,
concurrently with the
delivery of such estimates. As provided in Section 1.3 hereof,
the Estimated
Purchase Price shall be adjusted, dollar for dollar, up or down,
as appropriate,
to the extent that the Estimated Closing Net Working Capital
either (I) exceeds
the Base Net Working Capital (such excess the "Estimated
Overage") or (II) is
less than the Base Net Working Capital (such shortfall, the
"Estimated
Underage"), as applicable.
(b) No later than thirty (30) days following the delivery of
the
Audited Closing Financial Statements to Buyer as provided in
Section 4.12
hereof, Buyer shall cause to be prepared in accordance with the
Specified
Accounting Principles a statement (the "Closing Date Schedule")
setting forth in
reasonable detail Buyer's calculation of Closing Cash and
Closing Net Working
Capital, and shall deliver the Closing Date Schedule to Seller.
Buyer shall
deliver to Seller all reasonably requested relevant backup
materials, in detail
reasonably requested by Seller, together with a certification,
signed on behalf
of Buyer by its Controller and confirming that such Closing Date
Schedule has
been prepared in good faith in accordance with the Specified
Accounting
Principles, concurrently with the delivery of such schedule.
(c) If Seller disputes the calculation of any component of
Closing
Cash or Closing Net Working Capital set forth in the Closing
Date Schedule, then
Seller may deliver a written notice (a "Dispute Notice") to
Buyer at any time
during the twenty (20) day period commencing upon receipt by
Seller of the
Closing Date Schedule (the "Review Period"). The Dispute Notice
shall set forth
in reasonable detail the basis for any dispute as well as
Seller's calculation
of the disputed component, which shall be done in good faith in
accordance with
the Specified Accounting Principles. If Seller does not deliver
a Dispute Notice
prior to the
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<PAGE>
expiration of the Review Period, then Buyer's determination of
Closing Cash and
Closing Net Working Capital set forth in the Closing Date
Schedule shall be
deemed final and binding on Seller and Buyer for all purposes of
this Agreement.
(d) If Seller delivers a Dispute Notice to Buyer prior to
the
expiration of the Review Period, then Seller and Buyer shall use
commercially
reasonable efforts to reach agreement on each component of
Closing Cash and
Closing Net Working Capital that is in dispute. If Seller and
Buyer are unable
to reach agreement on the final resolution of each component of
Closing Cash and
Closing Net Working Capital that is in dispute within thirty
(30) days after the
end of the Review Period, then either party shall have the right
to refer such
dispute to Ernst & Young LLP to resolve such dispute (the
"Neutral Auditor"). In
connection with the resolution of any such dispute by the
Neutral Auditor: (i)
each of Seller and Buyer shall have a reasonable opportunity to
meet with the
Neutral Auditor to provide their views as to any issues with
respect to the
calculation of any of Closing Cash and Closing Net Working
Capital that are
unresolved from the Dispute Notice; (ii) the Neutral Auditor
shall determine
Closing Cash and Closing Net Working Capital in accordance with
the Specified
Accounting Principles within thirty (30) days of such referral,
and upon
reaching such determination shall deliver a copy of its
calculations (the
"Expert Calculations") to Seller and Buyer; and (iii) Closing
Cash and Closing
Net Working Capital, as determined by the Neutral Auditor shall,
absent fraud or
manifest error, be binding upon the parties. In performing the
Expert
Calculations, the Neutral Auditor (i) shall be limited to
addressing any
particular disputes referred to in the Dispute Notice and (ii)
such calculation
shall, with respect to any disputed item, be no greater than the
higher amount
calculated by Seller or Buyer, and no less than the lower amount
calculated by
Seller or Buyer, as the case may be. The Expert Calculations
shall reflect in
detail the differences, if any, between Closing Cash and Closing
Net Working
Capital reflected therein and Closing Cash and Closing Net
Working Capital set
forth in the Closing Date Schedule. If such a review is
conducted, then the
party (i.e., Buyer, on the one hand, or Seller, on the other
hand) whose last
proposed offer for the settlement of the items in dispute, taken
as a whole, was
farther away from the final determination by the Neutral Auditor
pursuant to
this Section 1.6(d), shall pay all fees and expenses associated
with such
review.
(e) No later than three (3) Business Days following the
final
determination of Closing Cash and Closing Net Working Capital
pursuant to
Section 1.6(c) and (d):
(i) if the sum of Closing Cash and Closing Net Working
Capital, as finally determined pursuant to Section 1.6(c) and
Section
1.6(d), exceeds the sum of Estimated Closing Cash and
Estimated
Closing Net Working Capital, then Buyer shall pay the amount of
such
excess to Seller; and
(ii) if the sum of Closing Cash and Closing Net Working
Capital, as finally determined pursuant to Section 1.6(c) and
Section
1.6(d), is less than the sum of Estimated Closing Cash and
Estimated
Closing Net Working Capital, then the parties will cause an
amount
equal to such shortfall to be released to Buyer from the
Escrow
Amount, in accordance with the terms of the Escrow
Agreement.
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<PAGE>
All payments described in this Section 1.6(e) shall be made by
wire transfer of
immediately available funds to the account or accounts
previously specified in
writing by the recipient party.
SECTION 1.7 TREATMENT OF ESCROW AMOUNT. Buyer, the Company, and
Seller agree for
all tax purposes that: (i) the right of Seller to the Escrow
Amount shall be
treated as deferred contingent purchase price eligible for
installment sale
treatment under Section 453 of the Code and any corresponding
provision of
foreign, state or local law, as appropriate; (ii) if and to the
extent any
amount of the Escrow Amount is actually distributed to Seller,
interest may be
imputed on such amount, as required by Section 483 or 1274 of
the Code; (iii)
Buyer shall be treated as the owner of the Escrow Amount, and
all interest and
earnings earned from the investment and reinvestment of the
Escrow Amount, or
any portion thereof, shall be allocable to Buyer pursuant to
Section 468B(g) of
the Code; and (iv) in no event shall the total amount of the
Escrow Amount and
any interest and earnings earned thereon paid to Seller under
this Agreement
exceed an amount to be designated by Seller prior to the
Closing. Clause (iv) of
the immediately preceding sentence is intended to ensure that
the right of
Seller to the Escrow Amount and any interest and earnings earned
thereon is not
treated as a contingent payment without a stated maximum selling
price under
Section 453 of the Code and the Treasury Regulations promulgated
thereunder.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes to Buyer the representations and warranties
contained
in this Article II.
SECTION 2.1. THE SUBJECT SHARES. Seller owns of record and
beneficially all of
the Subject Shares. The Subject Shares are, and when delivered
by Seller to
Buyer pursuant to this Agreement will be, free and clear of any
and all
Encumbrances (other than Permitted Encumbrances and restrictions
under
applicable securities laws).
SECTION 2.2. EXISTENCE; GOOD STANDING; AUTHORITY.
(a) Seller is a limited liability company duly organized,
validly
existing and in good standing under the laws of the State of
Delaware. Seller
has all requisite limited liability company power and authority
to own, operate,
and lease its properties and carry on its business as currently
conducted. The
copies of Seller's Certificate of Formation (the "Seller
Certificate") and
Limited Liability Company Agreement, including Seller's by-laws
(the "Seller LLC
Agreement"), each as amended to date and made available to Buyer
or its
Representatives, are accurate and complete, and no amendments
thereto are
pending. Seller has the limited liability company power and
authority to execute
and deliver this Agreement and each agreement, document and
instrument to be
executed and delivered by or on behalf of Seller pursuant to
this Agreement and
to carry out the transactions contemplated hereby and thereby.
The execution and
delivery of this Agreement, the performance by Seller of its
obligations
hereunder and the consummation of the transactions contemplated
hereby have been
duly authorized by all requisite action on the part of Seller
and its
equityholders. This Agreement has been duly executed and
delivered by Seller
and, assuming the due authorization, execution and delivery of
this Agreement by
Buyer, this Agreement constitutes a legal, valid and binding
obligation of
13
<PAGE>
Seller, enforceable against Seller in accordance with its terms,
except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization,
moratorium or similar laws affecting creditors' rights generally
and by general
equitable principles (regardless of whether enforcement is
sought in a
proceeding at law or in equity).
(b) The Company is a corporation duly incorporated, validly
existing
and in good standing under the laws of the State of Delaware.
The Company has
all requisite corporate power and authority to own, operate,
lease its
properties and carry on its business as currently conducted. The
Company is duly
licensed or qualified to do business as a foreign corporation
under the laws of
each jurisdiction in which the character of its properties, or
in which the
transaction of its business, makes such qualification necessary,
except where
the failure to be so licensed or qualified has not had and would
not reasonably
be expected to have, individually or in the aggregate, a
material adverse effect
on the ability of the Company to own, operate, lease its
properties and carry on
its business as currently conducted. The copies of the Company's
Certificate of
Incorporation (the "Company Charter") and by-laws (the "Company
By-laws"), each
as amended to date and made available to Buyer or its
Representatives, are
accurate and complete, and no amendments thereto are pending.
Seller has made
available to Buyer accurate and complete copies of (i) the stock
records of the
Company, and (ii) the minutes and other records of the meetings
and other
proceedings (including any actions taken by written consent or
otherwise without
a meeting) of the stockholders of the Company, the Board of
Directors of the
Company and all committees thereof. There has not been any
material violation of
any of the provisions of the Company Charter or the Company
By-Laws, and the
Company has not taken any action that is inconsistent in any
material respect
with any resolution adopted by the Company's stockholders, the
Board of
Directors of the Company or any committee thereof.
SECTION 2.3. CAPITALIZATION. As of the date of this Agreement,
the authorized,
issued and outstanding capital stock of the Company is set forth
on Schedule
2.3. All of the issued and outstanding shares of capital stock
of the Company
are duly authorized, validly issued, fully paid and
nonassessable. As of the
date of this Agreement, there are no outstanding options,
warrants or other
rights of any kind to acquire any additional shares of capital
stock of the
Company or securities convertible into or exchangeable for, or
which otherwise
confer on the holder thereof any right to acquire, any such
additional shares,
nor is the Company committed to issue any such option, warrant,
right or
security. Except as set forth on Schedule 2.3, there are no
Contracts to which
the Company is a party with respect to the voting of any shares
of capital stock
of the Company or which restrict the transfer of any such
shares. All
outstanding shares of capital stock of the Company have been
issued and granted
in compliance with (i) all applicable securities laws and other
applicable Legal
Requirements, and (ii) all requirements set forth in any
applicable Contracts.
Except as set forth on Schedule 2.3, the Company has never
repurchased, redeemed
or otherwise reacquired any shares of its capital stock, and
there are no
outstanding contractual obligations of the Company to
repurchase, redeem or
otherwise acquire any shares of capital stock, other equity
interests or any
other securities of the Company. All securities so reacquired by
the Company
were reacquired in compliance with (i) the applicable provisions
of the DGCL and
all other applicable Legal Requirements, and (ii) all
requirements set forth in
applicable restricted stock purchase agreements and other
applicable Contracts.
Except as set forth on Schedule 2.3, the Company has not agreed
and is not
obligated to make any future investment in or capital
contribution to any
Person.
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<PAGE>
SECTION 2.4. SUBSIDIARIES.
(a) The Company's Subsidiaries and investments in other Persons
are
listed on Schedule 2.4(a). Except as set forth on Schedule
2.4(a), the Company
owns directly or indirectly each of the outstanding shares of
capital stock or
other equity interest of each of the Subsidiaries. Except as set
forth on
Schedule 2.4(a), neither the Company nor any Subsidiary owns
directly or
indirectly any interest or investment (whether equity or debt)
in any Person
(other than investments in short-term investment
securities).
(b) Each of the Subsidiaries is a corporation or limited
liability
company or similar foreign entity duly incorporated or
organized, validly
existing and in good standing under the laws of its jurisdiction
of
incorporation or organization and has all requisite corporate
power and
authority to own, operate, lease and encumber its properties and
carry on its
business as currently conducted. Each such Subsidiary is duly
licensed or
qualified to do business in each other jurisdiction in which the
character of
its properties or in which the transaction of its business makes
such
qualification necessary, except where the failure to be so
licensed or qualified
has not had and would not reasonably be expected to have,
individually or in the
aggregate, a material adverse effect on the ability of such
Subsidiary to own,
operate, lease its properties and carry on its business as
currently conducted.
The copies of the organizational documents of each such
Subsidiary, in each case
as amended to date and made available to Buyer or its
Representatives, are
complete and correct, and no amendments thereto are pending.
With respect to
each Subsidiary of the Company, Seller has made available to
Buyer accurate and
complete copies of (i) the equity records of such Subsidiary,
and (ii) the
minutes and other records of the meetings and other proceedings
(including any
actions taken by written consent or otherwise without a meeting)
of the
equityholders of such Subsidiary, the Board of Directors of such
Subsidiary (or
equivalent governing body) and all committees thereof, in each
case, to the
extent in the possession, custody or control of Seller, the
Company or its
Subsidiaries. There has not been any material violation of any
of the provisions
of such Subsidiary's organizational documents, and such
Subsidiary has not taken
any action that is inconsistent in any material respect with any
resolution
adopted by such Subsidiary's equityholders, the Board of
Directors of such
Subsidiary (or equivalent governing body) or any committee
thereof.
(c) As of the date of this Agreement, the authorized, issued
and
outstanding capital stock of each of the Company's Subsidiaries
is set forth on
Schedule 2.4(a). To the extent applicable, all of the issued and
outstanding
shares of capital stock or equivalent equity interests of each
such Subsidiary
are duly authorized, validly issued, fully paid and
nonassessable. As of the
date of this Agreement, there are no outstanding options,
warrants or other
rights of any kind to acquire any additional shares of capital
stock or
equivalent equity interests of any such Subsidiary or securities
convertible
into or exchangeable for, or which otherwise confer on the
holder thereof any
right to acquire, any such additional shares or equivalent
equity interests, nor
is any such Subsidiary committed to issue any such option,
warrant, right or
security. Except as set forth on Schedule 2.4(c), there are no
Contracts to
which any Subsidiary of the Company is a party with respect to
the voting of any
shares of capital stock or equivalent equity interests of any
such Subsidiary or
which restrict the transfer of any such shares. All outstanding
shares of
capital stock or equivalent equity interests of each Subsidiary
of the Company
have been issued and granted in compliance with (i) all
applicable securities
laws and other applicable Legal Requirements, and (ii) all
requirements set
forth in applicable
15
<PAGE>
Contracts. Except as set forth on Schedule 2.4(c), no Subsidiary
of the Company
has ever repurchased, redeemed or otherwise reacquired any
shares of its capital
stock or equivalent equity interests, and there are no
outstanding contractual
obligations of any such Subsidiary to repurchase, redeem or
otherwise acquire
any shares of capital stock, other equity interests or any other
securities of
any such Subsidiary. All securities so reacquired by any such
Subsidiary were
reacquired in compliance with (i) the applicable provisions of
the laws
governing the formation of such Subsidiary and all other
applicable Legal
Requirements, and (ii) all requirements set forth in applicable
restricted stock
purchase agreements and other applicable Contracts. Except as
set forth on
Schedule 2.4(c), no Subsidiary of the Company has agreed or is
obligated to make
any future investment in or capital contribution to any
Person.
SECTION 2.5. NO CONFLICT; CONSENTS.
(a) Except as set forth on Schedule 2.5(a), and assuming the
notices,
declarations, filings and Consents set forth in Schedule 2.5(b)
are made or
obtained, the execution and delivery by Seller of this Agreement
and the other
agreements, documents and instruments contemplated hereby, and
the consummation
by Seller of the transactions in accordance with the terms
hereof, do not (i)
violate, conflict with or result in a default (whether after the
giving of
notice, lapse of time or both), or give rise to a right of
termination,
acceleration or other change of any material right or obligation
or the loss of
any material benefit to which the Company or any of its
Subsidiaries is
entitled, under any Contract or Governmental Authorization to
which Seller, the
Company, or any of the Company's Subsidiaries is a party or by
which Seller, the
Company, or any of the Company's Subsidiaries or any of their
respective assets
are bound, (ii) conflict with or result in any violation of, any
provision of
the Seller Certificate, the Seller LLC Agreement, the Company
Charter, the
Company By-laws or the charter, by-laws or other organizational
documents of any
Subsidiary of the Company; (iii) violate in any material respect
or result in a
material violation of, or constitute a material default (whether
after the
giving of notice, lapse of time or both) under, any provision of
any Legal
Requirement, or any writ, order, judgment, injunction or decree
of, or any
restriction imposed by, any U.S. federal, provincial, state,
local or foreign
government, any governmental, regulatory or administrative
authority, agency,
bureau or commission or any court, tribunal or judicial or
arbitral body (a
"Governmental Authority") applicable to Seller, the Company, or
any of the
Company's Subsidiaries or the business or properties of the
Company or any of
its Subsidiaries; or (iv) result in the creation or imposition
of any
Encumbrance (other than Permitted Encumbrances) on any asset of
the Company or
any of its Subsidiaries.
(b) Except as set forth in Schedule 2.5(b), no notice to,
declaration
or filing with, or Consent of any Person is required by or with
respect to
Seller or any of its Subsidiaries in connection with the
execution and delivery
by Seller of this Agreement, and the consummation of the
transactions
contemplated hereby in accordance with the terms hereof, except
for the filing
of a pre-acquisition notification and report form by Seller
under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(the "HSR
Act"), and the expiration or termination of the applicable
waiting period
thereunder.
SECTION 2.6. FINANCIAL STATEMENTS. Seller has delivered to Buyer
or its
Representatives true and complete copies of the following
financial statements,
copies of which are attached hereto as Schedule 2.6(a)
(collectively, the
"Financial Statements"):
16
<PAGE>
(a) audited consolidated balance sheets of the Company and
its
Subsidiaries as of December 31, 2006, and consolidated
statements of operations,
stockholders' equity (deficit) and cash flows for the year then
ended;
(b) an unaudited consolidated balance sheet of the Company and
its
Subsidiaries as of October 26, 2007 (the "Base Balance Sheet");
and
(c) unaudited consolidated statements of operations, cash flows
and
stockholders' equity of the Company and its Subsidiaries for the
ten-month
period ended October 26, 2007.
The Financial Statements have been prepared in accordance with
the Company's
books and records of the Company and its Subsidiaries in
accordance with GAAP
consistently applied and, subject to the absence of footnotes
and normal and
recurring year-end audit adjustments that will not be,
individually or in the
aggregate, material in magnitude with respect to any unaudited
Financial
Statements, present fairly in all material respects the
consolidated financial
condition of the Company and its Subsidiaries and consolidated
results of the
operations of the Company and its Subsidiaries at and for the
periods presented.
Except as set forth in Schedule 2.6(c), the Company and each of
its Subsidiaries
have established and maintain a system of internal accounting
controls
sufficient to provide reasonable assurances (i) that
transactions, receipts and
expenditures of the Company and its Subsidiaries are being
executed and made
only in accordance with appropriate authorizations of management
and the Board
of Directors of the Company, or in the case of its Subsidiaries,
their
respective equivalent governing body, (ii) that transactions are
recorded as
necessary (A) to permit preparation of financial statements in
conformity with
GAAP and (B) to maintain accountability for assets, (iii)
regarding prevention
or timely detection of unauthorized acquisition, use or
disposition of the
assets of the Company and its Subsidiaries, (iv) that the amount
recorded for
assets on the books and records of the Company and its
Subsidiaries are compared
with the existing assets at reasonable intervals and appropriate
action is taken
with respect to any differences and (v) accounts, notes and
other receivables
and inventory are recorded accurately, and proper and adequate
procedures are
implemented to effect the collection thereof on a current and
timely basis.
Since December 31, 2006, there has been no material change in
any accounting
controls, policies, principles, methods or practices, including
any change with
respect to reserves (whether for bad debts, contingent
liabilities or
otherwise), of the Company or any of its Subsidiaries, other
than (i)
write-downs or write-offs in the value of assets as required by
GAAP, or (ii)
such adjustments as may be required by GAAP as a result of the
transactions
contemplated by this Agreement.
Neither the Company nor any of its Subsidiaries has any
liability or obligation
of any kind whatsoever, whether accrued, contingent, absolute,
determined,
determinable or otherwise, other than (i) liabilities or
obligations stated or
adequately reserved against on the Base Balance Sheet or the
notes thereto, (ii)
liabilities or obligations reflected on Schedule 2.6(a), (iii)
liabilities or
obligations that have been incurred by the Company or any of its
Subsidiaries
after the date of the Base Balance Sheet in the ordinary course
of business
consistent with past practices and that have not been incurred
as a result of
the breach of any Contract, the violation of any applicable
Legal Requirement or
the commission of any tort, (iv) executory portions of Contracts
to which
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<PAGE>
the Company or any of its Subsidiaries entered into in the
ordinary course of
business, and (v) other liabilities and obligations to the
extent included in
the calculation of the Purchase Price, as estimated pursuant to
Section 1.3 or
finally determined pursuant to Section 1.6.
SECTION 2.7. ORDINARY COURSE OPERATIONS; ABSENCE OF CERTAIN
CHANGES. Except as
set forth on Schedule 2.7, since December 31, 2006 through the
date of this
Agreement, the Company and its Subsidiaries have operated only
in the ordinary
course of business consistent with past practices and there has
not been any:
(a) (i) other than in compliance with applicable laws or in
the
ordinary course consistent with past practice, grant or increase
of any
severance or termination pay to any director, officer, or
employee with a
position of "senior manager" or above (each a "Senior Management
Employee") of
the Company or any of its Subsidiaries, (ii) payment of any
bonuses, or increase
in salaries, bonuses, commissions or other compensation or
benefits payable or
to become payable, by the Company or any of its Subsidiaries to
any of their
respective directors, officers, or Senior Management Employees,
except for
annual bonus awards and increases in salaries made in the
ordinary course of
business consistent with past practices, (iii) entry into any
employment,
deferred compensation or other agreement or offer (or any
material amendment of
any such existing agreement or offer) with any director,
officer, or Senior
Management Employee of the Company or any of its Subsidiaries,
or (iv)
establishment, adoption or amendment (except as required by
applicable Legal
Requirements) of any collective bargaining, bonus, commission,
profit-sharing,
thrift, pension, retirement, deferred compensation,
compensation, stock option,
restricted stock or other benefit plan or arrangement covering
any director,
officer, advisor, consultant or employee of the Company or any
of its
Subsidiaries;
(b) any Material Adverse Effect;
(c) incurrence, assumption or sufferance of Indebtedness or
other
liability of any third party in excess of $250,000 by the
Company or any of its
Subsidiaries other than in the ordinary course of business
consistent with past
practices;
(d) (i) entry into any Contract that limits or otherwise
restricts in
any material respect the Company or any of its Subsidiaries or
any successor
thereto or that would reasonably be expected to, after the
Closing Date, limit
or restrict in any material respect the Company, Buyer or any of
their
respective Affiliates, from engaging or competing in any line of
business, at
any location or with any Person (other than the entry in the
ordinary course of
business into Contracts providing for the restriction on use or
disclosure of
the confidential or proprietary information of any other Person)
or (ii) entry
into or termination or amendment of, or waiver, release,
assignment of any
material rights, claims or benefits of the Company or any of its
Subsidiaries
under, any Material Contract;
(e) amendment of the charter, bylaws or equivalent
organizational
documents (whether by merger, consolidation or otherwise) of the
Company or any
of its Subsidiaries;
(f) any splitting, combination or reclassification of any shares
of
capital stock of the Company or any of its Subsidiaries or
declaration, setting
aside or payment of any
18
<PAGE>
dividend or other distribution (whether in cash, stock or
property or any
combination thereof) in respect of any securities of the Company
or any of its
Subsidiaries, or redemption, repurchase or other acquisition or
offer to redeem,
repurchase, or otherwise acquire any securities of the Company
or any of its
Subsidiaries;
(g) (i) issuance, delivery or sale, or authorization of the
issuance,
delivery or sale of, any securities of the Company or any of its
Subsidiaries,
or (ii) amendment of any term of any securities of the Company
or any of its
Subsidiaries (in each case, whether by merger, consolidation or
otherwise);
(h) incurrence of any capital expenditures or any obligations
or
liabilities in respect thereof by the Company or any of its
Subsidiaries, except
for capital expenditures not to exceed $75,000 individually or
$250,000 in the
aggregate;
(i) acquisition (by merger, consolidation, acquisition of stock
or
assets or otherwise), directly or indirectly, by the Company or
any of its
Subsidiaries of any assets, securities, properties, interests or
businesses,
other than (i) acquisitions in the ordinary course of business
consistent with
past practice and (ii) purchases of equipment to fulfill
Contracts which the
Company or any of its Subsidiaries entered into in the ordinary
course of
business;
(j) sale, lease or other transfer, or creation or incurrence of
any
Encumbrance (other than Permitted Encumbrances) on, any assets,
securities,
properties, interests or businesses of the Company, other than
(i) sales of
products or services in the ordinary course of business
consistent with past
practice and (ii) sales of assets, securities, properties,
interests or
businesses with a sale price (including any related assumed
indebtedness) that
does not exceed $75,000 individually or $250,000 in the
aggregate;
(k) making by the Company or any of its Subsidiaries of any
loans,
advances or capital contributions to, or investments in, any
other Person (other
than routine travel and entertainment advances to
employees);
(l) settlement, or offer or proposal to settle, any Legal
Proceeding
or claim involving or against the Company or any of its
Subsidiaries (other than
claims wholly covered by insurance and settled by the applicable
insurance
carrier);
(m) with respect to the Company or any of its Subsidiaries, (i)
Tax
election made or changed, (ii) claim, notice, audit report or
assessment in
respect of Taxes settled or compromised (or agreement with
respect thereto),
(iii) material Tax Return filed, (iv) Tax allocation agreement,
Tax sharing
agreement, advance pricing agreement, cost sharing agreement,
pre-filing
agreement, Tax indemnity agreement or closing agreement relating
to any material
Tax entered into, (v) tax petition, tax complaint or
administrative tax appeal
filed, (vi) any right to claim a material Tax refund surrendered
or foregone, or
(vii) extension or waiver of the statute of limitations period
applicable to any
material Tax claim or assessment consented to; or
(n) entering into any agreement, commitment or undertaking to do
any
of the actions described in clauses "(a)" or "(c)" through
"(m)."
19
<PAGE>
SECTION 2.8. LITIGATION. Except as set forth on Schedule 2.8,
since November 23,
2005, there has been no Legal Proceeding pending, or to Seller's
knowledge,
threatened, that: (i) involves the Company or any of its
Subsidiaries or any of
the assets owned or used by the Company or any of its
Subsidiaries or any Person
whose liability the Company or any of its Subsidiaries has or
may have retained
or assumed, either contractually or by operation of law, in each
case, that
involves an amount in controversy of at least $75,000 or that
seeks to impose
any material restrictions on the operation of the business of
the Company and
its Subsidiaries; or (ii) challenges, or may have the effect of
preventing,
delaying, making illegal or otherwise interfering with, any of
the transactions
contemplated by this Agreement. Neither the Company nor any of
its Subsidiaries
(nor any of the assets owned or used by the Company or any of
its Subsidiaries)
is subject to any outstanding writ, order, judgment, injunction
or decree of any
Governmental Authority. To the knowledge of Seller, no officer
of the Company or
any of its Subsidiaries and no Senior Management Employee is
subject to any
writ, order, writ, judgment, injunction or decree that prohibits
such officer or
Senior Management Employee from engaging in or continuing any
conduct, activity
or practice relating to the business of the Company or any of
its Subsidiaries.
SECTION 2.9. TAXES. Except as set forth on Schedule 2.9:
(a) the Company and its Subsidiaries have timely filed or
been
included in all Tax Returns required to be filed by them or in
which they are to
be included with respect to Taxes for any period, taking into
account any
extension of time to file granted to or obtained on behalf of
the Company or any
of its Subsidiaries;
(b) all material Taxes of the Company and its Subsidiaries due
and
payable have been paid;
(c) neither the United States Internal Revenue Service (the
"IRS") nor
any other Governmental Authority has asserted by written notice
to the Company
or any of its Subsidiaries or has threatened in writing to
assert against the
Company or its Subsidiaries, any deficiency or claim for any
amount of
additional material Taxes;
(d) to Seller's knowledge, no U.S. federal, state, local or
foreign
audits or other administrative proceedings or court proceedings
are pending with
regard to any Taxes or Tax Returns of the Company or any of its
Subsidiaries and
neither the Company nor any of its Subsidiaries has received a
written notice of
any actual or threatened audits or proceedings;
(e) neither the Company nor any of its Subsidiaries is liable
for the
Taxes of any other Person (other than the Subsidiaries, in the
case of the
Company);
(f) the Company and its Subsidiaries have withheld all Taxes
required
to be withheld by them and have remitted to the appropriate
Governmental
Authority such Taxes required to be remitted by them;
(g) none of the Company or its Subsidiaries has acquired or had
the
use of any assets from a person with whom it was not dealing at
arm's length
other than at fair market value;
20
<PAGE>
(h) the Company and its Subsidiaries have complied in all
material
respects with all information reporting and withholding
requirements, including
maintenance of required records with respect thereto in
connection with amounts
paid or owing to any employee, creditor, independent contractor,
or other
Person;
(i) all sales and transfer Taxes required to be collected by
the
Company and its Subsidiaries have been collected, and all such
Taxes required to
be remitted to the applicable Governmental Authority have been
remitted; and
(j) there is no Contract covering any employee or former
employee of
the Company or any of its Subsidiaries that, individually or
collectively, will
give rise to the payment of any amount that would not be
deductible pursuant to
the terms of Section 280G of the Code in connection with the
transactions
contemplated by this Agreement.
SECTION 2.10. EMPLOYEE BENEFIT PLANS.
(a) Schedule 2.10(a) sets forth a list of every material
bonus,
deferred compensation, stock option, equity incentive or
purchase plan,
severance, vacation, sick leave or fringe benefit plan, program,
policy or
arrangement or employment, consulting or similar agreement
currently maintained,
or contributed to, by the Company or with respect to which the
Company or any
ERISA Affiliate has any obligation under contract or by
legislation with respect
to employees, former employees, directors and former directors
of the Company or
its Subsidiaries (the "Benefit Plans"), including each "employee
benefit plan"
as such term is defined under Section 3(3) of the Employee
Retirement Income
Security Act of 1974, as amended ("ERISA"). Except for such
matters as set forth
on Schedule 2.10(a), each Benefit Plan has been administered in
all material
respects in accordance with its terms and requirements of
applicable Legal
Requirements, including ERISA and the Code, which are applicable
to such Benefit
Plan.
(b) No Legal Proceeding (other than routine claims for benefits)
is
pending or, to the knowledge of Seller, asserted in writing, in
each case
against the Benefit Plans.
(c) With respect to each Benefit Plan, Seller has made available
to
Buyer or its representatives (if applicable to such Benefit
Plan): (i) all
documents embodying or governing such Benefit Plan, and any
funding medium for
the Benefit Plan (including, without limitation, amendments,
related trust
agreements, custodial agreements, insurance contracts,
investment contracts and
other funding arrangements, if any, and adoption agreements, if
any); (ii) the
summary plan description and summaries of material
modifications, as defined
under ERISA for such Benefit Plan (or, if not subject to ERISA,
other
descriptions of such Benefit Plan provided to employees); (iii)
the last annual
report (e.g., the complete Form 5500 series) prepared in
connection with each
Benefit Plan (if any such report was required), including all
attachments
(including without limitation the audited financial statements,
if any); and
(iv) any insurance policy related to such Benefit Plan.
(d) There has been no amendment to, written interpretation
or
announcement (whether or not written) by the Company or any of
its Subsidiaries
relating to, or change in employee participation or coverage
under, any Benefit
Plan that would increase materially the
21
<PAGE>
expense of maintaining such Benefit Plan above the level of
expense incurred in
respect of such Benefit Plan for the most recent plan year with
respect to the
Benefit Plan.
(e) Each Benefit Plan which is an "employee pension benefit
plan" as
defined in Section 3(2) of ERISA (a "Pension Plan") intended to
be "qualified"
within the meaning of Section 401(a) of the Code, has received
an opinion letter
from the IRS and the Company is not aware of any circumstances
that would
reasonably be expected to result in loss of the qualification of
such Pension
Plan under Section 401(a) of the Code and Seller has delivered
or caused to be
delivered to Buyer the latest determination letters or opinion
letter of the IRS
relating to each Pension Plan.
(f) Neither the Company nor any of its Subsidiaries have engaged
(i)
in any transaction or acted or failed to act in a manner that
violates the
fiduciary requirements of Section 404 of ERISA or (ii) in any
Prohibited
Transaction with respect to any Benefit Plan.
(g) The Company and its Subsidiaries have made all required
contributions under each Pension Plan on a timely basis or, if
not yet due,
adequate accruals therefore have been provided for in the Base
Balance Sheet.
(h) No Benefit Plan is subject to Title IV of ERISA or Section
412 of
the Code.
(i) Neither the Company nor any ERISA Affiliate has ever
maintained,
adopted or established, contributed or been required to
contribute to, or
otherwise participate in or been required to participate in, any
"multiemployer
plan" (as defined in Section 3(37) of ERISA).
(j) Except as set forth on Schedule 2.10(j), no Benefit Plan
provides
benefits, including without limitation, any severance or other
post-employment
benefit, salary continuation, termination, death, disability,
health or medical
benefits (whether or not insured), life insurance or similar
benefit with
respect to current or former employees (or their spouses or
dependents) of the
Company and its Subsidiaries beyond their retirement or other
termination of
service other than (i) coverage mandated by applicable Legal
Requirements, (ii)
death, disability or retirement benefits under any Pension Plan
or (iii)
benefits, the full cost of which is borne by the current or
former employee (or
his or her beneficiary).
(k) The Company and its Subsidiaries have complied in all
material
respects with, and satisfied, the requirements of COBRA with
respect to each
Benefit Plan that is subject to the requirements of COBRA. Each
Benefit Plan
which is a group health plan, within the meaning of Section
9832(a) of the Code,
has complied in all material respects with and satisfied the
applicable
requirements of Sections 9801 and 9802 of the Code.
(l) Any Benefit Plan and any agreement to which the Company or
any of
its Subsidiaries is a party and that is a nonqualified deferred
compensation
plan within the meaning of Section 409A of the Code has been
operated since
January 1, 2005 in good faith compliance with Section 409A of
the Code and the
regulations and other guidance issued thereunder by the
Department of Treasury
and the IRS.
22
<PAGE>
(m) Except as set forth on Schedule 2.10(m), the consummation of
the
transactions contemplated by this Agreement will not (either
alone or together
with any other event) entitle any employee, director or
independent contractor
of the Company or any of its Subsidiaries to severance pay or
accelerate the
time of payment or vesting or trigger any payment or funding
(through a grantor
trust or otherwise) of compensation or benefits under, or
increase the amount
payable or trigger any other material obligation pursuant to,
any Benefit Plan.
(n) The Company and its Subsidiaries have complied in all
material
respects with their respective obligations under the Workplace
Relations Act
1996, long service leave legislation and any industrial award,
industrial
instrument, workplace agreement, notional agreement preserving
state awards,
notional agreement preserving state agreement and any contract
of employment in
respect of any or all employees engaged by ADS Environmental
Services Pty
Limited or ADS Environmental Services NZ Limited.
SECTION 2.11. REAL AND PERSONAL PROPERTY.
(a) Neither the Company nor any of its Subsidiaries owns any
real
property.
(b) Schedule 2.11(b) sets forth a list of all real property
leased by
the Company or any of its Subsidiaries (the "Leased Real
Property"). Accurate
and complete copies of all leases relating to Leased Real
Property identified or
required to be identified on Schedule 2.11(b) (the "Leases")
have been made
available to Buyer or its Representatives. With respect to each
Leased Real
Property listed or required to be listed on Schedule
2.11(b):
(i) the Company or a Subsidiary of the Company, as
applicable, has a valid and enforceable leasehold interest to
the
leasehold estate in the Leased Real Property granted to the
Company or
such Subsidiary, as applicable, pursuant to such Lease, subject
to
applicable bankruptcy, insolvency, moratorium or other similar
laws
relating to creditors' rights and general principles of
equity;
(ii) such Lease has been duly authorized and executed by the
Company or such Subsidiary, as applicable;
(iii) neither the Company nor such Subsidiary is in material
default under such Lease, nor, to Seller's knowledge, has any
event
occurred which, with notice or the passage of time, or both,
would
give rise to such a default by the Company or such Subsidiary,
as
applicable;
(iv) to Seller's knowledge, the landlord identified therein
is not in material default under such Lease, nor, to
Seller's
knowledge, has any event occurred which, with notice or the
passage of
time, or both, would give rise to such a default by such
landlord; and
(v) neither the Company nor any of its Subsidiaries has
assigned, transferred, conveyed, mortgaged, deeded in trust
or
encumbered any interest in such Lease.
23
<PAGE>
(c) To Seller's knowledge, except as set forth on Schedule
2.11(c) or
as specifically disclosed in the Base Balance Sheet, and except
with respect to
leased personal property, the Company and each of its
Subsidiaries has good
title to all of their tangible personal property and assets
shown on the Base
Balance Sheet or acquired after the date of the Base Balance
Sheet, free and
clear of any Encumbrances, other than (i) Permitted
Encumbrances, (ii) assets
that have been disposed of since the date of the Base Balance
Sheet in the
ordinary course of business, and (iii) Encumbrances reflected in
the Base
Balance Sheet.
(d) Schedule 2.11(d) sets forth an accurate and complete list of
each
asset owned or leased by the Company and its Subsidiaries with a
value in excess
of $10,000 on an individual basis as of the date of this
Agreement. Each asset
identified or required to be identified in Schedule 2.11(d): (i)
is structurally
sound, free of defects and deficiencies and in good condition
and repair, in
each case, in all material respects (ordinary wear and tear
excepted); (ii)
complies in all respects with, and is being operated and
otherwise used in
compliance in all material respects with, all applicable Legal
Requirements; and
(iii) is adequate and appropriate in all material respects for
the uses to which
it is being put.
(e) Except as set forth on Schedule 2.11(e), the Company is not
a
party to any Contracts with, and does not use any of the assets
or properties
of, Seller or any of its Affiliates or Subsidiaries (other than
the Company and
its Subsidiaries and their respective employees in their
capacity as such).
SECTION 2.12. LABOR AND EMPLOYMENT MATTERS.
(a) To Seller's knowledge, except as set forth on Schedule
2.12(a) or
as otherwise would not have, individually or in the aggregate, a
Material
Adverse Effect, the Company and each of its Subsidiaries are in
compliance with
all U.S. federal, provincial, state and municipal laws, or any
applicable laws
of any foreign jurisdiction, respecting employment and
employment practices,
terms and conditions of employment and wages and hours. Neither
the Company nor
any Subsidiary of the Company is delinquent in any material
payments to any of
its employees for any wages, salaries, commissions, bonuses,
severance,
termination pay or other direct compensation for any services
performed for it
to the date hereof or amounts required to be reimbursed to such
employees.
(b) Neither the Company nor any Subsidiary of the Company is a
party
to or otherwise bound by any collective bargaining agreement,
contract or other
agreement or understanding with a labor union or labor
organization. Except as
would not have, individually or in the aggregate, a Material
Adverse Effect,
neither the Company nor any Subsidiary of the Company is subject
to any charge,
demand, petition or representation proceeding seeking to compel,
require or
demand it to bargain with any labor union or labor organization,
nor is there
pending or, to Seller's knowledge, threatened in writing, any
material labor
strike, dispute, walkout, work stoppage, slow-down or lockout
involving the
Company or any Subsidiary of the Company.
(c) To the extent required by applicable Legal Requirements,
the
Company and its Subsidiaries have on file a valid Form I-9 for
each employee
hired by the Company and its Subsidiaries, or any predecessor of
the Company or
any of its Subsidiaries, after November
24
<PAGE>
23, 2005 and for each employee where employment terminated after
November 23,
2005. Except as set forth on Schedule 2.12(c), to the knowledge
of Seller, all
employees of the Company and its Subsidiaries employed in the
United States are
(i) United States citizens, or lawful permanent residents of the
United States,
(ii) aliens whose right to work in the United States is
unrestricted, (iii)
aliens who have valid, unexpired work authorization issued by
the Attorney
General of the United States (Immigration and Naturalization
Service) or (iv)
aliens who have been continually employed by the Company or one
of its
Subsidiaries since November 6, 1986 or the applicable date of
hire. Except as
set forth on Schedule 2.12(c), the Company and its Subsidiaries
have not been
the subject of an immigration compliance or employment visit
from, nor has the
Company or any Subsidiary been assessed any fine or penalty by,
or been the
subject of any order or directive of, the United States
Department of Labor or
the Attorney General of the United States (Immigration and
Naturalization
Service).
(d) Except as set forth on Schedule 2.12(d), during the ninety
(90)
days preceding the date hereof, neither the Company nor any of
its Subsidiaries
have terminated the employment of any Senior Management
Employee, excluding
voluntary resignation and termination for cause.
(e) Neither the Company nor any of its Subsidiaries has any
liability,
whether absolute or contingent, including any obligations under
any Benefit
Plans, with respect to any misclassification of a Person
performing services for
the Company or any of its Subsidiaries as an independent
contractor or
consultant rather than as an employee.
SECTION 2.13. CONTRACTS AND COMMITMENTS. Except as set forth in
Schedule 2.13,
as of the date of this Agreement, neither the Company nor any
Subsidiary of the
Company is a party to:
(a) any partnership agreement, joint venture agreement or
agreement
pertaining to the sharing of revenues, profits, losses, costs,
liabilities or
any other similar Contract;
(b) any lease (whether for real or personal property) providing
for
annual rentals of $25,000 or more;
(c) any Contract relating to the acquisition, transfer, use,
development, sharing or license of any technology or
Intellectual Property other
than commercially available software licensable on standard
terms with a per
copy license fee of less than $10,000;
(d) any Contract relating to the acquisition or disposition of
any
business or operations of any other Person (whether by merger,
sale of stock,
sale of assets or otherwise) entered into after November 23,
2005;
(e) any Contract relating to the acquisition, issuance or
transfer of
any securities of the Company or any of its Subsidiaries;
(f) any Contract relating to any interest rate, currency or
commodity
derivatives or hedging transaction;
25
<PAGE>
(g) any Contract which cr
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