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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 28, 1999
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Genesys Telecommunications Laboratories, Inc.
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(Exact name of registrant as specified in its charter)
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<CAPTION>
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California 000- 22605 94-3120525
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1155 Market Street, 11/th/ Floor, San Francisco, CA 94103
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(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code: (415) 437-1100
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______________________________________________________________________________
(Former name or former address, if changed since last report)
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Item 1. Changes in Control of Registrant.
(b) On September 27, 1999, Genesys Telecommunications Laboratories, Inc.,
a California corporation ("Genesys") entered into an Agreement and Plan of
Merger and Reorganization (the "Merger Agreement") with Alcatel, a company
organized under the laws of France ("Alcatel"), pursuant to which Alcatel has
agreed to acquire Genesys (the "Acquisition"). A copy of the Merger Agreement is
attached hereto as Exhibit 2.1 and incorporated herein by reference. The
Acquisition will be effected through the issuance of 1.667 American Depositary
Shares of Alcatel (the "ADSs"), each of which ADS represents one-fifth of a
share, nominal value 10 Euros per share of Alcatel, in exchange for each share
of common stock of Genesys outstanding immediately prior to the consummation of
the Acquisition, subject to the collar provision described below. The exchange
ratio is subject to a collar such that the value provided to each Genesys share,
based on the 10 day trading average ADS price for the period ending 2 trading
days prior to Genesys' shareholder meeting, shall not exceed $55.00 or be less
than $45.00. Alcatel will have the option to pay $45.00 in cash per share if
such trading average ADS price does not exceed $24.00. Alcatel will also assume
Genesys' stock options outstanding at the effective date of the Acquisition,
based on such exchange ratio. The amount of such consideration was determined
based upon arm's-length negotiations between Alcatel and Genesys. The Merger
Agreement also provides for the payment by Genesys to Alcatel under certain
circumstances of a fee of $45 million in the event the Merger Agreement is
terminated.
Unless Alcatel exercises its option to pay cash instead of exchanging
stock, the Acquisition is intended to qualify as a tax-free reorganization under
the Internal Revenue Code of 1986, as amended, and is intended to be accounted
for as a French pooling of interests. The consummation of the Acquisition is
subject to the satisfaction of certain conditions, including certain regulatory
approvals and the approval of the shareholders of Genesys. In connection with
the Acquisition, certain affiliates of Genesys have agreed to vote in favor of
approval of the Acquisition pursuant to the Voting Agreement attached hereto as
Exhibit 2.2.
A copy of the press release announcing the Merger Agreement is attached
hereto as Exhibit 99.1 and incorporated herein by reference.
This document may include forward-looking statements within the meaning of
Safe Harbor provisions of the U.S. federal securities laws. These statements are
based on current expectations, estimates and projections about the general
economy and Alcatel's and Genesys' lines of business and are generally
identifiable by statements containing words such as "expects," "believes,"
"estimates," or similar expressions. Statements related to the future
performance involve certain assumptions, risks and uncertainties, many of which
are beyond the control of Alcatel or Genesys, and include, among others, foreign
and domestic product and price competition, cost effectiveness, changes in
governmental regulations, general economic and market conditions in various
geographic areas, interest rates and the availability of capital. Although
Alcatel and Genesys believe their respective expectations reflected in
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any such forward-looking statements are based upon reasonable assumptions, they
can give no assurance that those expectations will be achieved.
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Item 7. Financial Statements and Exhibits.
(c) Exhibits.
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2.2 Agreement and Plan of Merger and Reorganization dated as of
September 27, 1999 by and among Alcatel, Eden Merger Corp. and
Genesys Telecommunications Laboratories, Inc. (excluding exhibits).
2.3 Voting Agreement dated as of September 27, 1999 by and among
Alcatel, Ori Sasson, Gregory Shenkman, Alec Miloslavsky and Bruce
Dunlevie.
99.1 Press Release dated September 28, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: September 29, 1999 GENESYS TELECOMMUNICATIONS
LABORATORIES, INC.
/s/ Richard C. DeGolia
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Name
Senior Vice President
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Title
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INDEX TO EXHIBITS
Exhibit
Number Description of Document
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2.2 Agreement and Plan of Merger and Reorganization dated as of
September 27, 1999 by and among Alcatel S.A., Eden Merger Corp., and
Genesys Telecommunications Laboratories, Inc. (excluding exhibits).
2.3 Voting Agreement dated as of September 27, 1999 by and among
Alcatel, Ori Sasson, Gregory Shenkman, Alec Miloslavsky and Bruce
Dunlevie.
99.1 Press Release dated September 28, 1999.
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EXHIBIT 2.2
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
GENESYS TELECOMMUNICATIONS LABORATORIES, INC.,
ALCATEL
AND
EDEN MERGER CORP.
Dated as of September 27, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I THE MERGER.............................................. 2
SECTION 1.1 THE MERGER...................................... 2
SECTION 1.2 EFFECT ON COMMON STOCK.......................... 2
SECTION 1.3 EXCHANGE OF CERTIFICATES........................ 4
SECTION 1.4 TRANSFER TAXES; WITHHOLDING..................... 6
SECTION 1.5 STOCK OPTIONS................................... 6
SECTION 1.6 LOST CERTIFICATES............................... 7
SECTION 1.7 MERGER CLOSING.................................. 7
SECTION 1.8 STOCK TRANSFER BOOKS............................ 7
SECTION 1.9 RESTRICTED STOCK................................ 7
ARTICLE II THE SURVIVING CORPORATION.............................. 7
SECTION 2.1 ARTICLES OF INCORPORATION....................... 7
SECTION 2.2 BY-LAWS......................................... 8
SECTION 2.3 OFFICERS AND DIRECTORS.......................... 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY......... 8
SECTION 3.1 CORPORATE EXISTENCE AND POWER................... 8
SECTION 3.2 CORPORATE AUTHORIZATION......................... 9
SECTION 3.3 CONSENTS AND APPROVALS; NO VIOLATIONS........... 9
SECTION 3.4 CAPITALIZATION.................................. 10
SECTION 3.5 SUBSIDIARIES.................................... 11
SECTION 3.6 SEC DOCUMENTS................................... 11
SECTION 3.7 FINANCIAL STATEMENTS............................ 12
SECTION 3.8 ABSENCE OF UNDISCLOSED LIABILITIES.............. 12
SECTION 3.9 PROXY STATEMENT; FORM F-4....................... 12
SECTION 3.10 ABSENCE OF MATERIAL ADVERSE CHANGES, ETC........ 13
SECTION 3.11 TAXES........................................... 14
SECTION 3.12 EMPLOYEE BENEFIT PLANS.......................... 15
SECTION 3.13 LITIGATION; COMPLIANCE WITH LAWS................ 17
SECTION 3.14 LABOR MATTERS................................... 18
SECTION 3.15 CERTAIN CONTRACTS AND ARRANGEMENTS.............. 18
SECTION 3.16 ENVIRONMENTAL MATTERS........................... 18
SECTION 3.17 INTELLECTUAL PROPERTY........................... 20
SECTION 3.18 OPINION OF FINANCIAL ADVISOR.................... 22
SECTION 3.19 BOARD RECOMMENDATION............................ 22
SECTION 3.20 TAX TREATMENT................................... 22
SECTION 3.21 FINDERS' FEES................................... 23
SECTION 3.22 AFFILIATE TRANSACTIONS.......................... 23
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TABLE OF CONTENTS
(continued)
Page
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SECTION 3.23 INSURANCE............................................. 23
SECTION 3.24 YEAR 2000 COMPLIANCE.................................. 23
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB...... 23
SECTION 4.1 CORPORATE EXISTENCE AND POWER......................... 24
SECTION 4.2 AUTHORIZATION......................................... 24
SECTION 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS................. 24
SECTION 4.4 CAPITALIZATION........................................ 25
SECTION 4.5 SEC DOCUMENTS......................................... 25
SECTION 4.6 FINANCIAL STATEMENTS.................................. 26
SECTION 4.7 ABSENCE OF MATERIAL ADVERSE CHANGES, ETC.............. 26
SECTION 4.8 PROXY STATEMENT; FORM F-4............................. 26
SECTION 4.9 LITIGATION; COMPLIANCE WITH LAWS...................... 26
SECTION 4.10 INTELLECTUAL PROPERTY................................. 27
SECTION 4.11 MERGER SUB'S OPERATIONS............................... 27
SECTION 4.12 TAX TREATMENT......................................... 27
SECTION 4.13 FINDERS' FEES......................................... 27
ARTICLE V COVENANTS OF THE PARTIES...................................... 27
SECTION 5.1 CONDUCT OF THE BUSINESS OF THE COMPANY................ 27
SECTION 5.2 CONDUCT OF THE BUSINESS OF PARENT..................... 28
SECTION 5.3 SHAREHOLDERS' MEETING; PROXY MATERIAL................. 28
SECTION 5.4 ACCESS TO INFORMATION; CONFIDENTIALITY AGREEMENT...... 29
SECTION 5.5 NO SOLICITATION....................................... 29
SECTION 5.6 DIRECTOR AND OFFICER LIABILITY........................ 30
SECTION 5.7 COMMERCIALLY REASONABLE EFFORTS....................... 31
SECTION 5.8 CERTAIN FILINGS....................................... 31
SECTION 5.9 PUBLIC ANNOUNCEMENTS.................................. 32
SECTION 5.10 FURTHER ASSURANCES.................................... 32
SECTION 5.11 EMPLOYEE MATTERS...................................... 32
SECTION 5.12 TAX-FREE REORGANIZATION TREATMENT..................... 33
SECTION 5.13 STATE AND FOREIGN PERMITS............................. 33
SECTION 5.14 LISTING............................................... 33
SECTION 5.15 STATE TAKEOVER LAWS................................... 33
SECTION 5.16 CERTAIN NOTIFICATIONS................................. 34
SECTION 5.17 AFFILIATE LETTERS..................................... 34
SECTION 5.18 POOLING............................................... 34
SECTION 5.19 LETTERS OF ACCOUNTANTS................................ 34
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE VI CONDITIONS TO THE MERGER....................................... 35
SECTION 6.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS.................. 35
SECTION 6.2 CONDITIONS TO THE COMPANY'S OBLIGATION TO CONSUMMATE
THE MERGER............................................ 35
SECTION 6.3 CONDITIONS TO PARENT'S AND MERGER SUB'S OBLIGATIONS
TO CONSUMMATE THE MERGER.............................. 36
ARTICLE VII TERMINATION................................................... 37
SECTION 7.1 TERMINATION............................................. 37
SECTION 7.2 EFFECT OF TERMINATION................................... 38
SECTION 7.3 FEES.................................................... 39
ARTICLE VIII MISCELLANEOUS................................................ 39
SECTION 8.1 NOTICES................................................. 39
SECTION 8.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............. 40
SECTION 8.3 INTERPRETATION.......................................... 40
SECTION 8.4 AMENDMENTS, MODIFICATION AND WAIVER..................... 41
SECTION 8.5 SUCCESSORS AND ASSIGNS.................................. 41
SECTION 8.6 SPECIFIC PERFORMANCE.................................... 41
SECTION 8.7 GOVERNING LAW........................................... 41
SECTION 8.8 SEVERABILITY............................................ 41
SECTION 8.9 THIRD PARTY BENEFICIARIES............................... 42
SECTION 8.10 ENTIRE AGREEMENT........................................ 42
SECTION 8.11 COUNTERPARTS; EFFECTIVENESS............................. 42
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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated as of September 27,
1999 (this "AGREEMENT"), by and among Genesys Telecommunications Laboratories,
Inc., a California corporation (the "COMPANY"), Alcatel, a corporation organized
under the laws of France ("PARENT"), and Eden Merger Corp., a California
corporation and a direct wholly-owned subsidiary of Parent ("MERGER SUB").
W I T N E S S E T H
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the
Company, and Parent as sole shareholder of Merger Sub, have each approved this
Agreement and the merger of Merger Sub with and into the Company, upon the terms
and subject to the conditions set forth herein, and in accordance with the
California Corporations Code (the "CCC"), whereby each issued and outstanding
share of common stock, no par value (the "COMMON STOCK"), of the Company (other
than shares of Common Stock owned, directly or indirectly, by the Company or by
Merger Sub immediately prior to the Effective Time (as defined in Section 1.1(b)
hereof)), will, upon the terms and subject to the conditions and limitations set
forth herein, be converted into a fraction of a Parent American Depositary Share
(collectively, the "ADSS"), each of which ADS represents one-fifth of a share,
nominal value 10 Euros per share of Parent (the "PARENT SHARES") in accordance
with the provisions of Article I of this Agreement;
WHEREAS, as a condition and inducement to Parent's and Merger Sub's
entering into this Agreement and incurring the obligations set forth herein,
concurrently with the execution and delivery of this Agreement, Parent is
entering into a Voting Agreement with certain shareholders of the Company, dated
the date hereof (the "VOTING AGREEMENT"), pursuant to which, among other things,
such shareholders have agreed, subject to the terms and conditions contained
therein, to vote all shares of Common Stock then owned by such shareholders to
approve and adopt this Agreement, and have granted to Parent a proxy to vote
their shares of Common Stock upon the terms and subject to the conditions set
forth therein;
WHEREAS, the parties intend that the Merger shall be accounted for as a
"pooling of interests" for financial reporting purposes in accordance with
French generally accepted accounting principles; and
WHEREAS, for federal income tax purposes, the Merger (as defined in Section
1.1(a) hereof) is intended to qualify as a reorganization under the provisions
of Section 368(a) of the United States Internal Revenue Code of 1986, as amended
(the "CODE").
NOW, THEREFORE, in consideration of the representations, warranties,
covenants, agreements and conditions set forth herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER.
(a) Upon the terms and subject to the conditions of this Agreement,
and in accordance with the CCC, at the Effective Time (as defined in Section
1.1(b) hereof), Merger Sub shall be merged (the "MERGER") with and into the
Company, whereupon the separate existence of Merger Sub shall cease, and the
Company shall continue as the surviving corporation (sometimes referred to
herein as the "SURVIVING CORPORATION") and shall continue to be governed by the
laws of the State of California and shall continue under the name "Genesys
Telecommunications Laboratories, Inc."
(b) Concurrently with the Closing (as defined in Section 1.7 hereof),
the Company, Parent and Merger Sub shall cause an agreement of merger (the
"AGREEMENT OF MERGER") with respect to the Merger to be executed and filed with
the Secretary of State of the State of California (the "SECRETARY OF STATE") as
provided in the CCC. The Merger shall become effective on the date and time at
which the Agreement of Merger has been duly filed with the Secretary of State or
at such other date and time as is agreed between the parties and specified in
the Agreement of Merger, and such date and time is hereinafter referred to as
the "EFFECTIVE TIME."
(c) From and after the Effective Time, the Surviving Corporation
shall possess all rights, privileges, immunities, powers and franchises and be
subject to all of the obligations, restrictions, disabilities, liabilities,
debts and duties of the Company and Merger Sub.
SECTION 1.2 EFFECT ON COMMON STOCK. At the Effective Time:
(a) CANCELLATION OF SHARES OF COMMON STOCK. Each share of Common
Stock held by the Company as treasury stock and each share of Common Stock owned
by Merger Sub immediately prior to the Effective Time shall automatically be
cancelled and retired and cease to exist, and no consideration or payment shall
be delivered therefor or in respect thereto. All shares of Common Stock to be
converted into ADSs pursuant to this Section 1.2 shall, by virtue of the Merger
and without any action on the part of the holders thereof, cease to be
outstanding, be cancelled and retired and cease to exist, and each holder of a
certificate (representing prior to the Effective Time any such shares of Common
Stock) shall thereafter cease to have any rights with respect to such shares of
Common Stock, except the right to receive (i) the ADSs representing Parent
Shares into which such shares of Common Stock have been converted, (ii) any
dividend and other distributions in accordance with Section 1.3(c) hereof and
(iii) any cash, without interest, to be paid in lieu of any fraction of an ADS
in accordance with Section 1.3(d) hereof.
(b) CAPITAL STOCK OF MERGER SUB. Each share of common stock of Merger
Sub issued and outstanding immediately prior to the Effective Time shall be
converted into one share of Common Stock, no par value, of the Surviving
Corporation with the same rights,
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powers and privileges as the shares so converted and shall constitute the only
outstanding shares of capital stock of the Surviving Corporation.
(c) CONVERSION OF SHARES OF COMMON STOCK. Subject to Section 1.3(d)
hereof, each share of Common Stock issued and outstanding immediately prior to
the Effective Time (other than shares of Common Stock referred to in the first
sentence of Section 1.2(a) hereof and Dissenting Shares (as defined in Section
1.2(d)) shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into (i) 1.667 ADS's in the event the Closing Share
Value (as defined below) is less than $33.00 and greater than $27.00, or (ii)
that number of ADS's equal to the quotient (calculated to three decimal places)
obtained by dividing $55 by the Closing Share Value in the event the Closing
Share Value is not less than $33.00 or (iii) that number of ADSs equal to the
quotient (calculated to three decimal places) obtained by dividing $45.00 by the
Closing Share Value in the event the Closing Share Value is not greater than
$27.00 (the "EXCHANGE RATIO"). In the event the Closing Share Value is not
greater than $24.00, Parent shall be entitled to deliver to Company
shareholders, in lieu of the ADSs to which they might otherwise be entitled
hereunder, an amount in cash equal to $45.00 per share of Common Stock held. The
parties hereto acknowledge that in such event, several changes to the terms of
the proposed transaction necessitated by such event would arise, including the
fact that the proposed transaction would cease to be a tax-free reorganization.
In such event, the duties of the Exchange Agent as set forth in Section 1.3
below shall be exercised for the exchange of Common Stock for cash instead of
ADSs. "CLOSING SHARE VALUE" shall mean the average of the closing price of the
ADS's on the New York Stock Exchange (the "NYSE") during the 10-trading day
period ending 2 trading days prior to the Special Meeting.
(d) DISSENTING SHARES. (i) Notwithstanding any provision of this
Agreement to the contrary, any shares of Common Stock held by a holder who has
demanded and perfected dissenters' rights for such shares in accordance with the
CCC and who, as of the Effective Time, has not effectively withdrawn or lost
such dissenters' rights ("DISSENTING SHARES") shall not be converted into or
represent a right to receive ADSs pursuant to Section 1.2(c), but the holder
thereof shall only be entitled to such rights as are granted by the CCC.
(ii) notwithstanding the provisions of subsection (i) above, if
any holder of shares of Common Stock who demands purchase of such shares under
the CCC shall effectively withdraw or lose (through failure to perfect or
otherwise) such holder's dissenters' rights, then, as of the later of (A) the
Effective Time or (B) the occurrence of such event, such holder's shares shall
automatically be converted into and represent only the right to receive ADSs as
provided in Section 1.2(c), without interest thereon, upon surrender of the
certificate formerly representing such shares.
(iii) The Company shall give Parent (A) prompt notice of its
receipt of any written demands for purchase of any shares of Common Stock,
withdrawals of such demands, and any other instruments relating to the Merger
served pursuant to the CCC and received by the Company and (B) the opportunity
to participate in all negotiations and proceedings with respect to demands for
purchase of any shares of Common Stock under the CCC. The Company shall not,
except with the prior written consent of Parent or as may be required under
applicable laws (in which case Company shall provide prior notice to Parent),
voluntarily make any payment with
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respect to any demands for the purchase of Common Stock or offer to settle or
settle any such demands.
SECTION 1.3 EXCHANGE OF CERTIFICATES.
(a) Prior to the mailing of the Proxy Statement (as defined in
Section 5.3(c) hereof) The Bank of New York or such other bank, trust company,
Person or Persons as shall be designated by Parent and reasonably acceptable to
the Company shall act as the depositary and exchange agent for the delivery of
the ADSs in exchange for shares of Common Stock (the "EXCHANGE AGENT") in
connection with the Merger. At or promptly following the Effective Time, Parent
shall deposit, or cause to be deposited, with the Exchange Agent the receipts
("ADRS"), representing ADSs, for the benefit of the holders of shares of Common
Stock which are converted into ADSs pursuant to Section 1.2(c) hereof (together
with cash as required to (i) pay any dividends or distributions with respect
thereto in accordance with Section 1.3(c) hereof and (ii) make payments in lieu
of fractional ADSs, pursuant to Section 1.3(d) hereof, being hereinafter
referred to as the "EXCHANGE FUND")). To the extent required, the Exchange Agent
will requisition from The Bank of New York, as depositary for the ADSs (the
"DEPOSITARY"), from time to time, such number of ADSs as are issuable in respect
of shares of Common Stock properly delivered to the Exchange Agent. For purposes
of this Agreement, "PERSON" means any natural person, firm, individual,
corporation, limited liability company, partnership, association, joint venture,
company, business trust, trust or any other entity or organization, whether
incorporated or unincorporated, including a government or political subdivision
or any agency or instrumentality thereof.
(b) As of or promptly following the Effective Time, the Surviving
Corporation shall cause the Exchange Agent to mail (and to make available for
collection by hand) to each holder of record of a certificate or certificates,
which immediately prior to the Effective Time represented outstanding shares of
Common Stock (other than Dissenting Shares) (the "CERTIFICATES"), (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificate or Certificates shall pass, only upon proper
delivery of the Certificate or Certificates to the Exchange Agent and which
shall be in the form and have such other provisions as Parent and the Company
may reasonably specify) and (ii) instructions for use in effecting the surrender
of the Certificates in exchange for a certificate or certificates representing
ADRs evidencing that number of whole ADSs, if any, into which the number of
shares of Common Stock previously represented by such Certificate shall have
been converted pursuant to this Agreement (which instructions shall provide that
at the election of the surrendering holder, Certificates may be surrendered, and
ADRs evidencing the ADSs in exchange therefor collected, by hand delivery). Upon
surrender of a Certificate for cancellation to the Exchange Agent, together with
a letter of transmittal duly completed and validly executed in accordance with
the instructions thereto, and such other documents as may be required pursuant
to such instructions, the holder of such Certificate or Certificates shall be
entitled to receive in exchange therefor ADRs evidencing the fraction of an ADS
for each share of Common Stock formerly represented by such Certificate or
Certificates, to be mailed (or made available for collection by hand if so
elected by the surrendering holder) within fifteen business days of receipt
thereof (but in no case prior to the Effective Time), and the Certificate or
Certificates so surrendered shall be forthwith cancelled. The Exchange Agent
shall accept such Certificate or Certificates upon compliance with such
reasonable terms and conditions as the Exchange Agent may impose to effect an
orderly exchange thereof in accordance with normal
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exchange practices. No interest shall be paid or accrued for the benefit of
holders of the Certificates on the cash payable pursuant to subsections (c) and
(d) below upon the surrender of the Certificates.
(c) No dividends or other distributions with respect to Parent Shares
with a record date on or after the Effective Time shall be paid to the holder of
any unsurrendered Certificate with respect to the ADSs represented thereby by
reason of the conversion of shares of Common Stock pursuant to Sections 1.2(c)
hereof and no cash payment in lieu of fractional ADSs shall be paid to any such
holder pursuant to Section 1.3(d) hereof until such Certificate is surrendered
in accordance with this Article I. Subject to the effect of applicable laws,
following surrender of any such Certificate, there shall be paid, without
interest, to the person in whose name the ADSs representing such securities are
registered (i) at the time of such surrender or as promptly after the sale of
the Excess ADSs (as defined in Section 1.3(d) hereof) as practicable, the amount
of any cash payable in lieu of fractional ADSs to which such holder is entitled
pursuant to Section 1.3(d) hereof and the proportionate amount of dividends or
other distributions with a record date after the Effective Time theretofore paid
with respect to ADSs, and (ii) at the appropriate payment date or as promptly as
practicable thereafter, the proportionate amount of dividends or other
distributions with a record date after the Effective Time but prior to such
surrender and a payment date subsequent to such surrender payable with respect
to such ADSs.
(d) Notwithstanding any other provision of this Agreement, no
fraction of an ADS will be issued and no dividend or other distribution, stock
split or interest with respect to Parent Shares shall relate to any fractional
ADS, and such fractional interest shall not entitle the owner thereof to vote or
to any rights as a security holder of the ADSs. In lieu of any such fractional
security, each holder of shares of Common Stock otherwise entitled to a fraction
of an ADS will be entitled to receive in accordance with the provisions of this
Section 1.3 from the Exchange Agent a cash payment representing such holder's
proportionate interest in the net proceeds from the sale by the Exchange Agent
on behalf of all such holders of the aggregate of the fractions of ADSs which
would otherwise be issued (the "EXCESS ADSS"). The sale of the Excess ADSs by
the Exchange Agent shall be executed on the NYSE through one or more member
firms of the NYSE and shall be executed in round lots to the extent practicable.
Until the net proceeds of such sale or sales have been distributed to the
holders of shares of Common Stock, the Exchange Agent will, subject to Section
1.3(e) hereof, hold such proceeds in trust for the holders of shares of Common
Stock (the "ADS TRUST"). Parent shall pay all commissions, transfer taxes (other
than those transfer taxes for which the Company's shareholders are solely
liable) and other out-of-pocket transaction costs, including the expenses and
compensation, of the Exchange Agent incurred in connection with such sale of the
Excess ADSs. As soon as practicable after the determination of the amount of
cash, if any, to be paid to holders of shares of Common Stock in lieu of any
fractional ADS interests, the Exchange Agent shall make available such amounts
to such holders of shares of Common Stock without interest.
(e) Any portion of the Exchange Fund which remains undistributed to
the holders of the Certificate or Certificates for one year after the Effective
Time shall be delivered to Parent, upon demand, and any holders of shares of
Common Stock prior to the Merger who have not theretofore complied with this
Article I shall thereafter look for payment of their claim, as general creditors
thereof, only to Parent for their claim for ADSs, any cash without interest, to
be paid, in
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lieu of any fractional ADSs and any dividends or other distributions with
respect to ADSs to which such holders may be entitled.
(f) None of Parent, Merger Sub, Company or the Exchange Agent shall
be liable to any Person in respect of any ADSs held in the Exchange Fund (and
any cash, dividends and other distributions payable in respect thereof)
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any Certificate or Certificates shall not have been
surrendered prior to one year after the Effective Time (or immediately prior to
such earlier date on which (i) any ADSs, (ii) any cash in lieu of fractional
ADSs or (iii) any dividends or distributions with respect to ADSs in respect of
such Certificate or Certificates would otherwise escheat to or become the
property of any Governmental Entity (as defined in Section 3.3(b) hereof)), any
such ADSs, cash, dividends or distributions in respect of such Certificate or
Certificates shall, to the extent permitted by applicable law, become the
property of Parent, free and clear of all claims or interest of any Person
previously entitled thereto.
SECTION 1.4 TRANSFER TAXES; WITHHOLDING. If any certificate for an ADS
is to be issued to, or cash is to be remitted to, a Person (other than the
Person in whose name the Certificate surrendered in exchange therefor is
registered), it shall be a condition of such exchange that the Certificate or
Certificates so surrendered shall be properly endorsed and otherwise in proper
form for transfer and that the Person requesting such exchange shall pay to the
Exchange Agent any transfer or other Taxes (as defined in Section 3.11(b)
hereof) required by reason of the issuance of the ADSs (or cash in lieu of
fractional ADSs) to a Person other than the registered holder of the Certificate
or Certificates so surrendered, or shall establish to the satisfaction of the
Exchange Agent that such Tax either has been paid or is not applicable. Parent
or the Exchange Agent shall be entitled to deduct and withhold from the ADSs (or
cash in lieu of fractional ADSs) otherwise payable pursuant to this Agreement to
any holder of shares of Common Stock such amounts as Parent or the Exchange
Agent are required to deduct and withhold under the Code, or any provision of
state, local or foreign Tax law, with respect to the making of such payment. To
the extent that amounts are so withheld by Parent or the Exchange Agent, such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the holder of shares of Common Stock in respect of whom such
deduction and withholding was made by Parent or the Exchange Agent.
SECTION 1.5 STOCK OPTIONS.
(a) Each option granted to a Company employee, consultant or director
of the Company or any Subsidiary of the Company to acquire shares of Common
Stock, which is outstanding immediately prior to the Effective Time ("OPTION")
shall become and represent an option to purchase a number of ADSs (a "SUBSTITUTE
OPTION"), determined by multiplying (i) the number of shares of Common Stock
subject to such Option immediately prior to the Effective Time by (ii) the
Exchange Ratio (rounded to the nearest whole ADS), at an exercise price per ADS
(rounded to the nearest whole cent) equal to the exercise price per share of
Common Stock subject to the Option immediately prior to the Effective Time
divided by the Exchange Ratio; PROVIDED, HOWEVER, that in the case of an Option
that is intended to qualify as an incentive stock option under Section 422 of
the Code, the conversion formula shall be adjusted if necessary to conform with
Section 424(a) of the Code. After the Effective Time, each Substitute Option
shall be exercisable upon the same terms and conditions as were applicable to
the related Option prior to the
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Effective Time subject to accelerated vesting if and to the extent provided in
the applicable plans as of the date hereof. Parent shall take such corporate
action as may be necessary or appropriate to, as soon as practicable, but in no
event more than five business days following the Effective Time, file a
registration statement on Form S-8 (or any successor or other appropriate form)
with respect to the ADSs subject to any Substitute Option to the extent such
registration is required under applicable law in order for such ADSs to be sold
without restriction in the United States, and Parent shall use commercially
reasonable efforts to maintain the effectiveness of such registration statement
for so long as such Substitute Option remains outstanding.
SECTION 1.6 LOST CERTIFICATES. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the Person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such Person of a bond, in such
reasonable amount as the Surviving Corporation may direct, as indemnity against
any claim that may be made against it with respect to such Certificate, the
Exchange Agent will issue in exchange for such lost, stolen or destroyed
Certificate the ADSs to which the holder thereof is entitled pursuant to this
Article I.
SECTION 1.7 MERGER CLOSING. Subject to the satisfaction or waiver of the
conditions set forth in Article VI hereof, the closing of the Merger (the
"CLOSING") will take place at 10:00 a.m., California time, on a date to be
specified by the parties hereto, and no later than the second business day after
the satisfaction or waiver of the conditions set forth in Article VI hereof, at
the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650
Page Mill Road, Palo Alto, California, unless another time, date or place is
agreed to by the parties hereto (such date, the "CLOSING DATE").
SECTION 1.8 STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of the Company shall be closed and there shall be no further
registration of transfers of Shares thereafter on the records of the Company.
From and after the Effective Time, the holders of Certificates shall cease to
have any rights with respect to shares of Common Stock, except as otherwise
provided in this Agreement or by applicable law.
SECTION 1.9 RESTRICTED STOCK. Any unvested shares of restricted stock
shall be converted into ADSs pursuant to Section 1.2(c) hereof and shall
continue to vest upon the same terms and conditions as under the applicable Plan
and/or restricted stock agreement.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 ARTICLES OF INCORPORATION. At the Effective Time, the
Articles of Incorporation of Merger Sub, as in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended as provided by law and such Articles of
Incorporation of the Surviving Corporation; PROVIDED, HOWEVER, that at the
Effective Time the Articles of Incorporation of the Surviving Corporation shall
be amended so
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that the name of the Surviving Corporation shall be "Genesys Telecommunications
Laboratories, Inc."
SECTION 2.2 BY-LAWS. The by-laws of Merger Sub in effect at the
Effective Time shall be the by-laws of the Surviving Corporation until
thereafter amended in accordance with applicable law, the articles of
incorporation of such entity and the by-laws of such entity.
SECTION 2.3 OFFICERS AND DIRECTORS.
(a) From and after the Effective Time, the officers of the Company at
the Effective Time shall be the officers of the Company, until their respective
successors are duly elected or appointed and qualified in accordance with
applicable law.
(b) The Board of Directors of the Company effective as of, and
immediately following, the Effective Time shall consist of the directors of
Merger Sub immediately prior to the Effective Time.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub, subject to
such exceptions as are specifically disclosed in writing in the disclosure
letter previously supplied by the Company to Parent, which disclosure shall
provide an exception to or otherwise qualify the representations or warranties
of Company specifically referred to in such disclosure and such other
representations and warranties to the extent such disclosure shall reasonably
appear to be applicable to such other representations or warranties (the
"COMPANY DISCLOSURE SCHEDULE") as follows:
SECTION 3.1 CORPORATE EXISTENCE AND POWER. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of California, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals (collectively, "LICENSES") required to
carry on its business as now conducted except for failures to have any such
License which would not, in the aggregate, have a Company Material Adverse
Effect (as defined below). The Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned, leased or operated by it or the nature of its
activities makes such qualification necessary, except in such jurisdictions
where failures to be so qualified would not reasonably be expected to, in the
aggregate, have a Company Material Adverse Effect. As used herein, the term
"COMPANY MATERIAL ADVERSE EFFECT" means a material adverse effect on the
financial condition, business, assets or results of operations of the Company
and its Subsidiaries, taken as a whole, PROVIDED, HOWEVER, that in no event
shall any effect that results from (x) the public announcement or pendency of
the transactions contemplated hereby or any actions taken in compliance with
this Agreement, (y) changes affecting the telecommunications and enterprise
communications software industries generally and which do not disproportionately
materially affect the Company or (z) changes affecting the United States economy
generally, constitute a Company Material Adverse Effect. The Company has
heretofore
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made available to Parent true and complete copies of the Articles of
Incorporation and the by-laws of the Company as currently in effect. The
Company's Articles of Incorporation and bylaws are in full force and effect. The
Company is not in violation of any of the provisions of the Company's Articles
of Incorporation or its bylaws.
SECTION 3.2 CORPORATE AUTHORIZATION.
(a) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and, subject to approval of the Company's
shareholders, as set forth in Section 3.2(b) hereof and as contemplated by
Section 5.3 hereof, to perform its obligations hereunder and consummate the
Merger and the other transactions contemplated hereunder. The execution and
delivery of this Agreement and the performance of its obligations hereunder and
the consummation of the Merger and the other transactions contemplated hereby
have been duly and validly authorized, and this Agreement has been approved, by
the Board of Directors of the Company and no other corporate proceedings, on the
part of the Company, other than the approval of the Company's shareholders, are
necessary to authorize the execution, delivery and performance of this Agreement
and the consummation of the Merger and the other transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company and
constitutes, assuming due authorization, execution and delivery of this
Agreement by Parent and Merger Sub, a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
(b) Under applicable law, the Articles of Incorporation and the rules
of the Nasdaq, the affirmative vote of the holders of a majority of the shares
of Common Stock outstanding on the record date, established by the Board of
Directors of the Company in accordance with the by-laws of the Company,
applicable law and this Agreement, is the only vote required to approve the
Merger and adopt this Agreement.
SECTION 3.3 CONSENTS AND APPROVALS; NO VIOLATIONS.
(a) Neither the execution and delivery of this Agreement nor the
performance by the Company of its obligations hereunder will (i) conflict with
or result in any breach of any provision of the Articles of Incorporation or the
by-laws of the Company; (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration or obligation to
repurchase, repay, redeem or acquire or any similar right or obligation) under
any of the terms, conditions or provisions of any note, mortgage, letter of
credit, other evidence of indebtedness, guarantee, license, lease or agreement
or similar instrument or obligation to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their assets may be
bound or (iii) assuming that the filings, registrations, notifications,
authorizations, consents and approvals referred to in subsection (b) below have
been obtained or made, as the case may be, violate any order, injunction,
decree, statute, rule or regulation of any Governmental Entity to which the
Company or any of its Subsidiaries is subject, excluding from the foregoing
clauses (ii) and (iii) such requirements, defaults, breaches, rights or
violations (A) that would not, in the aggregate, reasonably be expected to have
a Company Material Adverse Effect (without giving effect to clause (x) of the
definition of Company Material Adverse Effect) and would not have a material
adverse effect on, or materially delay, the ability of the
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Company to perform its obligations hereunder or (B) that become applicable as a
result of the business or activities in which Parent or Merger Sub or any of
their respective affiliates is or proposes to be engaged or any acts or
omissions by, or facts specifically pertaining to, Parent or Merger Sub.
(b) No filing or registration with, notification to, or authorization,
consent or approval of, any government or any agency, court, tribunal,
commission, board, bureau, department, political subdivision or other
instrumentality of any government (including any regulatory or administrative
agency), whether federal, state, multinational (including, but not limited to,
the European Community), provincial, municipal, domestic or foreign (each, a
"GOVERNMENTAL ENTITY") is required in connection with the execution and delivery
of this Agreement by the Company or the performance by the Company of its
obligations hereunder, except (i) the filing of the Articles of Merger in
accordance with the CCC and filings to maintain the good standing of the
Surviving Corporation; (ii) compliance with any applicable requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder (the "HSR ACT"), the EC Merger Regulations (as
defined below) or any foreign laws regulating competition, antitrust, investment
or exchange controls; (iii) compliance with any applicable requirements of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(the "SECURITIES ACT") and the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (the "EXCHANGE ACT"); (iv) compliance with
any applicable requirements of state blue sky or takeover laws and (v) such
other consents, approvals, orders, authorizations, notifications, registrations,
declarations and filings (A) the failure of which to be obtained or made would
not, in the aggregate, reasonably be expected to have a Company Material Adverse
Effect and would not have a material adverse effect on, or materially delay, the
ability of the Company to perform its obligations hereunder or (B) that become
applicable as a result of the business or activities in which Parent or Merger
Sub or any of their respective affiliates is or proposes to be engaged or any
acts or omissions by, or facts specifically pertaining to, Parent or Merger Sub.
For purposes of this Agreement, "EC MERGER REGULATIONS" mean Council Regulation
(EEC) No. 4064/89 of December 21, 1989 on the Control of Concentrations Between
Undertakings, OJ (1989) L 395/1 ,as amended, and the regulations and decisions
of the Commission of the European Community or other organs of the European
Union or European Community implementing such regulations.
SECTION 3.4 CAPITALIZATION. The authorized capital stock of the Company
consists of 120,000,000 shares of Common Stock and 5,000,000 shares of preferred
stock, no par value, of the Company (the "PREFERRED STOCK"). As of September 24,
1999, there were (i) 25,374,145 shares of Common Stock issued and outstanding
and (ii) no shares of Preferred Stock issued and outstanding. All shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and were not issued in violation of any
preemptive rights. As of September 24, 1999, there were outstanding Options to
purchase 11,966,169 shares of Common Stock. The Company has provided to Parent
schedules detailing each outstanding Option, the name of the holder of such
Option, the number of shares of Common Stock subject to such Option, the
exercise price of such Option and the vesting schedule of such Option, including
the extent vested to date and whether the exercisability of such Option will be
accelerated and become exercisable by the transactions contemplated by this
Agreement. Except as set forth in this Section 3.4 and except for changes since
September 24, 1999, resulting from the exercise of Options outstanding on such
date,
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there are outstanding (i) no shares of capital stock or other voting securities
of the Company, (ii) no securities of the Company or any Subsidiary of the
Company convertible into or exchangeable for shares of capital stock or voting
securities of the Company and (iii) no options or other rights to acquire from
the Company, and no obligation of the Company to issue, any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company (the items in clauses (i), (ii) and
(iii) being referred to collectively as the "COMPANY SECURITIES"). There are no
outstanding obligations of the Company or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any Company Securities. No Subsidiary of the Company
owns any capital stock or other voting securities of the Company. There are no
outstanding contractual obligations of the Company to provide funds to, or make
any investment (in the form of a loan, capital contribution or otherwise) in,
any other Person.
SECTION 3.5 SUBSIDIARIES.
(a) Each Subsidiary of the Company that is actively engaged in any
business or owns any material assets (each, an "ACTIVE COMPANY SUBSIDIARY") (i)
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, (ii) has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and (iii) is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction where the character of the property owned or leased by it or the
nature of its activities makes such qualification necessary, except for failures
of this representation and warranty to be true which would not, in the
aggregate, have a Company Material Adverse Effect. For purposes of this
Agreement, "SUBSIDIARY" means with respect to any Person, any corporation or
other legal entity of which such Person owns, directly or indirectly, more than
50% of the outstanding stock or other equity interests, the holders of which are
entitled to vote for the election of the board of directors or other governing
body of such corporation or other legal entity. All Active Company Subsidiaries
and their respective jurisdictions of incorporation and the percentage of each
such Subsidiary's outstanding capital stock or equity interest owned by the
Company are identified in Schedule 3.5 of the Company Disclosure Schedule.
(b) All of the outstanding shares of capital stock of each Subsidiary
of the Company are duly authorized, validly issued, fully paid and
nonassessable, and such shares are owned by the Company or by a Subsidiary of
the Company free and clear of any Liens (as defined hereafter) or limitations on
voting rights. There are no subscriptions, options, warrants, calls, rights,
convertible securities or other agreements or commitments of any character
relating to the issuance, transfer, sale, delivery, voting or redemption
(including any rights of conversion or exchange under any outstanding security
or other instrument) for any of the capital stock or other equity interests of
any of such Subsidiaries. There are no agreements requiring the Company or any
of its Subsidiaries to make contributions to the capital of, or lend or advance
funds to, any Subsidiaries of the Company. For purposes of this Agreement,
"LIEN" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset.
SECTION 3.6 SEC DOCUMENTS. The Company has filed all required reports,
proxy statements, registration statements, forms and other documents with the
SEC since June 17, 1997 (the "COMPANY SEC DOCUMENTS"). As of their respective
dates, and giving effect to any amendments thereto, (a) the Company SEC
Documents complied in all material respects with the
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requirements of the Securities Act or the Exchange Act, as the case may be, and
the applicable rules and regulations of the SEC promulgated thereunder and (b)
none of the Company SEC Documents contained any untrue statement of a material
fact or omitted to state any 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. No forms, reports and documents
filed after the date of this Agreement and prior to the Effective Time by the
Company will contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. No Subsidiary of the Company is required to file any form,
report or other document with the SEC.
SECTION 3.7 FINANCIAL STATEMENTS. The financial statements of the
Company (including, in each case, any notes and schedules thereto) included in
the Company SEC Documents (a) were prepared from the books and records of the
Company and its Subsidiaries, (b) comply as to form in all material respects
with all applicable accounting requirements and the rules and regulations of the
SEC with respect thereto, (c) are in conformity with United States generally
accepted accounting principles ("GAAP"), applied on a consistent basis (subject
to normal year-end audit adjustments in the case of unaudited statements, as
permitted by Form 10-Q as filed with the SEC under the Exchange Act) during the
periods involved and (d) fairly present, in all material respects, the
consolidated financial position of the Company and its consolidated Subsidiaries
as of the dates thereof and the consolidated results of their operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal and recurring year-end audit adjustments which were not
and are not expected to be, individually or in the aggregate, material in
amount).
SECTION 3.8 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in
the Company SEC Documents filed prior to the date hereof, and except for
liabilities and obligations incurred in the ordinary course of business since
the date of the most recent consolidated balance sheet included in the Company
SEC Documents, neither the Company nor any of its Subsidiaries has any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) except for those that would not, in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.
SECTION 3.9 PROXY STATEMENT; FORM F-4.
(a) None of the information contained in the Proxy Statement (defined
in Section 5.3(c)) (and any amendments thereof or supplements thereto) will, at
the time of the mailing of the Proxy Statement to the shareholders of the
Company, at the Effective Time and at the time of the Special Meeting (defined
in Section 5.3(a)), contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except that no representation is made by the Company with
respect to statements made or omitted in the Proxy Statement relating to Parent
or Merger Sub based on information supplied by Parent for inclusion in the Proxy
Statement. The Proxy Statement will comply as to form in all material respects
with the provisions of the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation is made by the Company
with respect to the statements made or
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omitted in the Proxy Statement relating to Parent or Merger Sub based on
information supplied by Parent for inclusion in the Proxy Statement.
(b) None of the information supplied or to be supplied by the Company
for inclusion or incorporation by reference in the registration statement on
Form F-4 (and/or such other form as may be applicable and used) to be filed with
the SEC in connection with the issuance of ADSs and, if applicable, the deemed
issuance, if any, of shares of Common Stock by reason of the transactions
contemplated by this Agreement (such registration statement, as it may be
amended or supplemented, is herein referred to as the "FORM F-4") will, with
respect to information relating to the Company, at the time the Form F-4 is
filed with the SEC, and at any time it is amended or supplemented or at the time
it becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
SECTION 3.10 ABSENCE OF MATERIAL ADVERSE CHANGES, ETC. Except as set
forth in the Company SEC Documents filed prior to the date hereof, since June
30, 1999, there has not been a Company Material Adverse Effect. Without limiting
the foregoing, except as disclosed in the Company SEC Documents filed by the
Company prior to the date hereof or as contemplated by this Agreement, since
June 30, 1999, (i) the Company and its Subsidiaries have conducted their
business in the ordinary course of business and (ii) there has not been:
(a) any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of the Company, or any
repurchase, redemption or other acquisition by the Company or any Subsidiary
(other than any wholly-owned Subsidiary) of the Company of any outstanding
shares of capital stock or other equity securities of, or other ownership
interests in, the Company or of any Company Securities;
(b) any amendment of any provision of the Articles of Incorporation or
by-laws of, or of any material term of any outstanding security issued by, the
Company or any Subsidiary (other than any wholly-owned Subsidiary) of the
Company;
(c) any incurrence, assumption or guarantee by the Company or any
Subsidiary of the Company of any indebtedness for borrowed money other than
borrowings under existing short term credit facilities not in excess of $100,000
in the aggregate;
(d) any change in any method of accounting or accounting practice by
the Company or any Subsidiary of the Company, except for any such change
required by reason of a change in GAAP;
(e) any (i) grant of any severance or termination pay to any director,
officer or employee of the Company or any Subsidiary of the Company, (ii)
employment, deferred compensation or other similar agreement (or any amendment
to any such existing agreement) with any director, officer or employee of the
Company or any Subsidiary of the Company entered into, (iii) increase in
benefits payable under any employee benefit plan or any severance or termination
pay policies or employment agreements or (iv) increase in compensation, bonus or
other benefits
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payable to directors, officers or employees of the Company or any Subsidiary of
the Company, in each case other than in the ordinary course of business
consistent with past practices;
(f) any issuance of Company Securities other than pursuant to the
exercise of Options outstanding as of June 30, 1999 and the issuance of Options
after such date exercisable for not more than 750,000 shares of Common Stock and
the issuance of Company Securities pursuant thereto;
(g) any acquisition, disposition or exclusive license of assets
material to the Company and its Subsidiaries or any contract or agreement that
limits or purports to limit the ability of the Company or any of its
Subsidiaries to compete in any line of business or with any person or in any
geographical area or any contract or agreement which involves or purports to
involve exclusivity arrangements or exclusive dealings to which the Company or
any of its subsidiaries is a party, except for sales of inventory in the
ordinary course of business consistent with past practice, or any acquisition or
disposition of capital stock of any third party (other than acquisitions of
noncontrolling equity interests of third parties in the ordinary course of
business where the aggregate cost of all such acquisitions and dispositions does
not exceed $250,000), or any merger or consolidation with any third party, by
the Company or any Subsidiary;
(h) any entry into any contract or agreement involving a commitment on
behalf of the Company of up to an aggregate of $250,000 other than in the
ordinary course of business;
(i) any capital expenditure, other than capital expenditures which are
not, in the aggregate, in excess of $1,000,000 for the Company and its
Subsidiaries taken as a whole;
(j) any settlement, compromise or other disposition of any claim,
action or proceeding seeking monetary damages in excess of $250,000 or otherwise
material to the Company;
(k) entry by the Company into any joint venture, partnership or
similar agreement with any person other than a wholly-owned Subsidiary; or
(l) any authorization of, or commitment or agreement to take any of,
the foregoing actions except as otherwise permitted by this Agreement.
SECTION 3.11 TAXES.
(a) (1) All federal, state, local and foreign Tax Returns (as defined
below) required to be filed by or on behalf of the Company, each of its
Subsidiaries, and each affiliated, combined, consolidated or unitary group of
which the Company or any of its Subsidiaries is a member (a "COMPANY GROUP")
have been timely filed, and all returns filed are complete and accurate except
to the extent any failure to file or any inaccuracies in filed returns would
not, individually or in the aggregate, have a Company Material Adverse Effect;
(2) all Taxes (as defined below) due and owing by the Company, any Subsidiary of
the Company or any Company Group have been paid, or adequately reserved for in
accordance with GAAP, except to the extent any failure to pay or reserve would
not, individually or in the aggregate, have a Company Material Adverse Effect;
(3) there is no presently pending and, to the knowledge of the Company,
contemplated or scheduled audit examination, deficiency, refund litigation,
proposed adjustment or matter
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in controversy which would, individually or in the aggregate, have a Company
Material Adverse Effect with respect to any Taxes due and owing by the Company,
any Subsidiary of the Company or any Company Group nor has the Company or any
Subsidiary of the Company filed any waiver of the statute of limitations
applicable to the assessment or collection of any Tax which would, individually
or in the aggregate, have a Company Material Adverse Effect; (4) all assessments
for Taxes due and owing by the Company, any Subsidiary of the Company or any
Company Group with respect to completed and settled examinations or concluded
litigation have been paid; (5) neither the Company nor any Subsidiary of the
Company is a party to any tax indemnity agreement, tax sharing agreement or
other agreement under which the Company or any Subsidiary of the Company could
become liable to another person as a result of the imposition of a Tax upon any
person, or the assessment or collection of such a Tax; and (6) the Company and
each of its Subsidiaries has complied in all material respects with all rules
and regulations relating to the withholding of Taxes.
(b) For purposes of this Agreement, (i) "TAXES" means all taxes,
levies or other like assessments, charges or fees (including estimated taxes,
charges and fees), including, without limitation, income, corporation, advance
corporation, gross receipts, transfer, excise, property, sales, use, value-
added, license, payroll, withholding, social security and franchise or other
governmental taxes or charges, imposed by the United States or any state,
county, local or foreign government or subdivision or agency thereof, and such
term shall include any interest, penalties or additions to tax attributable to
such taxes and (ii) "TAX RETURN" means any report, return, statement or other
written information required to be supplied to a taxing authority in connection
with Taxes.
SECTION 3.12 EMPLOYEE BENEFIT PLANS.
(a) Except for any plan, fund, program, agreement or arrangement that
is subject to the laws of any jurisdiction outside the United States, Schedule
3.12(a) of the Company Disclosure Schedule contains a true and complete list of
each deferred compensation, incentive compensation, and equity compensation
plan; "welfare" plan, fund or program (within the meaning of section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"));
"pension" plan, fund or program (within the meaning of section 3(2) of ERISA);
each employment, termination or severance agreement; and each other employee
benefit plan, fund, program, agreement, policy or arrangement, in each case,
that is sponsored, maintained or contributed to or required to be contributed to
by the Company or by any trade or business, whether or not incorporated (each,
an "ERISA AFFILIATE"), that together with the Company would be deemed a "single
employer" within the meaning of section 4001(b) of ERISA, or to which the
Company or an ERISA Affiliate is party, whether written or oral, for the benefit
of any employee, consultant, director or former employee, consultant or director
of the Company or any Subsidiary of the Company (the "PLANS"). Schedule 3.12(a)
of the Company Disclosure Schedule contains an accurate and complete list of the
Plans.
(b) With respect to each Plan, the Company has heretofore delivered or
made available to Parent a true and complete copy of the Plan and any amendments
thereto, all written communications regarding any Plan and relating to any
amendments to the Plan which both would result in any material liability to the
Company and are not already reflected in the applicable Plan document (or if the
Plan is not a written Plan, a description thereof), any related trust or other
funding vehicle, the most recent reports or summaries required under ERISA or
the Code, the most
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recent determination letter received from the Internal Revenue Service and any
material correspondence with the Internal Revenue Service at the Department of
Labor with respect to each Plan intended to qualify under section 401 of the
Code, the most recent annual actuarial valuations, if any, prepared by each
Plan; if the Plan is funded, the most recent annual and periodic accounting of
Plan assets; the most recent summary Plan description together with the most
recent summary of material modifications, if any, required under ERISA with
respect to each Plan; and all communications material to any employee or
employees relating to any Plan and any proposed Plan and not reflected in the
applicable Plan document, in each case, relating to any increases in benefits,
acceleration of payments or vesting schedules or other increases in benefits,
acceleration of payments or vesting schedules or other events which would result
in any material liability to the Company.
(c) Neither the Company nor any of its ERISA Affiliates has, for the
past six (6) years, maintained, established, sponsored, participated in, or
contributed to, any employee benefit plan which is subject to Part 3 of Subtitle
B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
(d) No Plan is a "multiemployer plan," as defined in section 3(37) of
ERISA, nor is any Plan a plan described in section 4063(a) of ERISA.
(e) Each Plan has been established, operated and administered in all
material respects in accordance with its terms and applicable law, including,
but not limited to, ERISA and the Code. The Company has performed in all
material respects all obligations required to be performed by it under each
Plan. There are no actions, suits or claims pending, or, to the knowledge of
the Company, threatened or anticipated (other than routine claims for benefits)
against any Plan or against the assets of any Plan. Each Plan can be amended,
terminated or otherwise discontinued after the Effective Time in accordance with
its terms (for example, including 401(k) plan vesting and the exercise of
previously granted options), without material liability to the Company, Parent
or any of their Subsidiaries (other than ordinary administration expenses
typically incurred in a termination event). There are no inquiries or
proceedings pending or, to the knowledge of the Company or any Affiliates,
threatened by the Internal Revenue Service or Department of Labor with respect
to any Plan. Neither the Company nor any ERISA Affiliate is subject to any
penalty or tax with respect to any Plan under Section 402(i) of ERISA or
Sections 4975 through 4980 of the Code.
(f) Each Plan intended to be "qualified" within the meaning of section
401(a) of the Code has received a favorable determination letter from the
Internal Revenue Service, or in the case of such a Plan for which a favorable
determination letter has not yet been received, the applicable remedial
amendment period under Section 401(b) of the Code has not expired.
(g) No Plan provides medical, surgical, hospitalization, death or
similar benefits (whether or not insured) for employees or former employees of
the Company or any Subsidiary for periods extending beyond their retirement or
other termination of service, other than (i) coverage mandated by applicable
law, (ii) death 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), dependant or other covered person. The Company has never
represented or contracted (whether in oral or written form) to any employee
(either individually or to employees as a group) that such employee(s) would
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be provided with life insurance, medical or other employee welfare benefits upon
their retirement or termination of employment, except to the extent required by
statute.
(h) There are no pending, or to the knowledge of the Company,
threatened or anticipated, material claims by or on behalf of any Plan, by any
employee or beneficiary covered under any such Plan, or otherwise involving any
such Plan (other than routine claims for benefits).
(i) The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not, either alone or in
combination with another event, (i) entitle any current or former employee or
officer of the Company or any ERISA Affiliate to severance pay, forgiveness of
indebtedness, unemployment compensation or any other payment, except as
expressly provided in this Agreement, or (ii) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee or
officer, other than payments, accelerations or increases mandated by applicable
law.
(j) No payment or benefit which may be made under the Plans will be
characterized as an "excess parachute payment" within the meaning of section
280G of the Code.
(k) To the knowledge of the Company, all employee benefit plans that
are subject to the laws of any jurisdiction outside the United States are in
material compliance with such applicable laws, including relevant Tax laws, and
the requirements of any trust deed under which they were established. Schedule
3.12(k) lists all employee benefit plans that are subject to the laws of any
jurisdiction outside the United States except for such plans that are
governmental or statutory plans. Each such plan which is required by contract
or under applicable local law to be funded has been funded at least to the
extent so required. If and to the extent any such plan is not funded, the
obligations under such plan are reflected on the books and records of the entity
maintaining the plan and on the consolidated financial statements of the
Company.
(l) The Company, in all material respects, (i) is in compliance with
all applicable foreign, federal, state and local laws, rules and regulations
respecting employment, employment practices, terms and conditions of employment
and wages and hours, in each case, with respect to employees; (ii) has withheld
all amounts required by law or by agreement to be withheld from the wages,
salaries and other payments to employees; (iii) is not liable for any arrears of
wages or any taxes or any penalty for failure to comply with any of the
foregoing; and (iv) is not liable for any payment to any trust or other fund or
to any governmental or administrative authority, with respect to unemployment
compensation benefits, social security or other benefits or obligations for
employees (other than routine payments to be made in the normal course of
business and consistent with past practice).
SECTION 3.13 LITIGATION; COMPLIANCE WITH LAWS.
(a) Except as set forth in the Company SEC Documents filed prior to
the date hereof, there is no action, suit or proceeding pending against, or to
the knowledge of the Company threatened against, the Company or any Subsidiary
of the Company or any of their respective properties before any court or
arbitrator or any Governmental Entity which would (i) reasonably be expected to
have a Company Material Adverse Effect or (ii) seek to delay or prevent the
consum-
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mation of the Merger or the other transactions contemplated by this Agreement.
Neither the Company nor any of its Subsidiaries nor any property or asset of the
Company or any of its Subsidiaries is subject to any continuing order of,
consent decree, settlement agreement or other similar written agreement with,
or, to the knowledge of the Company, continuing investigation by, any
Governmental Entity, or any material order, writ, judgment, injunction, decree,
determination or award of any court, Governmental Entity or arbitrator that
would reasonably be expected to have a Company Material Adverse Effect.
(b) The Company and its Subsidiaries are in compliance with all
applicable laws, ordinances, rules and regulations of any federal, state, local
or foreign governmental authority applicable to their respective businesses and
operations, except for such violations, if any, which, in the aggregate, would
not reasonably be expected to have a Company Material Adverse Effect. All
governmental approvals, permits and licenses (collectively, "PERMITS") required
to conduct the business of the Company and its Subsidiaries have been obtained,
are in full force and effect and are being complied with except for such
violations and failures to have Permits in full force and effect, if any, which,
individually or in the aggregate, would not reasonably be expected to have a
Company Material Adverse Effect.
SECTION 3.14 LABOR MATTERS. As of the date of this Agreement (i) there
is no labor strike, dispute, slowdown, stoppage or lockout actually pending or,
to the knowledge of the Company, threatened against the Company; (ii) to the
knowledge of the Company, no union organizing campaign with respect to the
Company's employees is underway; (iii) there is no unfair labor practice charge
or complaint against the Company pending or, to the knowledge of the Company,
threatened before the National Labor Relations Board or any similar state or
foreign agency; (iv) there is no written grievance pending relating to any
collective bargaining agreement or other grievance procedure; (v) to the
knowledge of the Company, no charges with respect to or relating to the Company
are pending before the Equal Employment Opportunity Commission or any other
agency responsible for the prevention of unlawful employment practices; and (vi)
there are no collective bargaining agreements with any union covering employees
of the Company.
SECTION 3.15 CERTAIN CONTRACTS AND ARRANGEMENTS. Each material contract
or agreement to which the Company or any of its Subsidiaries is a party or by
which any of them is bound is in full force and effect, and neither the Company
nor any of its Subsidiaries, nor, to the knowledge of the Company, any other
party thereto, is in breach of, or default under (nor does there exist any
condition which upon the passage of time or the giving of notice would cause
such a violation of or default under) any such contract or agreement, and no
event has occurred that with notice or passage of time or both would constitute
such a breach or default thereunder by the Company or any of its Subsidiaries,
or, to the knowledge of the Company, any other party thereto, except for such
failures to be in full force and effect and such breaches and defaults which, in
the aggregate, would not reasonably be expected to have a Company Material
Adverse Effect.
SECTION 3.16 ENVIRONMENTAL MATTERS.
(a) (i) "CLEANUP" means all actions required to: (A) cleanup,
remove, treat or remediate Hazardous Materials (as defined hereafter) in the
indoor or outdoor environment; (B) prevent the Release (as defined hereafter) of
Hazardous Materials so that they do not migrate,
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endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment; (C) perform pre-remedial studies and investigations and
post-remedial monitoring and care; or (D) respond to any government requests for
information or documents in any way relating to cleanup, removal, treatment or
remediation or potential cleanup, removal, treatment or remediation of Hazardous
Materials in the indoor or outdoor environment.
(ii) "ENVIRONMENTAL CLAIM" means any claim, action, cause of
action, investigation or written notice by any Person alleging potential
liability (including, without limitation, potential liability for investigatory
costs, Cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, or penalties) arising out of, based on or
resulting from (A) the presence or Release of any Hazardous Materials at any
location, whether or not owned or operated by the Company or any of its
Subsidiaries or (B) circumstances forming the basis of any violation of any
Environmental Law (as defined hereafter).
(iii) "ENVIRONMENTAL LAWS" means all federal, state, local and
foreign laws and regulations (and enforceable judicial or administrative
interpretations thereof) relating to pollution or protection of the environment,
including, without limitation, laws relating to Releases or threatened Releases
of Hazardous Materials or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, transport or handling of Hazardous
Materials.
(iv) "HAZARDOUS MATERIALS" means all substances defined as
Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and
Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Section 300.5, or
defined as such by, or regulated as such under, any Environmental Law.
(v) "RELEASE" means any release, spill, emission, discharge,
leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration
into the environment (including, without limitation, ambient air, surface water,
groundwater and surface or subsurface strata) or into or out of any property,
including the movement of Hazardous Materials through or in the air, soil,
surface water, groundwater or property.
(b) (i) To the knowledge of the Company, the Company and its
Subsidiaries are in compliance with all applicable Environmental Laws (which
compliance includes, but is not limited to, the possession by the Company and
its Subsidiaries of all permits and other governmental authorizations required
under applicable Environmental Laws, and compliance with the terms and
conditions thereof), except where failures to be in compliance would not, in the
aggregate, reasonably be expected to have a Company Material Adverse Effect.
Since January 1, 1996 and prior to the date of this Agreement, neither the
Company nor any of its Subsidiaries has received any communication (written or
oral), whether from a Governmental Entity, citizens' group, employee or
otherwise, alleging that the Company or any of its Subsidiaries is not in such
compliance, except where failures to be in compliance would not, in the
aggregate, reasonably be expected to have a Company Material Adverse Effect.
(ii) There is no Environmental Claim pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries or, to the knowledge of the Company, against any Person whose
liability for any Environmental Claim the Company or any of
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its Subsidiaries has or may have retained or assumed either contractually or by
operation of law that would reasonably be expected to have a Company Material
Adverse Effect.
(iii) There are no present or past, actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the Release or presence of any Hazardous Material that could form the basis of
any Environmental Claim against the Company or any of its Subsidiaries or, to
the knowledge of the Company, against any Person whose liability for any
Environmental Claim the Company or any of its Subsidiaries has or may have
retained or assumed either contractually or by operation of law that would in
either case, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
(iv) The Company agrees to cooperate with Parent to effect the
retention of any permits or other governmental authorizations under
Environmental Laws that will be required to permit the Company to conduct the
business as conducted by the Company and its Subsidiaries immediately prior to
the Closing Date.
(v) None of the real property owned or leased by the Company or
any Subsidiary of the Company is listed or, to the knowledge of the Company,
proposed for listing on the "National Priorities List" under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, or
any similar list of sites in the United States or any other jurisdiction
requiring investigation or Cleanup, where such listing would result in a
liability to the Company which would have a Company Material Adverse Effect.
SECTION 3.17 INTELLECTUAL PROPERTY.
(a) The Company Disclosure Schedule sets forth a list of United
States, international and foreign (i) patents and patent applications, (ii)
registered trademarks and trademark applications, and (iii) registered
copyrights and copyright applications, in each case owned by the Company and its
Subsidiaries and material to the business of the Company and its Subsidiaries
("Company Registered Intellectual Property"). Such list is only true and
----------------------------------------
complete as of the Effective Date as to patents and patent applications.
(b) To the knowledge of the Company and its Subsidiaries, the Company
and its Subsidiaries own or have the right to use all Intellectual Property (as
defined hereafter) material to the conduct of their businesses as currently
conducted and as currently anticipated to be conducted until Closing.
(c) (i) All registrations relating to the Company Registered
Intellectual Property are subsisting, unexpired and free of liens and
encumbrances; (ii) to the knowledge of the Company and its Subsidiaries, the
operation of the business of the Company and its Subsidiaries as currently
conducted and currently anticipated to be conducted until Closing does not
infringe the Intellectual Property of any third party and no such claim is
pending or threatened; (iii) no final judgment, decree, injunction, rule or
order has been rendered by any Governmental Entity or arbitral body that would
restrict the Company's or its Subsidiaries' rights to use any Intellectual
Property owned by the Company or its Subsidiaries; and (iv) neither the Company
nor its Subsidiaries have received notice of any pending suit, action or
administrative proceeding that seeks to invalidate any
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Intellectual Property owned by the Company or its Subsidiaries; and (v) to the
Company's knowledge, the consummation of the transactions contemplated by this
Agreement will not result in the termination of any of the Company or Subsidiary
owned or licensed Intellectual Property, except where such termination will not
have a Company Material Adverse Effect.
(d) To the knowledge of the Company and its Subsidiaries, no person
is engaging in any activity that infringes any Intellectual Property owned by
the Company and its Subsidiaries.
(e) The Company and its Subsidiaries have made available to Parent
copies of all material agreements relating to Licensed Intellectual Property (as
defined in Section 3.17(f)(ii) below). With respect to each such material
agreement:
(i) Subject to the obtaining of any necessary third-party
consents set forth in the Company Disclosure Schedule, such agreement will not
cease to be in full force and effect on its terms as a result of the
consummation of the transactions contemplated by this Agreement, nor will the
consummation of the transactions contemplated by this Agreement permit
acceleration of or constitute a breach or default under such agreement or
otherwise give rise to a right to terminate such agreement, except where such
acceleration, breach, default or termination is not anticipated to have a
Company Material Adverse Effect;
(ii) Neither the Company nor its Subsidiaries have (A) received
any notice of acceleration, termination or cancellation under such agreement,
nor (B) received any notice of breach or default under such agreement, which
breach has not been cured;
(iii) To the knowledge of the Company and its Subsidiaries,
neither the Company, its Subsidiaries, nor any other party to such agreement is
in breach or default thereof in any material respect, and no event has occurred
that, with notice or lapse of time, would constitute such a breach or default or
permit termination, modification or acceleration under such agreement; and
(iv) To the Company's knowledge, such agreement is valid and
binding and in full force and effect.
(f) The Company and its Subsidiaries have taken reasonable steps in
accordance with industry practice to maintain the confidentiality of their trade
secrets and other confidential information of the Company and its Subsidiaries.
To the knowledge of the Company and its Subsidiaries: (i) no person has
misappropriated any material trade secrets or other material confidential
information owned by the Company and its Subsidiaries; and (ii) no employee,
independent contractor or agent of the Company and its Subsidiaries has
misappropriated any trade secrets of any other person in the course of such
performance as an employee; and (iii) no employee, independent contractor or
agent of the Company and its Subsidiaries is in breach of any material term of
any employment agreement, non-disclosure agreement or assignment of invention
agreement relating to the protection or ownership of Intellectual Property
material to the business of the Company and its Subsidiaries.
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(g) To the knowledge of the Company and its Subsidiaries, the
Software is free of all viruses, worms or trojan horses that materially disrupt
its operation or have a material adverse impact on the operation of other
software programs or operating systems. To the Company's knowledge, the Company
has obtained all approvals necessary for exporting the Software outside the
United States and importing the Software into any country in which the Software
is licensed for use, and, to the Company's knowledge, all such export and import
approvals in the United States and throughout the world are valid, current,
outstanding and in full force and effect.
(h) For purposes of this Agreement:
(i) "INTELLECTUAL PROPERTY" shall mean all rights provided
---------------------
under U.S., state and foreign law relating to intellectual property, including
without limitation all: (x) (1) patents and utility models and applications
therefor and all reissues, divisions, re-examinations, renewals, extensions,
provisionals, continuations and continuations-in-part thereof; (2) copyrights
and copyrightable works, including, but not limited to, computer applications,
programs, software, databases and related items; (3) trademarks, service marks,
trade names, and trade dress, the goodwill of any business symbolized thereby,
and all common-law rights relating thereto; (4) trade secrets and other
confidential information; and (y) all registrations, applications and recordings
for any of the foregoing.
(ii) "LICENSED INTELLECTUAL PROPERTY" shall mean (x)
------------------------------
Intellectual Property or Software licensed to the Company and its Subsidiaries
by any third party, and (y) Intellectual Property and Software licensed by the
Company and its Subsidiaries to any third party.
(iii) "SOFTWARE" shall mean all computer software (i) material to
--------
the operation of the business of the Company and its Subsidiaries, or (ii)
distributed or licensed by the Company and its Subsidiaries.
SECTION 3.18 OPINION OF FINANCIAL ADVISOR. The Company has received the
opinion of Goldman, Sachs & Co. ("GOLDMAN SACHS") to the effect that, as of such
date, the consideration to be received by the holders of Common Stock pursuant
to this Agreement is fair from a financial point of view to such holders.
SECTION 3.19 BOARD RECOMMENDATION. The Board of Directors of the
Company, at a meeting duly called and held, has unanimously approved this
Agreement and (i) determined that this Agreement and the transactions
contemplated hereby, including the Merger, taken together are fair to and in the
best interests of the shareholders of the Company; and (ii) resolved to
recommend that the shareholders of the Company adopt this Agreement and approve
the Merger.
SECTION 3.20 TAX TREATMENT. Neither the Company nor any of its
affiliates has taken any action or knows of any fact, agreement, plan or other
circumstance that is reasonably likely to (i) prevent the Merger from qualifying
as a reorganization under the provisions of Section 368(a) of the Code, or (ii)
prevent the exchange of shares of Common Stock from meeting the requirements of
Treasury Regulation Section 1.367(a)-3(c)(1).
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SECTION 3.21 FINDERS' FEES. Except for Goldman Sachs, whose fees will be
paid by the Company, there is no investment banker, broker, finder or other
intermediary that might be entitled to any fee or commission from the Company,
any Subsidiary of the Company, Parent or any of Parent's affiliates upon
consummation of the transactions contemplated by this Agreement.
SECTION 3.22 AFFILIATE TRANSACTIONS. Except as set forth in the Company
SEC Documents filed prior to the date hereof, there are no material contracts,
commitments, agreements, arrangements or other transactions between the Company
or any of its Subsidiaries, on the one hand, and any (i) officer or director of
the Company or any of its Subsidiaries, (ii) record or beneficial owner of five
percent or more of the voting securities of the Company or (iii) affiliate (as
such term is defined in Regulation 12b-2 promulgated under the Exchange Act) of
any such officer, director or beneficial owner, on the other hand.
SECTION 3.23 INSURANCE. The Company has provided or made available to
Parent true, correct and complete copies of all policies of insurance to which
each of the Company and its Subsidiaries are a party or are a beneficiary or
named insured. The Company and its Subsidiaries maintain insurance coverage with
reputable insurers in such amounts and covering such risks as are in accordance
with normal industry practice for companies engaged in business similar to that
of the Company and its Subsidiaries (taking into account the cost and
availability of such insurance).
SECTION 3.24 YEAR 2000 COMPLIANCE. The Company and its Subsidiaries have
(1) undertaken an assessment of those Company Systems that could be adversely
affected by a failure to be Year 2000 Compliant, (2) developed a plan and time
line for rendering such Systems Year 2000 Compliant, and (3) to date,
implemented such plan in accordance with such timetable as would reasonably be
expected to avoid a Company Material Adverse Effect. Based on such inventory,
review and assessment, all Company Systems are Year 2000 Compliant or will be
Year 2000 Compliant as required to avoid having a Company Material Adverse
Effect. For purposes hereof, "COMPANY SYSTEMS" shall mean all computer,
hardware, software, Software, systems, and equipment (including embedded
microcontrollers in noncomputer equipment) embedded within or required to
operate the current products of the Company and its Subsidiaries, and/or
material to or necessary for the Company and its Subsidiaries to carry on its
business as currently conducted. For purposes hereof, "YEAR 2000 COMPLIANT"
means that the Company Systems provide uninterrupted millennium functionality in
that the Company Systems will record, store, process and present calendar dates
falling on or after January 1, 2000, in the same manner and with the same
functionality as the Company Systems record, store, process, and present
calendar dates falling on or before December 31, 1999.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub, jointly and severally, represent and warrant to the
Company subject to such exceptions as are specifically disclosed in writing in
the disclosure letter and referencing a specific representation supplied by
Parent to Company, which disclosure shall provide an exception to or otherwise
qualify the representations or warranties of Parent specifically referred to in
such
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disclosure and such other representations and warranties to the extent such
disclosure shall reasonably appear to be applicable to such other
representations or warranties (the "PARENT DISCLOSURE SCHEDULE"), as follows:
SECTION 4.1 CORPORATE EXISTENCE AND POWER. Each of Parent and Merger
Sub is a corporation duly incorporated (or other entity duly organized), validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has all corporate or other power, as the case may be, and all
Licenses required to carry on its business as now conducted except for failures
to have any such License which would not, in the aggregate, have a Parent
Material Adverse Effect (as defined below). Each of Parent and Merger Sub is
duly qualified to do business and is in good standing in each jurisdiction where
the character of the property owned, leased or operated by it or the nature of
its activities makes such qualification necessary, except for those
jurisdictions where failures to be so qualified would not reasonably be expected
to, in the aggregate, have a Parent Material Adverse Effect. As used herein, the
term "PARENT MATERIAL ADVERSE EFFECT" means a material adverse effect on the
financial condition, business, assets or results of operations of Parent and its
Subsidiaries, taken as a whole, PROVIDED, HOWEVER, that in no event shall any
effect that results from (x) the public announcement or pendency of the
transactions contemplated hereby or any actions taken in compliance with this
Agreement, (y) changes affecting the telecommunications industry generally and
which do not disproportionately materially affect Parent or (z) changes
affecting the economies in which such entity operates generally, constitute a
Parent Material Adverse Effect. Parent has heretofore delivered or made
available to the Company true and complete copies of the governing documents or
other organizational documents of like import, as currently in effect, of each
of Parent and Merger Sub.
SECTION 4.2 AUTHORIZATION. Each of Parent and Merger Sub has the
requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery of this Agreement
and the performance of its obligations hereunder have been duly and validly
authorized by the Boards of Directors of Parent and Merger Sub, by Parent as the
sole shareholder of Merger Sub, this Agreement has been approved by the Board of
Directors of Merger Sub, and no other proceedings on the part of Parent or
Merger Sub are necessary to authorize the execution, delivery and performance of
this Agreement. This Agreement has been duly executed and delivered by each of
Parent and Merger Sub and constitutes, assuming due authorization, execution and
delivery of this Agreement by the Company, a valid and binding obligation of
each of Parent and Merger Sub, enforceable against each of them in accordance
with its terms.
SECTION 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS.
(a) Neither the execution and delivery of this Agreement nor the
performance by each of Parent and Merger Sub of its obligations hereunder will
(i) conflict with or result in any breach of any provision of the articles of
incorporation or by-laws (or other governing or organizational documents) of
Parent or Merger Sub, as the case may be, or (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or acceleration
or obligation to repurchase, repay, redeem or acquire or any similar right or
obligation) under any of the terms, conditions or provisions of any note,
mortgage, letter of credit, other evidence of indebtedness, guarantee, license,
lease or agreement or similar instrument or obligation to which any of Parent or
Merger Sub is a party or by which
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any of them or any of their respective assets may be bound or (iii) assuming
that the filings, registrations, notifications, authorizations, consents and
approvals referred to in subsection (b) below have been obtained or made, as the
case may be, violate any order, injunction, decree, statute, rule or regulation
of any Governmental Entity to which either Parent or Merger Sub is subject,
excluding from the foregoing clauses (ii) and (iii) such requirements, defaults,
breaches, rights or violations (A) that would not, in the aggregate, reasonably
be expected to have a Parent Material Adverse Effect and would not reasonably be
expected to have a material adverse effect on the ability of either Parent or
Merger Sub to consummate the transactions contemplated hereby or (B) that become
applicable as a result of the business activities in which the Company or any of
its affiliates is or proposes to be engaged or any acts or omissions by, or
facts specifically pertaining to, the Company.
(b) No filing or registration with, notification to, or authorization,
consent or approval of, any Governmental Entity is required in connection with
the execution and delivery of this Agreement by each of Parent and Merger Sub or
the performance by any of them of their respective obligations hereunder, except
(i) the filing of the Articles of Merger in accordance with the CCC and filings
to maintain the good standing of the Surviving Corporation; (ii) compliance with
any applicable requirements of the HSR Act or the EC Merger Regulations or any
other foreign laws regulating competition, antitrust, investment or exchange
controls; (iii) compliance with any applicable requirements of the Securities
Act and the Exchange Act; (iv) compliance with any applicable requirements of
state blue sky or takeover laws; (v) the filing of a registration statement
relating to the new Parent shares to be issued in connection with the issuance
of the ADSs with the French Commission des Operations de Bourse (the "COB"); and
(vi) the approval (visa) of such registration statement by the COB and such
other consents, approvals, orders, authorizations, notifications, registrations,
declarations and filings (A) the failure of which to be obtained or made would
not reasonably be expected to have a Parent Material Adverse Effect and would
not have a material adverse effect on the ability of either Parent or Merger Sub
to perform their respective obligations hereunder or (B) that become applicable
as a result of the business or activities in which the Company or any of its
affiliates is or proposes to be engaged or any acts or omissions by, or facts
specifically pertaining to, the Company.
SECTION 4.4 CAPITALIZATION. As of June 30, 1999 there were 198,781,381
issued Parent Shares. The authorized capital stock of Merger Sub consists of
1,000 shares of common stock, no par value, of which 100 shares are outstanding,
all of which are owned by Parent. All ADSs to be issued at the Effective Time
shall be, when issued, duly authorized and validly issued and fully paid and
nonassessable and free of preemptive rights with respect thereto. As of June 30,
1999, there were outstanding options and securities convertible into or
exchangeable or exercisable for 10,718,314 Parent Shares.
SECTION 4.5 SEC DOCUMENTS. Parent has filed all required periodic
reports on Forms 20-F and 6-K with the SEC since January 1, 1997 (the "PARENT
SEC DOCUMENTS"). As of their respective dates, and giving effect to any
amendments thereto, (a) the Parent SEC documents complied in all material
respects with the requirements of the Securities Act or the Exchange Act, as the
case may be, and the applicable rules and regulations of the SEC promulgated
thereunder and (b) none of the reports on Form 20-F contained in the Parent SEC
Documents contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
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were made, not misleading. No forms, reports and documents filed after the date
of this Agreement and prior to the Effective Time by the Parent will contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not misleading. No
Subsidiary of the Parent is required to file any form, report or other document
with the SEC.
SECTION 4.6 FINANCIAL STATEMENTS. The financial statements of Parent
(including, in each case, any notes and schedules thereto) included in the
Parent SEC Documents filed prior to the date hereof (a) were prepared from the
books and records of Parent and its Subsidiaries, (b) comply as to form in all
material respects with all applicable accounting requirements and the rules and
regulations of the SEC with respect thereto and (c) are in conformity with
applicable accounting principles applied on a consistent basis (subject to
normal year-end audit adjustments in the case of unaudited statements).
SECTION 4.7 ABSENCE OF MATERIAL ADVERSE CHANGES, ETC. Since December 31,
1998 there has not been a Parent Material Adverse Effect.
SECTION 4.8 PROXY STATEMENT; FORM F-4.
(a) None of the information supplied or to be supplied by Parent or
Merger Sub, as the case may be, in writing for inclusion in the Proxy Statement
(and any amendments thereof or supplements thereto) will, with respect to
information relating to such entities, at the time of the mailing the Proxy
Statement to the shareholders of the Company, at the Effective Time and at the
time of the Special Meeting, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(b) None of the information supplied or to be supplied by Parent or
Merger Sub, as the case may be, for inclusion or incorporation by reference in
the Form F-4 will, with respect to information relating to such entities, at the
time the Form F-4 is filed with the SEC, and at any time it is amended or
supplemented or at the time it becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
SECTION 4.9 LITIGATION; COMPLIANCE WITH LAWS.
(a) Except as set forth in either the Parent SEC Documents or
otherwise fully covered by insurance, there is no action, suit or proceeding
pending against, or to the knowledge of Parent threatened against, Parent or any
Subsidiary of Parent or any of their respective properties before any court or
arbitrator or any Governmental Entity which would reasonably be expected to have
a Parent Material Adverse Effect.
(b) Parent and its Subsidiaries are in compliance with all applicable
laws, ordinances, rules and regulations of any federal, state, local or foreign
governmental authority
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applicable to their respective businesses and operations, except for such
violations, if any, which, in the aggregate, would not reasonably be expected to
have a Parent Material Adverse Effect.
SECTION 4.10 INTELLECTUAL PROPERTY.
(a) Parent and its Subsidiaries own or have the right to use all
material Intellectual Property reasonably necessary for Parent and its
Subsidiaries to conduct their business as it is currently conducted.
(b) To the knowledge of Parent: (i) Parent does not infringe the
intellectual property rights of any third party in any respect that would
reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect; (ii) no judgment, decree, injunction, rule or order has
been rendered by a Governmental Entity which would limit, cancel or question the
validity of, or Parent's or its Subsidiaries' rights in and to, any Intellectual
Property owned by Parent in any respect that would reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect; and
(iii) Parent has not received notice of any pending or threatened suit, action
or adversarial proceeding that seeks to limit, cancel or question the validity
of, or Parent's or its Subsidiaries' rights in and to, any Intellectual
Property, which would reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect.
SECTION 4.11 MERGER SUB'S OPERATIONS. Merger Sub was formed solely for
the purpose of engaging in the transactions contemplated hereby and has not (i)
engaged in any business activities, (ii) conducted any operations other than in
connection with the transactions contemplated hereby or (iii) incurred any
liabilities other than in connection with the transactions contemplated hereby.
SECTION 4.12 TAX TREATMENT. Neither Parent nor any of its affiliates has
taken any action or knows of any fact, agreement, plan or other circumstance
that is reasonably likely to (i) prevent the Merger from qualifying as a
reorganization under the provisions of Section 368(a) of the Code or (ii)
prevent the exchange of shares of Common Stock from meeting the requirements of
Treasury Regulation Section 1.367(a)-3(c)(1).
SECTION 4.13 FINDERS' FEES. Except for J.P. Morgan Securities Inc.,
whose fees will be paid by Parent, there is no investment banker, broker, finder
or other intermediary that might be entitled to any fee or commission in
connection with or upon consummation of the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Parent or Merger Sub.
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.1 CONDUCT OF THE BUSINESS OF THE COMPANY. From the date
hereof until the Closing Date, the Company and its Subsidiaries shall conduct
their businesses in the ordinary course consistent with past practice and shall
use commercially reasonable efforts to preserve intact their business
organizations and relationships with third parties and to keep available
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the services of their present officers and employees. Without limiting the
generality of the foregoing, from the date hereof until the Closing Date, the
Company will not (and will not permit any of its Subsidiaries to) take any
action or omit to take any action that would (i) make any of its representations
and warranties contained herein false to an extent that would cause the
condition set forth in Section 6.3(b) not to be satisfied or (ii) make the
representation and warranty set forth in Section 3.10 false. Furthermore, for
the avoidance of doubt, the Company will not take any of the actions specified
in Section 3.10 (as modified by the Company Disclosure Schedule) without the
prior consent of Parent.
SECTION 5.2 CONDUCT OF THE BUSINESS OF PARENT. From the date hereof
until the Closing Date, Parent will not (and will not permit any of its
Subsidiaries to) take any action or omit to take any action that would make any
of its representations and warranties contained herein false to an extent that
would cause the condition set forth in Section 6.2(b) not to be satisfied.
SECTION 5.3 SHAREHOLDERS' MEETING; PROXY MATERIAL.
(a) Subject to the last sentence of this Section 5.3(a), the Company
shall, in accordance with applicable law and the Articles of Incorporation and
the by-laws of the Company duly call, give notice of, convene and hold a special
meeting of its shareholders (the "SPECIAL MEETING") as promptly as practicable
after the date hereof for the purpose of considering and taking action upon this
Agreement and the Merger. The Board of Directors of the Company shall recommend
approval and adoption of this Agreement and the Merger by the Company's
shareholders; PROVIDED that the Board of Directors of the Company may withdraw,
modify or change such recommendation if but only if (i) it believes in good
faith that a Superior Proposal (as defined in Section 5.5 hereof) has been made
and (ii) it has determined in good faith, based on the advice of outside
counsel, that the failure to withdraw, modify or change such recommendation is
reasonably likely to result in a breach of the fiduciary duties of the Board of
Directors of the Company under applicable law. The Company shall use
commercially reasonable efforts to solicit from its shareholders proxies in
favor of the approval of this Agreement and to take all other action necessary
or advisable to secure the vote or consent of shareholders required by the CCC
to obtain such approval, except to the extent that the Board of Directors of the
Company has changed its recommendation to the shareholders of the Company with
respect to the Merger and this Agreement in accordance with this Section 5.3(a).
(b) The Proxy Statement shall include the recommendation of the Board
of Directors of the Company to the shareholders of the Company in favor of
approval of the Merger and this Agreement; PROVIDED HOWEVER, that the Board of
Directors of the Company may, prior to the Effective Time, withdraw, modify or
change any such recommendation to the extent that the Board of Directors of the
Company has changed its recommendation to the shareholders of the Company with
respect to the Merger and this Agreement in accordance with Section 5.3(a).
(c) Promptly following the date of this Agreement, the Company shall
prepare a proxy statement relating to the adoption of this Agreement and the
approval of the Merger by the Company's shareholders (the "PROXY STATEMENT"),
and Parent shall prepare and file with the SEC, following resolution of any
comments the SEC may have with respect to the Proxy Statement, the Form F-4, in
which the Proxy Statement will be included. Parent and the Company shall
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cooperate with each other in connection with the preparation of the foregoing
documents and shall furnish all information concerning such party as the other
party may reasonably request in connection with the preparation of such
documents. Parent and the Company shall each use its reasonable best efforts to
have the Form F-4 declared effective under the Securities Act as promptly as
practicable after such filing. The Company will use commercially reasonable
efforts to cause the Proxy Statement to be mailed to the Company's shareholders
as promptly as practicable after the Form F-4 is declared effective under the
Securities Act.
(d) The Company shall as promptly as practicable notify Parent of the
receipt of any comments from the SEC relating to the Proxy Statement. Each of
Parent and the Company shall as promptly as practicable notify the other of (i)
the effectiveness of the Form F-4, (ii) the receipt of any comments from the SEC
relating to the Form F-4 and (iii) any request by the SEC for any amendment to
the Form F-4 or for additional information. All filings by Parent and the
Company with the SEC in connection with the transactions contemplated hereby,
including the Proxy Statement, the Form F-4 and any amendment or supplement
thereto, shall be subject to the prior review of the other, and all mailings to
the Company's shareholders in connection with the transactions contemplated by
this Agreement shall be subject to the prior review of Parent.
SECTION 5.4 ACCESS TO INFORMATION; CONFIDENTIALITY AGREEMENT. Upon
reasonable advance notice, between the date hereof and the Closing Date, the
Company shall (i) give Parent, its respective counsel, financial advisors,
auditors and other authorized representatives (collectively, "PARENT'S
REPRESENTATIVES") reasonable access during normal business hours to the offices,
properties, books and records of the Company and its Subsidiaries, (ii) furnish
to Parent's Representatives such financial and operating data and other
information relating to the Company, its Subsidiaries and their respective
operations as such Persons may reasonably request and (iii) instruct the
Company's employees, counsel and financial advisors to cooperate with Parent in
its investigation of the business of the Company and its Subsidiaries; PROVIDED
THAT any information and documents received by Parent or Parent's
Representatives (whether furnished before or after the date of this Agreement)
shall be held in accordance with the Confidentiality Agreements dated August 17,
1999 and September 21, 1999 between Parent and the Company (the "CONFIDENTIALITY
AGREEMENTS"), which shall remain in full force and effect pursuant to the terms
thereof, notwithstanding the execution and delivery of this Agreement or the
termination hereof until the Effective Time.
SECTION 5.5 NO SOLICITATION. From the date hereof until the Effective
Time or, if earlier, the termination of this Agreement, the Company shall not
(whether directly or indirectly through advisors, agents or other
intermediaries), and the Company shall cause its respective officers, directors,
advisors, representatives or other agents of the Company not to, directly or
indirectly, (a) solicit, initiate or encourage any inquiry, offer or proposal
that constitutes an Acquisition Proposal (as defined hereafter) or (b) engage in
discussions or negotiations with, or disclose any nonpublic information relating
to the Company or its Subsidiaries or afford access to the properties, books or
records of the Company or its Subsidiaries to, any Person that has made an
Acquisition Proposal (or inquires with respect thereto) or has advised the
Company that it is interested in making an Acquisition Proposal; PROVIDED THAT,
if and only if (i) the Company's Board of Directors believes in good faith,
based on such matters as it deems relevant, including the advice of the
Company's financial advisor, that such Acquisition Proposal is a Superior
Proposal and
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(ii) the Company's Board of Directors determines in good faith, based on such
matters as it deems relevant, including the advice of the Company's outside
legal counsel, that the failure to engage in such negotiations or discussions or
provide such information is reasonably likely to result in a breach of the
fiduciary duties of the Board of Directors of the Company under applicable law,
then the Company may furnish information with respect to the Company and its
Subsidiaries and participate in negotiations regarding such Acquisition
Proposal; PROVIDED THAT the Company will not disclose any information to such
Person without (i) first entering into a confidentiality agreement on terms no
less favorable to the Company than the one entered into by Company and Parent on
August 17, 1999, and (ii) providing Parent twenty-four (24) hours notice of the
Company's intention to provide such information, PROVIDED that Company is not in
breach of this Section 5.5. The Company shall provide Parent with a copy of any
written Acquisition Proposal received and a written statement with respect to
any nonwritten Acquisition Proposal received, which statement shall include the
identity of the parties making the Acquisition Proposal and the terms thereof.
The Company shall inform Parent as promptly as practicable, and in any event
within one (1) business day, regarding any change in the terms of any
Acquisition Proposal with a third party or any other material development
regarding any Acquisition Proposal with a third party. For purposes of this
Agreement, "ACQUISITION PROPOSAL" means any offer or proposal for a merger,
consolidation, recapitalization, liquidation or other business combination
involving the Company or the acquisition or purchase of over 50% or more of any
class of equity securities of the Company, or any tender offer (including self-
tenders) or exchange offer that, if consummated, would result in any Person
beneficially owning 50% or more of any class of equity securities of the
Company, or a substantial portion of the assets of, the Company and its
Subsidiaries taken as a whole or any solicitation in opposition to approval by
the Company's shareholders of this Agreement, other than the transactions
contemplated by this Agreement. As used herein, a "SUPERIOR PROPOSAL" shall mean
an Acquisition Proposal which in the reasonable judgment of the Company's Board
of Directors, based on such matters as it deems relevant including the advice of
the Company's financial advisor, (i) is likely to result in a transaction
providing greater benefits to the Company's shareholders than those provided
pursuant to this Agreement, and (ii) is reasonably capable of being financed by
the Person making such Proposal on a timely basis. Nothing contained in this
Section 5.5 shall prohibit the Company or the Company's Board of Directors from
taking and disclosing to the Company's shareholders a position with respect to a
tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a)
promulgated under the Exchange Act or from making any disclosure required by
applicable law. The Company immediately shall cease and cause to be terminated
all existing discussions or negotiations with any parties conducted heretofore
with respect to any Acquisition Proposal. The Company agrees not to release any
third party from, or waive any provision of, any confidentiality or standstill
agreement to which it is a party unless such third party has made a Superior
Proposal.
SECTION 5.6 DIRECTOR AND OFFICER LIABILITY.
(a) Parent and the Company agree that all rights to indemnification
and all limitations on liability existing in favor of any Indemnitee (as defined
hereafter) as provided in the Articles of Incorporation or by-laws of the
Company or an agreement between an Indemnitee and the Company or a Subsidiary of
the Company as in effect as of the date hereof shall survive the Merger and
continue in full force and effect in accordance with its terms.
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(b) For six years after the Effective Time, Parent shall or shall
cause the Surviving Corporation to indemnify and hold harmless the individuals
who on or prior to the Effective Time were officers, directors, employees or
agents of the Company and any of its Subsidiaries (the "INDEMNITEES") to the
same extent as set forth in subsection (a) above. In the event any claim in
respect of which indemnification is available pursuant to the foregoing
provisions is asserted or made within such six-year period, all rights to
indemnification shall continue until such claim is disposed of or all judgments,
orders, decrees or other rulings in connection with such claim are fully
satisfied.
(c) For six (6) years after the Effective Time, the Surviving
Corporation shall provide officers' and directors' liability insurance in
respect of acts or omissions occurring prior to the Effective Time covering each
such Person currently covered by the Company's officers' and directors'
liability insurance policy on terms with respect to coverage and amount no less
favorable than those of such policy in effect on the date hereof; PROVIDED,
HOWEVER, that in no event shall the Surviving Corporation be required to expend
more than an amount per year equal to 150% of current annual premiums paid by
the Company for such insurance (the "MAXIMUM AMOUNT") to maintain or procure
insurance coverage pursuant hereto; PROVIDED, FURTHER, that if the amount of the
annual premiums necessary to maintain or procure such insurance coverage exceeds
the Maximum Amount, the Surviving Corporation shall maintain or procure, for
such six-year period, the most advantageous policies of directors' and officers'
insurance obtainable for an annual premium equal to the Maximum Amount.
(d) The obligations of Parent and the Surviving Corporation under
this Section 5.6 shall not be terminated or modified in such a manner as to
adversely affect any Indemnitee to whom this Section 5.6 applies without the
consent of such affected Indemnitee (it being expressly agreed that the
Indemnitees to whom this Section 5.6 applies shall be third party beneficiaries
of this Section 5.6).
SECTION 5.7 COMMERCIALLY REASONABLE EFFORTS. Upon the terms and subject
to the conditions of this Agreement, each party hereto shall use its
commercially reasonable efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement.
SECTION 5.8 CERTAIN FILINGS.
(a) The Company and Parent shall cooperate with one another (i) in
connection with the preparation of the Proxy Statement and the Form F-4
Registration Statement, (ii) in determining whether any action by or in respect
of, or filing with, any Governmental Entity is required, or any actions,
consents, approvals or waivers are required to be obtained from parties to any
material contracts, in connection with the consummation of the transactions
contemplated by this Agreement and (iii) in seeking any such actions, consents,
approvals or waivers or making any such filings, furnishing information required
in connection therewith or with the Proxy Statement and the Form F-4
Registration Statement and seeking timely to obtain any such actions, consents,
approvals or waivers. Without limiting the provisions of this Section 5.8, each
party hereto shall file with the Department of Justice and the Federal Trade
Commission a Pre-Merger Notification and
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Report Form pursuant to the HSR Act in respect of the transactions contemplated
hereby within ten (10) days of the date of this Agreement, and each party will
use its reasonable best efforts to take or cause to be taken all actions
necessary, including to promptly and fully comply with any requests for
information from regulatory Governmental Entities, to obtain any clearance,
waiver, approval or authorization relating to the HSR Act that is necessary to
enable the parties to consummate the transactions contemplated by this
Agreement. Without limiting the provisions of this Section 5.8, each party
hereto shall use commercially reasonable efforts to promptly make the filings
required to be made by it with all foreign Governmental Entities in any
jurisdiction in which the parties believe it is necessary or advisable.
(b) The Company and Parent shall each use commercially reasonable
efforts to resolve such objections, if any, as may be asserted with respect to
the Merger or any other transaction contemplated by this Agreement under any
Antitrust Law (as defined below). Notwithstanding anything to the contrary in
this Agreement, none of Parent, any of its Subsidiaries or the Surviving
Corporation, shall be required (and the Company shall not, without the prior
written consent of Parent, agree, but shall, if so directed by Parent, agree) to
hold separate or divest any of their respective assets or operations or enter
into any consent decree or licensing or other arrangement with respect to any of
their assets or operations.
(c) Each of the Company and Parent shall promptly inform the other
party of any material communication received by such party from the Federal
Trade Commission, the Antitrust Division of the Department of Justice, the
Commission of the European Community or any other governmental or regulatory
authority regarding any of the transactions contemplated hereby.
(d) "ANTITRUST LAW" means the Sherman Act, as amended, the Clayton
Act, as amended, EC Merger Regulations and all other federal, state and foreign
statutes, rules, regulations, orders, decrees, administrative and judicial
doctrines, and other laws that are designed or intended to prohibit, restrict or
regulate competition or actions having the purpose or effect of monopolization
or restraint of trade.
SECTION 5.9 PUBLIC ANNOUNCEMENTS. Neither the Company, Parent nor any
of their respective affiliates shall issue or cause the publication of any press
release or other public announcement with respect to the Merger, this Agreement
or the other transactions contemplated hereby without the prior consent of the
other party, except that public disclosure may be made as may be required by law
or by any listing agreement with, or the policies of, a national securities
exchange following prior consultation with the other party.
SECTION 5.10 FURTHER ASSURANCES. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of the Company or Merger Sub, any
deeds, bills of sale, assignments or assurances and to take and do, in the name
and on behalf of the Company or Merger Sub, any other actions to vest, perfect
or confirm of record or otherwise in the Surviving Corporation any and all
right, title and interest in, to and under any of the rights, properties or
assets of the Company acquired or to be acquired by the Surviving Corporation,
as a result of, or in connection with, the Merger.
SECTION 5.11 EMPLOYEE MATTERS.
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(a) For a period of one year immediately following the date of the
Closing, Parent agrees to cause the Surviving Corporation and its Subsidiaries
to provide to all active employees of the Company who continue to be employed by
the Company as of the Effective Time ("CONTINUING EMPLOYEES") coverage by
benefit plans or arrangements that are, in the aggregate, substantially
equivalent to (including, with respect to eligibility requirements, exclusions
and the employee portion of the cost of such benefit plans or arrangements) than
those provided to the employees of the Company immediately prior to the date of
the Closing (other than stock option or other equity-based plans and other than
employment, severance or similar plans and agreements).
(b) Parent shall, and shall cause the Surviving Corporation and
Parent's Subsidiaries to, honor in accordance with their terms all agreements,
contracts, arrangements, commitments and understandings described in Schedule
3.12(a) of the Company Disclosure Schedule, except as such agreements,
contracts, arrangements, commitments and understandings may be amended or waived
with the consent of the applicable employee.
(c) The holders of Options have been or will be given by the Company,
or shall have property waived, any required notice prior to the Merger and all
such rights will be terminated at or prior to the Effective Date.
SECTION 5.12 TAX-FREE REORGANIZATION TREATMENT. In the event Parent does
not exercise its election under Section 1.2(c) to convert shares of Common Stock
into cash as set forth in Section 1.2(c), each of Parent and the Company shall
take all reasonable actions necessary to cause the Merger to qualify as a
reorganization under the provisions of section 368(a) of the Code and the
exchange of shares of Common Stock pursuant to the Merger to meet the
requirements of Treasury Regulation Section 1.367(a)-3(c)(1) and to obtain the
opinions of counsel referred to in Sections 6.2(d) and 6.3(e) hereof, and
neither party will take any action inconsistent therewith.
SECTION 5.13 STATE AND FOREIGN PERMITS. Parent shall use commercially
reasonable efforts to obtain, prior to the effective date of the Form F-4
Registration Statement, all necessary state and foreign securities law permits
and approvals required to carry out the transactions contemplated by this
Agreement and the Merger, and will pay all expenses incident thereto.
SECTION 5.14 LISTING. Parent shall use commercially reasonable efforts
to cause the ADSs to be issued in the Merger or upon exercise of Substitute
Options or upon cancellation of Options to be listed on the NYSE, subject to
notice of official issuance thereof, prior to the Closing Date.
SECTION 5.15 STATE TAKEOVER LAWS. If any "fair price," "business
combination" or "control share acquisition" statute or other similar statute or
regulation is or may become applicable to the Merger, the Company and Parent
shall each take such actions as are necessary so that the transactions
contemplated by this Agreement may be consummated as promptly as practicable on
the terms contemplated hereby and otherwise act to eliminate or minimize the
effects of any such statute or regulation on the Merger.
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SECTION 5.16 CERTAIN NOTIFICATIONS. Between the date hereof and the
Effective Time, each party shall promptly notify the other party hereto in
writing after becoming aware of the occurrence of any event which will, or is
reasonably likely to, result in the failure to satisfy any of the conditions
specified in Article VI.
SECTION 5.17 AFFILIATE LETTERS. The Company shall, at least 45 days
prior to the date of the Special Meeting, deliver to Parent a list reasonably
satisfactory to Parent setting forth the names and addresses of all persons who
at the time of the Special Meeting are, in the Company's reasonable judgment,
"affiliates" of the Company for purposes of Rule 145 under the Securities Act.
The Company shall furnish such information and documents as Parent may
reasonably request for the purpose of reviewing such list. The Company shall use
its reasonable best efforts to cause each person who is identified as an
affiliate on such list to execute a written agreement at least 30 days prior to
the date of the Special Meeting in the form of Exhibit A hereto (collectively,
the "AFFILIATE AGREEMENTS").
SECTION 5.18 POOLING. From and after the date of this Agreement and
until the Effective Time, neither Parent nor the Company, nor any of their
respective Subsidiaries or other affiliates, shall knowingly take any action, or
knowingly fail to take any action, that is reasonably likely to jeopardize the
treatment of the Merger as a French "pooling of interests" for accounting
purposes. Between the date of this Agreement and the Effective Time, Parent and
the Company each shall take all reasonable actions necessary to cause the
characterization of the Merger as a French "pooling of interests" for accounting
purposes if such a characterization were jeopardized by action taken by Parent
or the Company, respectively, prior to the Effective Time. Notwithstanding
anything to the contrary in this Agreement, no action or omission shall be
required on the part of the Company or any of its affiliates pursuant hereto if
the Company or any such affiliate determines, in good faith, that such action or
omission could be detrimental (other than to a de minimus extent) to the Company
or such affiliate.
SECTION 5.19 LETTERS OF ACCOUNTANTS. Parent shall use commercially
reasonable efforts to cause to be delivered to the Company "comfort" letters of
Arthur Andersen LLP, Parent's independent public accountants, dated and
delivered the date on which the Form F-4 shall become effective and as of the
Effective Time, and addressed to the Company, in form and substance reasonably
satisfactory to the Company and reasonably customary in scope and substance for
letters delivered by independent public accountants in connection with
transactions such as those contemplated by this Agreement.
(a) The Company shall use commercially reasonable efforts to cause to
be delivered to Parent "comfort" letters of Arthur Andersen LLP, the Company's
independent public accountants, dated and delivered the date on which the Form
F-4 shall become effective and as of the Effective Time, and addressed to
Parent, in form and substance reasonably satisfactory to Parent and reasonably
customary in scope and substance for letters delivered by independent public
accountants in connection with transactions such as those contemplated by this
Agreement.
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ARTICLE VI
CONDITIONS TO THE MERGER
SECTION 6.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of the Company, Parent and Merger Sub to consummate the Merger are
subject to the satisfaction or, to the extent permitted by applicable law, the
waiver on or prior to the Effective Time of each of the following conditions:
(a) This Agreement shall have been adopted, and the Merger approved,
by the shareholders of the Company in accordance with applicable law;
(b) Any applicable waiting periods under the HSR Act and the EC
Merger Regulation relating to the Merger shall have expired or been terminated;
(c) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Merger or the
other transactions contemplated by this Agreement;
(d) The Form F-4 shall have become effective under the Securities Act
and shall not be the subject of any stop order or proceedings seeking a stop
order, and any material "blue sky," other state, federal and foreign securities
laws applicable to the registration and qualification of the ADSs and the Parent
Shares following the Closing shall have been complied with (including visas of
the COB); and
(e) The ADSs issuable in accordance with the Merger shall have been
approved for listing on the NYSE, subject to official notice of issuance.
SECTION 6.2 CONDITIONS TO THE COMPANY'S OBLIGATION TO CONSUMMATE THE
MERGER. The obligation of the Company to consummate the Merger shall be further
subject to the satisfaction or, to the extent permitted by applicable law, the
waiver on or prior to the Effective Time of each of the following conditions:
(a) Parent and Merger Sub shall each have performed in all material
respects its respective agreements and covenants contained in or contemplated by
this Agreement that are required to be performed by it at or prior to the
Effective Time pursuant to the terms hereof;
(b) The representations and warranties of Parent and Merger Sub
contained in Article IV hereof (without giving effect to any materiality
qualifications or limitations therein or any references therein to Parent
Material Adverse Effect) shall be true and correct in all respects as of the
Effective Time (or, to the extent such representations and warranties speak as
of an earlier date, they shall be true in all respects as of such earlier date),
except (i) as otherwise contemplated by this Agreement and (ii) for such
failures to be true and correct which in the aggregate would not reasonably be
expected to have a Parent Material Adverse Effect;
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<PAGE>
(c) The Company shall have received certificates signed by any senior
executive vice president of Parent, dated the Closing Date, to the effect that,
to such officer's knowledge, the conditions set forth in Sections 6.2(a) and
6.2(b) hereof have been satisfied or waived; and
(d) In the event Parent does not exercise its election under Section
1.2(c) to convert shares of Common Stock into cash as set forth in Section
1.2(c), the Company shall have received an opinion of Wilson Sonsini Goodrich &
Rosati, Professional Corporation, its tax counsel, in form and substance
reasonably satisfactory to it, to the effect that the Merger will constitute a
reorganization for United States federal income tax purposes within the meaning
of Section 368(a) of the Code and that Parent, Merger Sub and the Company are
each parties to a reorganization and such opinion shall not have been withdrawn
prior to the Effective Time; PROVIDED, HOWEVER, that if Wilson Sonsini Goodrich
& Rosati, Professional Corporation does not render such opinions, this condition
shall nonetheless be deemed to be satisfied with respect to Company if Shearman
& Sterling renders such opinions to Company. The Company agrees to make such
reasonable representations related to the requirements of Section 368 and 367 of
the Code as may be requested by tax counsel in connection with the opinions
referred to above.
SECTION 6.3 CONDITIONS TO PARENT'S AND MERGER SUB'S OBLIGATIONS TO
CONSUMMATE THE MERGER. The obligations of Parent and Merger Sub to effect the
Merger shall be further subject to the satisfaction, or to the extent permitted
by applicable law, the waiver on or prior to the Effective Time of each of the
following conditions:
(a) The Company shall have performed in all material respects each of
its agreements and covenants contained in or contemplated by this Agreement that
are required to be performed by it at or prior to the Effective Time pursuant to
the terms hereof (except for those agreements set forth in Section 5.18);
(b) The representations and warranties of the Company contained in
Article III hereof (without giving effect to any materiality qualifications or
limitations therein or any references therein to Company Material Adverse
Effect) shall be true and correct in all respects as of the Effective Time (or,
to the extent such representations and warranties speak as of an earlier date,
they shall be true in all respects as of such earlier date), except (i) as
otherwise contemplated by this Agreement and (ii) for such failures to be true
and correct which in the aggregate would not reasonably be expected to have a
Company Material Adverse Effect;
(c) Parent shall have received a certificate signed by the chief
executive officer of the Company, dated the Closing Date, to the effect that, to
such officer's knowledge, the conditions set forth in Sections 6.3(a) and 6.3(b)
hereof have been satisfied or waived;
(d) All foreign laws regulating competition, antitrust, investment or
exchange control shall have been complied with, and all approvals required under
such foreign laws shall have been received;
(e) In the event Parent does not exercise its election under Section
1.2(c) to convert shares of Common Stock into cash as set forth in Section
1.2(c). Parent shall have received an opinion of Shearman & Sterling, its tax
counsel, in form and substance reasonable satisfactory to
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<PAGE>
it, to the effect that the Merger will constitute a reorganization for United
States federal income tax purposes within the meaning of Section 368(a) of the
Code and that Parent, Merger Sub and the Company are each parties to a
reorganization and such opinion shall not have been withdrawn prior to the
Effective Time PROVIDED, HOWEVER, that if Shearman & Sterling does not render
such opinions, this condition shall nonetheless be deemed to be satisfied with
respect to Parent and Merger Sub if Wilson Sonsini Goodrich & Rosati,
Professional Corporation renders such opinions to Parent. Parent and Merger Sub
agree to make such reasonable representations related to the requirements of
Section 368 and 367 of the Code as may be requested by tax counsel in connection
with the opinions referred to above; and
(f) Each of the individuals listed on Schedule 6.3(f) shall have
executed an employment agreement concurrently with the execution and delivery of
this Agreement, and such employment agreement shall be in full force and effect
at the Effective Time.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION. Notwithstanding anything herein to the contrary,
this Agreement may be terminated and the transactions contemplated by this
Agreement may be abandoned at any time prior to the Closing Date, whether before
or after the Company has obtained shareholder approval:
(a) by the mutual written consent of the Company and Parent;
(b) by either the Company or Parent, if the Merger has not been
consummated by May 31, 2000, or such other date, if any, as the Company and
Parent shall agree upon; provided, that the party seeking to terminate this
Agreement pursuant to this Section 7.1(b) shall not have breached in any
material respect its obligations under this Agreement;
(c) by either the Company or Parent, if there shall be any law or
regulation that makes consummation of the transactions contemplated by this
Agreement illegal or if any judgment, injunction, order or decree enjoining
Parent, Merger Sub or the Company from consummating the transactions
contemplated by this Agreement is entered and such judgment, injunction, order
or decree shall have become final and nonappealable;
(d) by Parent, if (i) the Board of Directors of the Company shall
have withheld, withdrawn or modified or amended in any respect adverse to Parent
or Merger Sub its approval or recommendation of the Merger or shall have
resolved to do so, or shall have entered into any letter of intent or similar
document or any agreement, contract or commitment accepting any Acquisition
Proposal (ii) the Board of Directors of the Company shall have recommended to
the shareholders of the Company any Acquisition Proposal or shall have resolved
or announced an intention to do so, or (iii) a tender offer, exchange offer for
50% or more of the outstanding shares of the Company Common Stock is announced
or commenced and, either (A) the Board of Directors of the Company recommends
acceptance of such tender offer or exchange offer by its shareholders or (B)
within (i)
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<PAGE>
ten (10) business days of such commencement or (ii) in any event, at least three
(3) business days prior to the shareholder meeting, the Board of Directors of
the Company shall have failed to recommend against acceptance of such tender
offer or exchange offer by its shareholders (including by taking no position
with respect to the acceptance of such tender offer or exchange offer by its
stockholders), (iv) the Company shall have failed to include in the Proxy
Statement the recommendation of the Company's Board of Directors in favor of the
approval of the Merger or this Agreement, (v) the Company's Board of Directors
shall have failed to reaffirm its recommendation in favor of the approval of the
Merger and this Agreement within ten business days after the announcement of an
Acquisition Proposal and Parent's written request for such reaffirmation in
connection therewith (unless such announcement shall have occurred less than ten
business days prior to the Special Meeting, in which case such reaffirmation
shall occur as soon as practicable, and if so practicable, in advance of the
Special Meeting), or (vi) the Company shall have breached its obligations under
Section 5.5 in any respect;
(e) by either the Company or Parent, if the approval of the
shareholders of the Company of the Merger and the adoption of this Agreement
shall not have been obtained at a duly held meeting of shareholders of the
Company or any adjournment thereof;
(f) by Parent, upon a breach of any representation, warranty,
covenant or agreement on the part of the Company set forth in this agreement, or
if any representation or warranty of the Company shall have become untrue,
incomplete or incorrect, in either case such that the conditions set forth in
Section 6.3(a) or (b) would not be satisfied (a "TERMINATING COMPANY BREACH");
provided, however, that if such Terminating Company Breach is curable by the
Company through the exercise of commercially reasonable efforts within 30 days
and for so long as the Company continues to exercise such reasonable efforts,
Parent may not terminate this Agreement under this Section 7.1(f); and provided,
further that the preceding proviso shall not in any event be deemed to extend
any date set forth in paragraph (b) of this Section 7.1; or
(g) by the Company, upon breach of any representation, warranty,
covenant or agreement on the part of Parent set forth in this Agreement, or if
any representation or warranty of Parent shall have become untrue, incomplete or
incorrect, in either case such that the conditions set forth in Section 6.2(a)
or (b) would not be satisfied (a "TERMINATING PARENT BREACH"); provided,
however, that if such Terminating Parent Breach is curable by Parent through the
exercise of commercially reasonable efforts within 30 days and for so long as
Parent continues to exercise such reasonable efforts, the Company may not
terminate this Agreement under this Section 7.1(g); and provided, further that
the preceding proviso shall not in any event be deemed to extend any date set
forth in paragraph (b) of this Section 7.1.
The party desiring to terminate this Agreement shall give written notice of
such termination to the other party.
SECTION 7.2 EFFECT OF TERMINATION. Except for any willful breach of this
Agreement by any party hereto (which willful breach and liability therefor shall
not be affected by the termination of this Agreement or the payment of any
Termination Fee (as defined in Section 7.3(a) hereof)), if this Agreement is
terminated pursuant to Section 7.1 hereof, then this Agreement shall become void
and of no effect with no liability on the part of any party hereto;
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<PAGE>
PROVIDED, HOWEVER that notwithstanding such termination the agreements contained
in Sections 7.2, 7.3 and 8.7 hereof and the provision to Section 5.4 hereof
shall survive the termination hereof.
SECTION 7.3 FEES.
(a) The Company agrees to pay Parent in immediately available funds
by wire transfer an amount equal to $45 million (the "TERMINATION FEE") if:
(i) this Agreement is terminated by Parent pursuant to Section
7.1(d) hereof, other than a termination pursuant to Section 7.1(d)(i) either (A)
after the occurrence of a Parent Material Adverse Effect or (B) in the event the
representations and warranties of Parent set forth in Article IV were not true
in all material respects at the time of the withdrawal, modification or
amendment referred to in such section; or
(ii) (A) Parent or the Company shall terminate this Agreement
pursuant to Section 7.1(e) hereof due to the failure of the Company's
shareholders to approve the Merger and this Agreement, (B) at the time of such
failure to so approve the Merger and this Agreement there shall exist an
Acquisition Proposal with respect to the Company that has not been publicly and
irrevocably withdrawn and (C) within nine (9) months after such termination, the
Company shall enter into a definitive agreement with respect to any merger,
consolidation, recapitalization, liquidation, tender offer, exchange offer or
other business combination involving the acquisition, purchase or change of
control of 50% or more of any class of equity securities of the Company (an
"ACQUISITION TRANSACTION") or any Acquisition Transaction shall be consummated.
(b) The Company shall pay the Termination Fee required to be paid
pursuant to Section 7.3(a) hereof (if all conditions thereto have been
satisfied) (i) not later than one (1) business day after the termination of this
Agreement by Parent or (ii) in the case of Section 7.3(a)(ii), at or prior to
the execution of an agreement described in Section 7.3(a)(ii)(C).
(c) Except as provided otherwise in this Section 7.3, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 NOTICES. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement to any
party hereunder shall be in writing and deemed given upon (a) personal delivery,
(b) transmitter's confirmation of a receipt of a facsimile transmission, (c)
confirmed delivery by a standard overnight carrier or when delivered by hand or
(d) when mailed in the United States by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by notice given hereunder):
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<PAGE>
If to the Company, to:
Genesys Telecommunications Laboratories, Inc.
1155 Market Street
San Francisco, California 94103
United States
Fax: (415) 437-1250
Attention: President
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
United States
Fax: (650) 493-6811
Attention: Jeffrey D. Saper, Esq.
Steve L. Camahort, Esq.
If to Parent or Merger Sub, to:
Alcatel
54, rue La Boetie
75008 Paris
FRANCE
Fax: 33-140-761-435
Attention: Pascal Durand-Barthez
with a copy to:
Shearman & Sterling
1550 El Camino Real
Menlo Park, California 94025
UNITED STATES
Fax: (650) 330-2299
Attention: Alan F. Denenberg, Esq.
Christopher D. Dillon, Esq.
SECTION 8.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained herein and in any certificate or other writing
delivered pursuant hereto shall not survive the Effective Time. All other
covenants and agreements contained herein which by their terms are to be
performed in whole or in part, or which prohibit actions, subsequent to the
Effective Time, shall survive the Merger in accordance with their terms.
SECTION 8.3 INTERPRETATION. References herein to the "knowledge of the
Company" shall mean the actual knowledge of the executive officers of the
Company. Whenever the words "include," "includes" or "including" are used in
this Agreement they shall be deemed to be followed
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<PAGE>
by the words "without limitation." The phrase "made available" when used in this
Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available. As used
in this Agreement, the term "affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under the Exchange Act.
The article and section headings contained in this Agreement are solely for
the purpose of reference, are not part of the agreement of the parties hereto
and shall not in any way affect the meaning or interpretation of this Agreement.
Any matter disclosed pursuant to any Schedule of the Company Disclosure Schedule
or the Parent Disclosure Schedule shall not be deemed to be an admission or
representation as to the materiality of the item so disclosed.
SECTION 8.4 AMENDMENTS, MODIFICATION AND WAIVER.
(a) Except as may otherwise be provided herein, any provision of this
Agreement may be amended, modified or waived by the parties hereto, by action
taken by or authorized by their respective Board of Directors, prior to the
Closing Date if, and only if, such amendment or waiver is in writing and signed,
in the case of an amendment, by the Company and Parent or, in the case of a
waiver, by the party against whom the waiver is to be effective; PROVIDED THAT
after the adoption of this Agreement by the shareholders of the Company, no such
amendment shall be made except as allowed under applicable law.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.5 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that neither the Company nor Parent
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
SECTION 8.6 SPECIFIC PERFORMANCE. The parties acknowledge and agree that
any breach of the terms of this Agreement would give rise to irreparable harm
for which money damages would not be an adequate remedy and accordingly the
parties agree that, in addition to any other remedies, each shall be entitled to
enforce the terms of this Agreement by a decree of specific performance without
the necessity of proving the inadequacy of money damages as a remedy.
SECTION 8.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California (regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof) as to all matters, including, but not limited to, matters of
validity, construction, effect, performance and remedies.
SECTION 8.8 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long
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<PAGE>
as the economic or legal substance of the transactions contemplated herein are
not affected in any manner materially adverse to any party hereto. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner.
SECTION 8.9 THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the Company and its successors and permitted assigns, with respect to
the obligations of Parent and Merger Sub under this Agreement, and for the
benefit of Parent and Merger Sub, and their respective successors and permitted
assigns, with respect to the obligations of the Company under this Agreement,
and this Agreement shall not, except to the extent necessary to enforce the
provisions of Article I and Section 5.6 hereof be deemed to confer upon or give
to any other third party any remedy, claim, liability, reimbursement, cause of
action or other right.
SECTION 8.10 ENTIRE AGREEMENT. This Agreement, including any exhibits or
schedules hereto and the Confidentiality Agreements constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements or understandings, both written and oral,
between the parties or any of them with respect to the subject matter hereof.
SECTION 8.11 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be deemed an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
ALCATEL
By:________________________________
Name:______________________________
Title:_____________________________
EDEN MERGER CORP.
By:________________________________
Name:______________________________
Title:_____________________________
GENESYS TELECOMMUNICATIONS
LABORATORIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
[Signature page to Agreement and Plan of Merger and Reorganization]
<PAGE>
EXHIBIT 2.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September ___, 1999 (this "Agreement"),
---------
between Alcatel, a company organized under the laws of France ("Parent"), and
------
certain shareholders of Genesys Telecommunications Laboratories, Inc., a
California corporation (the "Company"), as set forth on Exhibit A hereto
-------
(collectively, the "Individual Shareholders").
-----------------------
W I T N E S S E T H:
-------------------
WHEREAS, Parent, Merger Sub, a California corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and the Company propose to enter
----------
into, simultaneously herewith, an Agreement and Plan of Merger and
Reorganization (the "Merger Agreement"; terms used but not defined in this
----------------
Agreement shall have the meanings ascribed to them in the Merger Agreement),
which provides, upon the terms and subject to the conditions thereof, for, among
other things, the merger of Merger Sub with and into the Company;
WHEREAS, certain shareholders of the Company own such number of shares
of common stock, no par value, of the Company ("Common Stock") as is set forth
------------
on Exhibit A hereto; and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to
enter into the Merger Agreement and incur the obligations set forth therein,
Parent has required that the Individual Shareholders agree, and in order to
induce Parent and Merger Sub to enter into the Merger Agreement, each Individual
Shareholder has agreed, to enter into this Agreement with respect to all shares
of Common Stock now owned and which may hereafter be acquired by the Individual
Shareholders (the "Shares");
------
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and in the Merger Agreement, the parties hereto agree as follows:
<PAGE>
2
ARTICLE I
VOTING OF SHARES
----------------
SECTION 1.01. Vote in Favor of Merger; Grant of Proxy. (a) During the
---------------------------------------
period commencing on the date hereof and terminating at the Effective Time, each
Individual Shareholder, solely in his or her capacity as a shareholder of the
Company, agrees to vote (or cause to be voted) all shares of Common Stock
currently beneficially owned by such Individual Shareholder, and all shares of
Common Stock which such Individual Shareholder acquires in the future, at any
meeting of the shareholders of the Company, and in any action by written consent
of the shareholders of the Company, (i) in favor of the approval, consent,
ratification and adoption of the Merger Agreement and the Merger, and (ii)
against any action that would materially impede, interfere, or discourage the
Merger, and, other than the Merger and the transactions contemplated by the
Merger Agreement, against any merger, consolidation or other business
combination involving the Company, against any recapitalization, reorganization,
dissolution or liquidation of the Company and against any extraordinary
corporate transaction involving a disposition of 50% or more of the assets of
the Company, and against any action that would result in any material breach of
representation, warranty, covenant, or agreement of the Company under the Merger
Agreement.
(b) Each Individual Shareholder, solely in his or her capacity as a
shareholder of the Company, also hereby constitutes Parent, or any nominee of
Parent, with full power of substitution, as such Individual Shareholder's
irrevocable proxy and attorney-in-fact to vote and otherwise act (by written
consent or otherwise) with respect to such Individual Shareholder's shares of
Common Stock as indicated in Section 1.01(a) in the event that such Individual
Shareholder fails to comply with its obligations under such section. Each
Individual Shareholder intends this proxy to be irrevocable and coupled with an
interest and will take such further action and execute such other instruments as
may be necessary to effectuate the intent of this proxy. To the extent
inconsistent with the foregoing provisions of this Section 1.01, each Individual
Shareholder hereby revokes any and all previous proxies with respect to any
shares of Common Stock that such Individual Shareholder owns or has the right to
vote.
(c) Notwithstanding anything in this Agreement to the contrary, no
Individual Shareholder shall be required to exercise any option or convert any
Company security into Common Stock.
<PAGE>
3
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
OF INDIVIDUAL SHAREHOLDERS
--------------------------
SECTION 2.01. Representations, Warranties and Covenants of the
------------------------------------------------
Individual Shareholders. Each of the Individual Shareholders (referred to in
- -----------------------
this Section 2.01 as "he") hereby represents and warrants to Parent and Merger
Sub solely with respect to himself that:
(a) Holdings. He is the lawful record and beneficial owner of
the number of shares of Common Stock set forth on Exhibit A of this Agreement,
free and clear of all encumbrances, and, except as contemplated by this
Agreement, he is not a party to any voting trust, shareholder agreement, proxy
or other agreement or understanding in effect with respect to the voting or
transfer of any shares of Common Stock; except that __________ shares of Common
Stock owned by Alec Miloslavsky and __________ shares of Common Stock owned by
Gregory Shenkman are subject to certain forward contracts with Salomon Smith
Barney, Inc.
(b) Capacity; No Conflict. He has the legal capacity to enter into
this Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by such Individual Shareholder,
and, assuming the due authorization, execution and delivery by Parent, this
Agreement constitutes a legal, valid and binding obligation of such Individual
Shareholder. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of a benefit under any material mortgage,
indenture, lease, contract or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to such Individual Shareholder or such Individual
Shareholder's properties or assets. No consent, approval, order or authorization
of, or registration, declaration or filing with, any governmental body, agency,
official or authority is required by or with respect to such Individual
Shareholder in connection with the execution and delivery of this Agreement by
such Individual Shareholder or the consummation by such Individual Shareholder
of the transactions contemplated hereby, except for (i) any filings as may be
required under applicable U.S. or state securities laws and the securities laws
of any foreign country and (ii) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not prevent or
materially alter or delay any of the transactions contemplated by this
Agreement.
(c) Litigation. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any agency, court
or tribunal, foreign or domestic, or, to the knowledge of such Individual
Shareholder or any of his affiliates, threatened against such Individual
Shareholder or any of his affiliates or
<PAGE>
4
any of their respective properties or any of their respective officers or
directors, in the case of a corporate entity (in their capacities as such) that,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on his ability to consummate the transactions
contemplated by this Agreement. There is no judgment, decree or order against
such Individual Shareholder or any of his affiliates or, to the knowledge of
such Individual Shareholder or any of his affiliates, any of their respective
directors or officers, in the case of a corporate entity (in their capacities as
such) that could prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that could reasonably be
expected to have a material adverse effect on such Individual Shareholder's
ability to consummate the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARENT
---------------------------------------------------
Parent hereby represents and warrants to the Individual Shareholders
as follows:
SECTION 3.01. Authority Relative to This Agreement. Parent is a
------------------------------------
corporation duly incorporated and validly existing under the laws of France. The
execution, delivery and performance by Parent of this Agreement and the
consummation by Parent of the transactions contemplated hereby are within
Parent's corporate powers and have been duly authorized by all necessary
corporate action. This Agreement has been duly and validly executed and
delivered by Parent and, assuming the due authorization, execution and delivery
by the Individual Shareholders, constitutes a valid and binding agreement of
Parent enforceable against Parent in accordance with its terms.
SECTION 3.02. No Conflict; Required Filings and Consents. (a) The
------------------------------------------
execution, delivery and performance by Parent of this Agreement and the
consummation by Parent of the transactions contemplated hereby require no action
by or in respect of, or filing with, any governmental body, agency, official or
authority, whether federal, state, multinational (including, but not limited to,
the European Community), provincial, municipal, domestic or foreign, (insofar as
such action or filing relates to Parent) other than (i) compliance with any
applicable requirements of the HSR Act, the EC Merger Regulations, any foreign
laws regulating competition or antitrust, or the Exchange Act, (ii) approvals
and authorizations of self-regulatory and governmental organizations in the
securities and commodities field, and (iv) such other consents, approvals and
filings which, if not obtained or made, would not, individually or in the
aggregate, have a material adverse effect on Parent or materially impair the
ability of Parent to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by Parent of this
Agreement and the consummation by Parent of the transactions contemplated hereby
do
<PAGE>
5
not and will not (i) contravene or conflict with the organizational documents of
Parent, (ii) assuming receipt of or compliance with all matters referred to in
Section 3.02(a), contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to Parent or (iii) constitute a breach of or a default under
or give rise to a right of termination, cancellation or acceleration of any
right or obligation of Parent or to a loss of any benefit to which Parent is
entitled under any provision of any agreement, contract or other instrument
binding upon Parent or any license, franchise, permit or other similar
authorization held by Parent, other than, in the case of each of (ii) and (iii),
any such items that, individually or in the aggregate, would not have a material
adverse effect on Parent or materially impair the ability of Parent to
consummate the transactions contemplated by this Agreement.
ARTICLE IV
MISCELLANEOUS
-------------
SECTION 4.01. Amendment; No Waiver. (a) Any provision of this
--------------------
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by each Individual
Shareholder and Parent or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 4.02. Fees and Expenses. Except as otherwise provided herein,
-----------------
all costs and expenses (including, without limitation, all fees and
disbursements of counsel, accountants, investment bankers, experts and
consultants to a party) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
SECTION 4.03. Notices. All notices, requests, claims, demands and
-------
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
telecopy, facsimile, cable, telegram or telex, or by registered or certified
mail (postage prepaid, return receipt requested) or by a nationally recognized
courier service to the respective parties at their addresses as specified in
Exhibit B hereto.
SECTION 4.04. Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in
<PAGE>
6
full force and effect so long as the economic or legal substance of this
Agreement is not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent possible.
SECTION 4.05. Assignment; Binding Effect; Benefit. The provisions of
-----------------------------------
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, provided that no
--------
party may assign, delegate or otherwise transfer any of its rights, interests or
obligations under this Agreement without the prior written consent of the other
parties hereto, except that Parent may assign, delegate or otherwise transfer
any of its rights, interests or obligations under this Agreement to an affiliate
without the consent of the Individual Shareholders.
SECTION 4.06. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof, that the parties hereto would
not have an adequate remedy at law for money damages in such event and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
SECTION 4.07. Governing Law; Submission to Jurisdiction. (a) This
-----------------------------------------
Agreement shall be governed by the Laws of the State of California as applied to
contracts executed and to be performed entirely in such state.
(b) Each Individual Shareholder and Parent hereby irrevocably submits
to the non-exclusive jurisdiction of any California State court or any Federal
court sitting in the state of California in any action or proceeding arising out
of or relating to this Agreement, and each Individual Shareholder hereby
irrevocably agrees that all claims with respect to any such action or proceeding
may be heard and determined in such California State court or in such Federal
court. Each Individual Shareholder and Parent hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding.
SECTION 4.08. Headings. The descriptive headings contained in this
--------
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 4.09. Counterparts. This Agreement may be executed and
------------
delivered (including by facsimile transmission) in one or more counterparts,
each of which when executed and delivered shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
<PAGE>
7
SECTION 4.10. Entire Agreement. This Agreement and, to the extent
----------------
referred to herein, the Merger Agreement, constitute the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, between the parties,
or any of them, with respect thereto; provided, however, that any capitalized
-------- -------
terms used but not defined herein shall have the meanings ascribed to such terms
in the Merger Agreement. No addition to or modification of any provision of this
Agreement shall be binding upon either party hereto unless made in writing and
signed by the parties hereto.
<PAGE>
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above by themselves, as individuals, or
by their respective officers thereunto duly authorized.
ALCATEL
___________________________
By:
Title:
___________________________
Gregory Shenkman
___________________________
Alec Miloslavsky
___________________________
Ori Sasson
___________________________
Bruce Dunlevie
<PAGE>
9
EXHIBIT A
Ownership of Common Stock
Name Shares
---- ------
<PAGE>
10
EXHIBIT B
Addresses for Notices
If to the Parent:
Alcatel
54, rue La Boetie
75008 Paris
France
Attn: Pascal Durand-Barthez
Fax: 331-4076-1435
With a copy to:
Shearman & Sterling
1550 El Camino Real
Menlo Park, California 94025
Attn: Alan F. Denenberg, Esq.
Christopher D. Dillon, Esq.
Fax: (650) 330-2299
If to the Individual Shareholders:
c/o Genesys Telecommunications Laboratories, Inc.
1155 Market Street, 11th Floor
San Francisco, California 94103
Fax: (415) 437-1260
With a copy to:
In the case of Ori Sasson:
Jeff Saper
Steve L. Camahort
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Tel: (650) 493-9300
Fax: (650) 461-5375
<PAGE>
11
In the cases of Gregory Shenkman and Alec Miloslavsky:
Ed Kaufman
Irell & Manella
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
Tel: (310) 277-1010
Fax: (310) 203-7199
<PAGE>
Exhibit 99.1
ALCATEL TO ACQUIRE GENESYS TELECOMMUNICATIONS
LABORATORIES INC. IN A STOCK-FOR-STOCK TRANSACTION
Paris, France & San Francisco, California - September 28th 1999 - Alcatel
(Paris: CGEP.PA and NYSE: ALA) today announced it has entered into a definitive
agreement to acquire Genesys Telecommunications Laboratories, Inc. (NASDAQ:
GCTI), a leading provider of computer telephony integration (CTI) and enterprise
interaction management solutions. The planned stock-for-stock transaction values
Genesys at approximately $1.5 billion, on the basis of the current ten day
average Alcatel American Depositary Shares (ADS) stock price of $28.
This acquisition will be made by a merger under which shareholders of Genesys
will be given 1.667 Alcatel ADS in exchange for one Genesys share. There is a
'collar' on the deal so that the value for each given Genesys share will not
exceed $55 or be less than $45. The Alcatel ADS is a US security that represents
one-fifth of an Alcatel share and is listed on the NYSE. Completion of the
acquisition is subject to the expiration or termination of applicable waiting
periods under appropriate antitrust laws and approval by Genesys shareholders.
The deal is expected to be completed in January 2000.
"This is another major step for Alcatel which continues to move fast towards
high growth markets fuelled by Internet and now, e-commerce" said Serge Tchuruk,
Chairman and CEO of Alcatel "In the European enterprise market, where Alcatel is
expanding its voice leadership position into the data field, the combination
with Genesys state-of-the-art software-based interaction management technology,
will put us in an ideal position to participate strongly in the high growth call
center market. In the world wide carrier and ISP markets, where Alcatel has
become a major player in Intelligent Network applications, the synergies with
Genesys will enhance the development of powerful end-to-end networked customer
contact solutions, that carriers and ISP's will offer to their enterprise
clients."
Ori Sasson, chief executive officer for Genesys commented, "Genesys has realized
tremendous momentum in the customer interaction marketplace, providing solutions
for enterprise contact centers, eBusinesses and network service providers. The
merger with Alcatel will enable us to accelerate growth and solidify our
position as the market leader worldwide."
Through the purchase of Genesys, Alcatel will acquire a premier worldwide
position in CTI and interaction management solutions, providing a strong
strategic fit with its existing call center and intelligent network businesses.
Alcatel will be able to expand its value proposition by moving into the contact
center applications space and to provide an integrated offering.
This deal complements Alcatel's strategic initiatives in the US, following the
five acquisitions made during the last 12 months, including DSC and Xylan.
Alcatel is now well positioned to benefit from the exploding demand for voice
data integration in the US, the world's largest convergence market.
Following the close of the transaction, Genesys will immediately gain greater
access to the carrier and ISP market segments, thanks to Alcatel's products and
<PAGE>
commercial presence in these segments. Genesys will also benefit from easier
access to the medium-sized enterprise market, which is a core component of
Alcatel's enterprise business and for which the two companies will develop
optimized solutions. In addition, the two companies will further develop IP
converged voice and data solutions, leveraging Genesys's infrastructure-
independent position.
Genesys's leading position with systems integrators will be enhanced by this
deal, thanks to the expanded portfolio and it will be able to offer both
applications and infrastructure, matching the current industry trend. Within the
Alcatel group, Genesys will remain a stand-alone business, retain its name and
continue to be headquartered in San Francisco, CA. Ori Sasson remains CEO.
Genesys will continue to pursue an infrastructure-independent, media-independent
strategy.
"Genesys brings to Alcatel a leading team of managers, engineers and other
professionals with highly valuable experience, who will develop Alcatel's
offering in the applications space for both the enterprise and carrier/ISP
markets worldwide," said Olivier Houssin, Executive Vice President of Alcatel
Telecom.
About Alcatel
Alcatel builds next generation networks, delivering integrated end-to-end voice
and data communications solutions to established and new carriers, as well as
enterprises and consumers worldwide. With 120,000 employees and sales of EURO
21.3 billion ($25.0 billion), Alcatel operates in more than 130 countries.
About Genesys Telecommunications Laboratories
Genesys Telecommunications Laboratories, Inc. (Nasdaq: GCTI) pioneered the field
of Computer Telephony Integration (CTI) and today is a market leader in
Enterprise Interaction Management Software. The Company's interaction management
solutions help enterprises reduce costs, increase revenues, and transform the
way they manage interactions in the call/contact center and across the
enterprise. Genesys' open, scalable framework and interaction management
applications enable the broadest range of contact solutions in the industry,
including: integrated screen pop, load balancing, workforce management, outbound
dialing, data-driven routing, blended inbound/outbound, and Internet contact
center capabilities. Genesys' solutions architecture grows with the enterprise
and supports customer preference in communications channels - voice, Internet,
e-mail, etc. More information about Genesys and its products is available at
www.genesyslab.com.
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This document may include forward-looking statements within the meaning of Safe
Harbor provisions of the U.S. federal securities laws. These statements are
based on current expectations, estimates and projections about the general
economy and Alcatel's and Genesys's lines of business and are generally
identifiable by statements containing words such as "expects," "believes,"
"estimates," or similar expressions. Statements related to the future
performance involve certain assumptions, risks and uncertainties, many of which
are beyond the control of Alcatel or Genesys, and include, among others, foreign
and domestic product and price competition, cost effectiveness, changes in
governmental regulations, general economic and market conditions in various
geographic areas, interest rates and the availability of capital. Although
Alcatel and Genesys believe their respective expectations reflected in any such
forward-looking statements are based upon reasonable assumptions, they can give
no assurance that those expectations will be achieved.
